THE TORT OF NEGLIGENCE - DEFENCES

DEFENCES TO NEGLIGENCE

a)    Contributory negligence

This is a partial defence. Contributory negligence refers to conduct by the injured party that is a contributing cause of her injuries. A court may reduce the amount of damages paid to the claimant if the defendant establishes that the claimant contributed to their own injury or loss.

In Sayers v Harlow UDC 1958, the claimant was injured whilst trying to climb out of a public toilet cubicle that had a defective lock. The court held that the claimant had contributed to her injuries by the method by which she had tried to climb out.

In Fitzgerald v Lane & Patel 1989 the claimant crossed the road whilst the lights were at red for pedestrians. The first defendant driver collided with him and the claimant was thrown from the bonnet of that car into the road, where he was run over by a car driven by the second defendant. The claimant suffered severe spinal injuries that led to partial paralysis, but it could not be proven which impact caused the paralysis. In awarding damages the then House of Lords attributed blame in the proportion of 50% against the claimant and 25% each against the two speeding drivers.

b)    Volenti non fit injuria

Volenti non fit injuria means the voluntary acceptance/assumption of risk of injury. This defence is available to the defendant where both parties have expressly consented to the risk, or may be implied by conduct of the claimant.

In ICL v Shatwel, the claimant and his brother disregarded safety precautions whilst using detonators, resulting in injury to the claimant. The court upheld the defence of volenti non fit injuria. The claimant disregarded his employer’s statutory safety rules and consented to the reckless act willingly.

It should be noted that an awareness of risk is not sufficient to establish consent. The defendant must prove that the claimant was fully informed of the risks and that they consented to them.