GENERAL DEFENCES
Contributory
Negligence
Law: s.1(1) Law
Reform (Contributory
Negligence) Act 1945
Condition:
1. C didn’t take
reasonable care of
his own safety
2. This led to the
damage
Applicable where C
has established
negligence but is partly
to blame
Consequence:
apportionment will be
made (Froom) BUT
cannot be 100%
reduction (Pitts)
Volenti Non Fit Injuria
Illegality
Mistake
Necessity
Complete defence to
show D is not liable at
all because C knew of
the nature and extent of
the risk
When C is injured
doing an illegal act
– Ashton
Mistake of law or
fact generally
NOT a defence in
negligence
Only a defence
for intentional
damage –
necessary to
prevent greater
damage to public
or third party (F v
West Berkshire)
so not applicable
in negligence
cases - Rigby
Condition:
1. D must show C
was aware of the risks
involved and willingly
accepted those risks
2. C made a
genuine choice Bowater
-
-
Exception: Dilemma
principle (emergency
situations)
Revill
-
Note
Mere appreciation of
risk insufficient –
Lynch
Mere knowledge is
insuffient. Must fully
understand Osborne
If there is
agreement – UCTA
Implied consent
possible
Condition: must
be causal link
between illegal act
and tort – National
Coal Board v
England
BUT if mistake is
such a
reasonable man
could have made
it, may indicate D
was not negligent
- Roe
Inevitable
Accident
Where accident
not intended by
D and could
NOT have
been avoided
with exercise of
reasonable
care
Special situations
Special situations
Children
Child must understand
nature of danger and
his conduct – Yachuk
Rescuers
Courts reluctant to find
contributory
negligence and even if
yes apportionment is
minimal - Harrison
Employer-Employee
Volenti not applicable
due to economic
pressures – Smith cf ICI
v Shatwell where
employee had a choice
Rescuers
Not available due to
public policy. Rescuer is
deemed to be acting
instinctively due to
moral or social
conscience – Haynes
Sports
Can apply because
players are deemed to
have taken risk
voluntarily - Simms