CHAPTER 7 DEFENCES TO NEGLIGENCE

CONTRIBUTORY NEGLIGENCE At common law it was a complete defence if the defendant proved that the claimant was guilty of contributory negligence. It no longer is the position but merely reduces the damages to the extent to which the claimant has been contributorily negligent. Butterfield v Forrester 1809 11 East 60. D partially obstructed highway by putting a pole across part of it. C riding very rapidly at dusk did not observe the pole and ran into it suffering injury. Had C been using ordinary care, he would have seen and avoided pole. At that time it was complete defence. Lord Ellenborough provided a useful guideline: one person being in fault will not dispense with anothers using ordinary care for himself. Two things must concur to support this action, an obstruction in the road by the fault of the defendant and no want of ordinary care to avoid it on the part of the claimant. Defendant seeking to establish contributory negligence must specifically plead and prove that: 1. The injury of which the claimant complains resulted from the particular risk which the claimant exposed himself by virtue of his own negligence 2. The negligence of the claimant contributed to his injury 3. There was fault or negligence on the part of the claimant. RISK The defendant must show that the harm sustained by the claimant belongs to that general class of perils to which the claimant was exposed by his own negligent conduct. E.g. riding in vehicle contrary to orders, and another vehicle collides into the car you are riding. You will be contributorily negligent. Johns v Livex Quarries Ltd 1952 2QB 608, C riding down a slope leading to bottom of quarry on the back of Ds vehicle, contrary to their orders, when another vehicle belonging to D was negligently driven into the back of the first vehicle. C was injured. By so riding C exposed himself not only to the risk of falling off the vehicle but also to the risk of being injured in the particular way in which he was injured. Court found C to be contributorily negligent. The risk to which the claimant subjects himself is still important even if self endangerment occurs prior to any negligence by the defendant. In Barret v Ministry of Defence 1995 3 ALLER 87, C drank himself unconscious and later died by choking in his own vomit. Widow sued defendant. CA held that once C had collapsed and the
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defendants had taken steps to care for him, the defendants had hereby undertaken a duty of care in respect of C. And since steps were clearly inadequate, Defendant were held liable in negligence subject to reduction in damages attributable to Cs contributory negligence in subjecting himself to harm through excessive drinking. CLAIMANTS NEGLIGENCE WAS A CONTRIBUTORY FACTOR If the claimant was negligent but his negligence was not a cause operating to produce the damage there would be no defence. E.g. leaving donkey on road negligently. D drives his lorry at fast speed thereby killing donkey. D could have avoided the donkey but he was driving too fast. It has been held that notwithstanding his own negligence, C could claim full damages. Davies v Mann 1842 10 M&W 546 In maritime context, the courts in cases of collisions at sea apportion the loss according to the degree to which each party was at fault. Henley v Cameron 1949 LJR 989, D left his car unlit on highway at night. Cs husband was riding his motorcycle carelessly collided into the car and died. An apportionment of liability was made. The Law Reform (Contributory Negligence) Act 1945, a claimant whose own acts contributed to his injury or damage is no longer completely defeated. He simply has his damages proportionately reduced to the extent to which he was at fault. Admiralty Cmrs v SS Volute 1922 1 AC 129, the volute a convoy leader changed her course without signaling. The Radstock on discovering that she was thereby endangered, negligently put on full steam ahead. Although this negligence was subsequent to that of the Volute, both vessels were held to blame for their ensuing collision, and apportionment under the act was directed. In Davies v Swan Motor Co (Swansea) Ltd 1949 2 KB 291, Contrary to orders, C was standing on the steps on the offside of a dust lorry. The lorry driver turned to the right without warning just as a following vehicle was overtaking him and c was injured in the ensuing collision. Both drivers were negligent and C was held contributorily negligent. THE NEGLIGENCE OF THE CLAIMANT Difference between defence of contributory negligence and the tort of negligence. To establish a defence, the defendant need not prove that the claimant owed the defendant a duty of care. Nance v British Columbia Electric Rly Co Ltd, 1951 AC601, the defendant need not prove that the claimant owed the defendant a duty of care.all that is necessary to establish such a defence is to prove .is that the injured party did not in his own interest take reasonable care of himself and contributed by this want of care to his own injury.

Lack of care on the part of the claimant must be proved by the defendant according to the usual standard of proof on a balance of probabilities. E.g. moped driver who does not wear helmet, or fails to fasten it securely, an employee who has wrongfully been exposed to asbestos fibres who continues to smoke in full knowledge of the risk to his lungs, passenger who does not wear seat belt or who knows the cars foot breaks do not work, driving in drunken drivers car knowing he is drunk. In Contrast, a coach passenger was held not to be contributorily negligent in 2002 where her injuries were exacerbated by the fact she failed to wear one of the fitted lap belts. Welsh v Messenger 2006 3 CL 238. (During that no legal requirement to wear seat belts by law). Also, if the negligence of the defendant puts the claimant in a position of imminent personal danger, conduct by the claimant which in fact operates to produce harm to him (but which is in agony of the moment) does not amount to contributory negligence. Jones v Boyce 1816 1 Stark 493. C a passenger in coach reasonably believed that the coach was about to overturn through the negligent driving of D the coach proprietor C therefore jumped off breaking his leg. Coach did not overturn, but C was not contributorily negligent and recovered in full from D. However, if the negligence of Defendant puts the claimant in a position of imminent personal danger, conduct by the claimant which in fact operates to produce harm to him (but which is reasonable in the agony of the moment) does not amount to contributory negligence. Critical question is whether claimant behaved reasonably in the dilemma in which the defendant placed him, due account being taken of the alarm which such a situation would engender in the reasonably prudent person On the other hand contributory negligence of an independent contractor is not imputed to the principle and that of a driver is not imputed to a passenger nor is that of a spouse imputed to his wife or her husband. And when a child is accompanied by an adult, the contributory negligence of the adult is not imputed to the child. Civil Liability (Contribution) Act 1978 makes parents safeguard their children and make them liable if they breach this duty to safeguard the childs safety. Contributory applies to cases where claimant has also deliberately harmed himself. In Reeves v Metropolitan Police Comr 2000 1AC 360, a sane prisoner committed suicide. Held act of suicide constituted contributory negligence such that damages could be reduced by 50%. Notwithstanding the fact that the duty owed by the police to protect the deceased from taking his own life. The Scope of Law Reform(Contributory Negligence) Act 1945 is to provide that where the defence of contributory negligence was previously available, the courts may now instead of
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exonerating the defendant from liability, reduce the damages awarded against him to the extent to which the claimant was contributorily negligent. Apportionment of Damages. The 1945 Act directs the court to reduce the award of damages as they think just and equitable having regard to the claimants share in responsibility for the damage. Decision reached on common sense basis. factors: Causative potency of the act and the blameworthiness of the claimants conduct.1 . VOLUNTARY ASSUMPTION OF RISK IS ASSUMPTION OF RISK PROPERLY REGARDED AS A DEFENCE. Consent of claimant may take two forms (1) consent to the actual invasion of his interest e.g. he invited someone to walk on his land or 92) consent to the risk of a tort being committed. Volenti non fit injuria assumption of risk. If defendant wants to succeed on ground of maxim volenti non fit injuria, must obtain a finding of fact that the claimant freely and voluntarily with full knowledge of the nature and extent of the risk he ran, impliedly agreed to incur it. If the defendants desire to succeed on the ground that the maxim volenti non fit injuria is applicable, they must obtain a finding of fact that the claimant freely and voluntarily with full knowledge of the nature and extent of the risk he ran, impliedly agreed to incur it. One view taken by court is that defendant has not in circumstances broken a duty of care. The other view, it is conceded that there has been a breach of duty but a successful plea of volenti removes the effects of negligence. ILLUSTARTIONS p184. 1. Actions by employees against employers Earlier cases would have succeeded with this plea but not anymore. In Smith v Baker & Sons 1891 AC 235 where C employed by D was drilling holes in a rock cutting and was aware of the danger caused by a crane continuously swinging crates of stones above his head. A stone fell out of the crane and injured him. An action against his employers in negligence was brought, D pleaded volenti. HL notwithstanding Cs knowledge of the risk, the evidence justified a finding that he had not voluntarily undertaken it. He did not consent to the particular thing being done which would involve risk and consented to the risk upon himself. Bowater v Rowley Regis Copn 1944 KB 476 C a carter was ordered by his employers D to take out horse known by them to be unsafe. C protested but eventually took out the
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horse. Later C was thrown off the cart when the horse bolted. Defence of volenti non fit injuria was rejected. E.g. if worker was susceptible to dermatitis and both she and employer knows this that her work entailed a slight risk of the disease. Employer held not liable. She took the risk and could not then complain. 2. Drunken pilots/drunken drivers volenti is concerned with future risks. In Nettleship v Weston 1971 2 QB 691, a friend teaching C how drive naturally knew she was inexperienced learner and was more likely to cause an accident endangering him. He had asked her frequently for reassurance that she was fully insured and he did not take full responsibility for whatever befell him and he did not undertake to absolve her from liability or not to sue her. Early case of Dann v Hamilton 1939 1 KB 509, court held volenti not a defence where C took a lift from drunk driver. However it changed in Pitts v Hunt 1991 1 QB 24 where C a pillion passenger on motorbike ridden by D knew D was uninsured and had no licence. After four hours of drinking together, C egged on D in reckless irresponsible and idiotic riding of the motorbike culminating in a disastrous accident. RTA prevented the defence of volenti from applying in road traffic accidents but CA held that notwithstanding Dann v Hamilton, a plea of volenti would have defeated Cs claim. Morris v Murray 1991 2 QB 6, where C agreed to go a flight in Ds plane while both drunk. Plane crashed and D died. CA upheld the plea of volenti. Did C appreciate danger he faced and was he capable of accepting of accepting responsibility for what happened to him? 3. Dangerous activities the defendant must show that the claimant consented not only to the risk of harm intrinsic to the game but also to the particular risk which culminated in injury to him. In Gillmore v ICC 1938 4 ALLER 331 C was member of Ds physical training class. During an exercise in which members of the class were lunging at each other, C was injured through losing his balance on a floor which was slippery due to Ds negligence. Held, C had not consented to the risk incidental to doing physical training on a slippery floor (although of course he had consented to the physical contacts which might occur in the course of the lunging exercise) and therefore the defence of assumption of risk failed. VOLUNTARY ACT Not only must the claimant consent to the risk but he must assume risk freely and voluntarily. E.g. claims by employees constitute judicial recognition that economic pressures negative voluntary conduct in the sense indicated. A man cannot be said to be truly willing unless he is position to choose freely and freedom of choice predicates not only full knowledge of circumstances on which the exercise of choice is conditioned so that he may be able to choose wisely.
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Court refused defence of volenti to rescuers. Volenti is a complete defence, contributory negligence is a partial defence.

EXCLUDING LIABILITY Unfair Contract Terms Act excludes prohibits the exclusion or limitation of liability for death or personal injury resulting from negligence. Volenti restricted by unfair Contract Terms Act 1977. Any contract or notice to. that effect is invalid.