LT W4 – DEFENCES
Three defences
1. Contributory negligence,
2. Consent (volenti non fit injurio),
3. Illegality (ex turpi causa non oritur actio).
Contributory negligence (1)
C’s own negligence contributed to the harm s/he suffered
o Needs both negligence (= failure to take reasonable care) and
causation
Eg D negligently crashes his car into C’s car, C wasn’t wearing a seatbelt—
C is injured
o But for D’s negligence, there would have been no crash, no injury to
C
o But for C’s negligence, he would have suffered no (or lesser) injury
How does the defence work?
o Law Reform (Contributory Negligence) Act 1945, s 1:
Damages reduced ‘to such an extent as the court thinks just and
equitable having regard to the claimant’s share in the
responsibility for the damage’
‘Share’ means NO POSSIBILITY OF 100% CONTRIBUTORY
NEGLIGENCE
Consent (2)
You cannot complain of actions and injuries you consented to.
The duties in tort law are there for your protection, not for your
manipulation.
General defence in tort, e.g. battery and trespass. So e.g. LSE is normally
an institution everyone trespasses but they gave consent to you using the
facilities so it is not trespass, and same goes for battery in that when you
offer a handshake to someone and they shake it back no battery is
committed because both parties show consent.
How does it apply in negligence?
Consent to D’s specific acts:
o If I agree to the very actions of yours which injure me, you will
have a defence to any claim I bring, e.g. ICI v Shatwell (most cases
are not like this)
Three defences
1. Contributory negligence,
2. Consent (volenti non fit injurio),
3. Illegality (ex turpi causa non oritur actio).
Contributory negligence (1)
C’s own negligence contributed to the harm s/he suffered
o Needs both negligence (= failure to take reasonable care) and
causation
Eg D negligently crashes his car into C’s car, C wasn’t wearing a seatbelt—
C is injured
o But for D’s negligence, there would have been no crash, no injury to
C
o But for C’s negligence, he would have suffered no (or lesser) injury
How does the defence work?
o Law Reform (Contributory Negligence) Act 1945, s 1:
Damages reduced ‘to such an extent as the court thinks just and
equitable having regard to the claimant’s share in the
responsibility for the damage’
‘Share’ means NO POSSIBILITY OF 100% CONTRIBUTORY
NEGLIGENCE
Consent (2)
You cannot complain of actions and injuries you consented to.
The duties in tort law are there for your protection, not for your
manipulation.
General defence in tort, e.g. battery and trespass. So e.g. LSE is normally
an institution everyone trespasses but they gave consent to you using the
facilities so it is not trespass, and same goes for battery in that when you
offer a handshake to someone and they shake it back no battery is
committed because both parties show consent.
How does it apply in negligence?
Consent to D’s specific acts:
o If I agree to the very actions of yours which injure me, you will
have a defence to any claim I bring, e.g. ICI v Shatwell (most cases
are not like this)
