Common Defences
Contributory Negligence
Volenti non fit injuria (consent)
Novus Actus Interveniens (new act coming
5. Ex turpi causa non oritur actio (illegality)
6. Exclusion of Liability
1. Contributory Negligence
• Only a partial defence
• Apportionment - s 28 of the Supreme Court of Judicature Act
1962, as amended
Jones v Livox Quarries [1952] 2 QB 608 Court of Appeal
Lord Denning MR:
• “Just as actionable negligence requires the foreseeability of
harm to others, so contributory negligence requires the
foreseeability of harm to oneself. A person is guilty of
contributory negligence if he ought reasonably to have
foreseen that, if he did not act as a reasonable, prudent man,
he might be hurt himself: and in his reckonings he must take
into account the possibility of others being careless.”
Contributory Negligence cont’d…
• It has nothing to do with whether or not the Claimant’s
carelessness was a cause of the accident, but rather it
contributed to his damage
• Owens v Brimmell [1977] - UK
• Gunness v Ramdeo (2001) – Trinidad & Tobago
In both cases, the Claimant sued the driver with
whom he was drinking , and then willingly got
into the car for a ride home.
• Webb v Rambally (1994) – Jamaica
The courts will hold negligent cyclist and
pedestrians partially responsible for their injury.
Lynch v Nurdin (1841)
Nurdin left a horse and cart unattended in the street
and young Mr. Lynch climbed onto the cart with a
friend and went for a joy-ride until he eventually fell
Perch v Transport Board (1981) –Barbados High Court
Child can be guilty of contributory negligent if he
does not display the degree of alertness and
perception expected from a child his age.
2. Volenti non fit injuria (consent)
• Complete defence
• No liability if the person voluntarily agreed to
partake in activity having full knowledge of both
the nature and extent of the risk
Drunk drivers
• Dann v Hamilton [1939]
• The Claimant was injured when she was a willing
passenger in the car driven by the Mr Hamilton. He
had been drinking and the car was involved in a
serious crash which killed him. In a claim for
damages the Defendant raised the defence of
volenti non fit injuria in that in accepting the lift
knowing of his drunken condition she had voluntarily
accepted the risk.
• Held:
• The defence was unsuccessful. The claimant was
entitled to damages.
Drunk drivers cont’d…
• Asquith J:
• "There may be cases in which the drunkenness of
the driver at the material time is so extreme and so
glaring that to accept a lift from him is like
engaging in an intrinsically and obviously
dangerous occupation, intermeddling with an
unexploded bomb or walking on the edge of an
unfenced cliff. It is not necessary to decide whether
in such a case the maxim 'volenti non fit injuria'
would apply, for in the present case I find as a fact
that the driver's degree of intoxication fell short of
this degree"
Nettleship v Weston [1971] 3 WLR 370
• Weston was a learner driver. She was taking lessons
from a friend. The friend checked that the
defendant's insurance covered her for passengers
before agreeing to go out with her. On one of the
lessons Mrs Weston turned a bend, Mr Nettleship
told her to straighten the wheel but Mrs Weston
panicked and failed to straighten the wheel. She
approached the pavement and Mr Nettleship
grabbed the handbrake and tried to straighten the
wheel but it was too late. She mounted the
pavement and hit a lamp post. Mr Nettleship
fractured his knee..
Nettleship v Weston [1971]
• The defendant argued that the standard of care
should be lowered for learner drivers and she also
raised the defence of volenti non fit injuria in that in
agreeing to get in the car knowing she was a
learner, he had voluntarily accepted the risk
• Held: A learner driver is expected to meet the same
standard as a reasonable qualified competent
driver. Volenti did not apply as he had checked the
insurance cover which demonstrated he did not
waive any rights to compensation. His damages
were reduced by 50%
Volenti case law
• Conden v Basi [1985] – A football player was injured
from a tackle, which was described by the referee
as "reckless and dangerous" and "serious foul play”.
• Morris v Murray [1991] – After drinking all day, both
parties decided to go for a plane ride. Morris drove
to the airfield and Murray flew the plane. Plane
crashed and Morris died.
• Blake v Galloway [2004], CA - The claimant was
injured whilst playing about with other members of
his band throwing sticks at each other. The
defendant appealed a denial of his defence on
non fit injuria.
3. Limitation
• According to the Limitation of Certain Actions Act
1997, as amended:
• A claim must be brought within 4 years...
• 5(2)(a) from the date of tort
• 5(2)(b) from the date the injury was noticed
• 5(3)(a) from the date of death
4. Novus Actus
• Where there is a new intervening act this may break
the chain of causation removing liability from the
defendant. The legal test applicable will depend
upon whether the new act was that of a third party
or an act of the claimant.
• If the act of the third party was foreseeable, the
defendant remains liable and the chain of
causation remains in tact. If the act of a third party
is not foreseeable this will break the chain of
causation and the defendant is not liable for the
actions of the third party
Baker v Willoughby [1970]
• B was hit by W’s car and suffered a sprained ankle. B
later got shot in his leg, which resulted in amputation.
o Held: W remained liable for the loss of amenity and lower earning capacity
even after the amputation.
• The fact that the sprained ankle put B in a vulnerable
position, and that the thief escaped, the courts wanted
to give some kind of compensation for B’s subsequent
hardship, even though novus was clear.
• Lord Pearson – although the argument of novus seemed
to make logical sense, it would produce a “manifest
injustice” if it were allowed to succeed.
Novus - Act of the claimant
• If the claimant's actions are deemed reasonable
the chain of causation remains in tact and the
defendant is liable for the actions of the claimant. If,
however, the claimant's actions are unreasonable
in the circumstances the chain of causation is
broken and the defendant is not liable for the
actions of the claimant
• Reeves v Commissioner of Police of the Metropolis
McKew v Holland [1969]
• McKew sustained an injury at work due to his employer's
breach of duty. He strained his back and hips and his leg
was prone to giving way. Whilst in this state he
attempted to climb down a steep concrete staircase
without a handrail unaided. He got part way down and
felt his leg give way so he jumped 10 steps to the
bottom. He suffered a fractured right ankle and was also
left with a permanent disability.
o Held:
The claimant's action amounted to a novus actus interveniens because his action
in attempting to climb the steps unaided knowing that his leg might give way
was unreasonable. The defendant was therefore not liable for the injuries
resulting from the incident on the stairs.
Baker v TE Hopkins & Son Ltd [1959] 1 WLR 966 Court of Appeal
Mr Ward and Mr Wileman were employed by the defendant,
Hopkins. They had been called to clean out a well. Hopkins tested
the atmosphere in the well by putting a lighted candle down the
well. The candle returned still lighted and thus he concluded the
atmosphere was fine. He and Ward then took a petrol motored
pump down the well started it up and left the well leaving the
engine running on its own. The motor ran for 1 1/2 hours before it
stopped of its own accord. Before leaving the site Mr Hopkins told
Mr Ward and Mr Wileman not to go down the well until the fumes
have cleared. The following morning Hopkins again told the two
not to go down the well until he had arrived on the site. In breach
of these orders Mr. Ward went down the well and was overcome
by fumes. Mr Wileman called for assistance and went down the
well after him. The claimant, Dr Baker, then arrived on the scene.
He too went into the well to seek to rescue the two. Unfortunately
all three died of carbon monoxide poisoning.
Rescuers cont’d…
• Held:
• The doctors actions were not a novus actus interveniens. It
was foreseeable that if a defendant by his negligence places
another in peril that someone may come to his rescue and the
doctor's actions were not unreasonable in the circumstances.
The Claimant's action was not defeated by volenti non fit
injuria. He was and as such his actions did not count as freely
and voluntarily accepting the risk.
• Morris LJ:
• it was said that Dr. Baker had been "unreasonably" brave. If a
rescuer acts with a wanton disregard of his own safety it might
be that in some circumstances it might be held that any injury
to him was not the result of the negligence that caused the
situation of danger. Dr. Baker tied a strong rope round his
body and arranged for the rope to be held by those on the
surface, and arranged to maintain oral communication with
them. He in no way acted recklessly or negligently.
5. Ex turpi causa non oritur actio (illegality)
Ashton v Turner and Anr. [1981]
After a car robbery, the getaway driver crashed the car.
The other thief sued for his injuries
Revill v Newbery [1996]
R tried to break in to Mr. N’s house and was shot. He sued
for injuries.
Only successful because of the duty of care owed under
Occupier’s Liability.
6. Exclusion of Liability
• “Do so at your own risk” is a complete defence
• This will then result in consent
White v Blackmore [1972]
A spectator at a car racing event was injured when a
car ran into the fence and sent the posts flying.
Sign said: Jalopy racing is dangerous and the
organisers accept no liability for any injury including
death howsoever caused