Defences in Tort

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There are two options open to stop a defendants liability:
1) by denying the claimant a cause of action (i.e. the defendant was not negligent; no duty, too remote) 2) providing the defendant with an appropriate defence

Volenti non fit injuria (consent)
Willing acceptance of the risk associated with the negligence; knowledge is not enough Complete escape of liability
Lord Denning in Nettleship v. Weston = nothing will suffice short of an agreed waiver of any claim for negligence: asking for insurance in Nettleship No consent to shortcomings in safety: Simolden v. Wurtworth (negligent referee)

Dann v. Hamilton (drunk driver) – claimant chose to travel by car, knowing the driver was under the influence. The driver was killed and the claimant was injured and claimed the volenti defence. Held; apart from extreme cases, the maxim does not prevent claimants who knowingly and willingly accept the risks of drink driving from succeeding in their claim. This was not an extreme case so the injured claimant could recover.

ICI v. Shatwell (two brothers negligent) – two brothers, employed by the appellants, cause an explosion by performing an act contrary to statute an company policy and they knew the risks involved. Held; where employees had deliberately disobeyed an order, volenti was a complete defence provided the defendant employer was not at fault and therefore it succeeded.

Wooldridge v. Sumner (horse rider) – rider of a horse lost control and hit the photographer. Held; spectators knowingly accepted the risk of lapse of skill or judgement in sporting competitions, so the volenti defence was available to the horses owner, unless the competitors actions were reckless.

White v. Blackmore (spectator rail) – man injured and killed while watching a race partly due to a negligently erected spectator rail. Signs outside the ground absolved the liability of the organisers from harm ‘however caused’ to the spectators. The dead mans family claimed against the organisers. Held; volenti was not a defence as the man did not know of the risks associated with the defendants negligence in safety precautions, but were excluded from liability by the signs, which they were allowed under OLA s.2(1)

Morris v. Murray (drunk pilot) – claimant willingly embarked on a flight on a plane piloted by his friend, with whom he had been drinking alcohol all afternoon. He also helped start and refuel the aircraft. Held; as the risk was so obvious and great, and the plaintiff was sober enough to appreciate this, the volenti defence was available. This would be an ‘extreme case’ as per Dann v. Hamilton.

Johnstone v. Bloomsbury (ill doctor) – the claimant was a doctor, part of his contract stated that he be required to work extra hours. As a result, the claimant became ill from lack of sleep. Held; the term on the contract could be construed as a term excluding or restricting liability for negligence and thus void under UCTA s.2(1). Also, the contractual exclusion defence had to be seen in the light of the duty of care owed to the defendant’s employee, the claimant.

Contributory Negligence
Where fault is found on the part of both the claimant and the defendant, damages will be reduced accordingly to what is equitable Law Reform contributory Negligence Act: courts give effect to fairness S.1(1) reflect the relative responsibility for the damage suffered

Stapley v. Gypsum Mines (unsafe roof) – 2 workers in a mine were told to bring down an unsafe roof – they could not and carried on working and one of them died when the roof collapsed. Held; the workers joint decision to carry on working was a contributory cause of death.

Froom v. Butcher (no seatbelt) – man injured in a car crash as a result of the defendants negligent driving. He suffered head and chest injuries as he was not wearing his seatbelt. Held; the question in determining contributory negligence was what was the cause of the damage, not the accident, so...
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