Chapter 5: General

Defences
Prepared by: Ms Suloshiny Segaran
 • General defences apply to a range of different torts
• Defences are concepts and/or assertions that are put
forward by the Defendant to reduce the gravity of his
liability or negate the liability imposed on him
altogether.
• When dealing with various torts, there are essentially
Defences three general defences that are available for the
Defendant to plead.
• These general defences are as follows:
• Contributory Negligence
• Volenti Non Fit Injuria (Consent)
 • Common law traditionally
provided that anyone who was
partly responsible for the harm
done to them could not recover
in tort.
Contributory • However, this was criticized to
Negligence have caused considerable
(Partial injustice.
Defence)
• This position has now changed
by virtue of the Law Reform
(Contributory Negligence) Act
1945.
• This defence may be successfully
pleaded if the Defendant can
show that the Claimant was
responsible, to some extent, for
his own injuries or damage
sustained by him.
• Essentially, this defence requires
the Defendant to show that the
Claimant failed to take reasonable
care of his own safety which
resulted in him being partially
responsible for his injuries.
The effect of this defence is that whatever damages have been awarded
by the courts in finding the Defendant liable, these damages will be
reduced in proportion to the claimant’s negligence.

Damages will be reduced to an amount that court thinks is just and fair,
taking into account the claimant’s responsibility towards the damage
that occurred.
 This defence can be used in
relation to the following torts:

Negligence

OLA 1957 & 1984

Occupiers Liability Visitors Trespassers
Act

Nuisance

Rylands v Fletcher
A specific type of nuisance, a form of strict liability, where the defendant may be
liable without having been negligent.
When the C is a child:
• Gough v. Thorne (1966)
• 13 year old girl wanted to cross the road
• A lorry driver stopped and signalled that she
could cross
• She crossed without stopping to check if there
was another vehicle coming up from behind the
lorry.
• There was indeed another vehicle which hit and
killed her
• Question to the court: could she be found to be
contributorily negligent?
• Held: no she was not. She had not fallen below
the standard of care expected of her as a 13
year old.

This was because it's 1966, and the kids back

then was dumber hence standard of care was
set more lenient
• Yachuk v. Oliver Blais Co Ltd
(1949)
• 9 year old bought gasoline from the
defendants, played with it and
ended up with serious burns
• The defendant was found to be
negligent in selling gasoline to a
child so young
• The defendant attempted to plead
the defence of contributory
negligence but failed as the court
found that a 9-year-old could not
be expected to appreciate the
dangers of gasoline

Because it happened many years ago

• Evans v. Souls Garage (2001)
• 13 year old bought petrol from the
defendant with the intention of
inhaling the fumes
• The petrol accidentally spilled,
caught on fire and the claimant was
badly burnt
• The defendants were found to be
negligent and pleaded the defence
of contributory negligence
• The court reduced the damages by
one third for the claimant’s
contributory negligence in playing
with the petrol

Because he's 13yo he's old enough to know what's

dangerous hence contribute to part of the negligence,
plus its year 2001 a 13yo was expected to be wiser
Road Accident Cases
It is unlawful not to wear a seatbelt in a car or other
vehicle. Applies to both adults and children.
• Froom v. Butcher (1976)
• Here, the court set out standard reduction of
damages when it comes to cases where the
claimant fails to wear a seat belt
• If wearing a seat belt could have completely
prevented the injury from occurring altogether,
then damages awarded are to be reduced by
25%
• If wearing a seat belt could have reduced the
intensity of the injury that would have occurred
anyway, then the damages awarded are to be
reduced by 15%

Because she's not wearing a seatbelt,

that's why if wearing might reduce injury
When C gets into a car with a drunk driver;
Owens v Brimmel (1977)

• Both the driver and his passenger had drunk

about eight to nine pints of beer, and on their
way home the driver lost control of his car so
that it collided with a lamppost. The passenger
sued in negligence. The driver said the
passenger was contributorily negligent.
• Passenger may be guilty of contributory
negligence if he rides with the driver of a car
whom he knows has consumed alcohol in such
quantity as is likely to impair to a dangerous
degree that driver’s capacity to drive properly
and safely

Raises contributory by drunk driver to share the liability with

passengers if accident because someone KNOW you're
not capable to drive.
Booth v White [2003]
• The Claimant and his friend had
been out drinking but had not
been together all of the night.
The Claimant got a lift home
from this friend and knew that he
had been drinking but did not
know how much. They had an
accident on the way home.
• It was decided that the
Claimant had not contributed
to his injuries; he had no way of
knowing that the driver of the
car was over the limit and he had
no responsibility to check.
When the C is a cyclist
Griffith J’s Obiter dicta statements
in Smith v Finch (2009): cyclists
who are not wearing helmets when
they suffer an injury should be held
liable for those injuries if it can be
shown on the balance of
probabilities that a helmet would
have prevented them.

Might contribute to contributive liability

Errors of Judgment
• Jones v. Boyce (1816)
• the claimant was riding on top of the
defendant’s carriage when the reins of one of
the horses broke. It looked like the coach might
topple over and so the claimant jumped from
the top of the coach, breaking his leg in the
process.
• At the end, the coach stayed on the road so if
the defendant had stayed on the coach, he
would not have broken his leg.
• The court held however that he was not
contributorily negligent and had acted
reasonably in an emergency situation and even
the most reasonable people are susceptible to
errors in judgment.

If you think you might face an accident, so you try to jump

out or safe yourself but causes a bigger harm you won't be
contributary liable because this is an emergency and you're
trying to save yourself
How are damages
calculated?
• Discretion of the court
Badger v Ministry of Defence
• Man whose lung cancer was caused partly by the
defendant’s negligence, and partly by his own failure
to give up smoking.
• The defendant accepted that they were more to blame
than the claimant, because they had breached safety
laws by exposing him to asbestos at a time when the
risks were already known.
• The court therefore found that even if the smoking
and the asbestos had been equal causes, the claimant’s
liability should be no more than 50%.
• There was a further factor to take into consideration,
in that for the first 20 years that he smoked, Mr
Badger could not be considered contributory
negligent, because he could not reasonably be
expected to foresee that doing so could injure his
health.
• Therefore the court concluded, the appropriate
reduction on damages for contributory negligence
was 20%.

Since smoking was not known to cause

cancer at the first 20 years because science
haven't known so, but after the research was
once found Badger still continue smoking,
hence contributary liability only started
calculating after it was known that smoking
 • This phrase means, to one who
Volenti volunteers, no harm is done.
Non Fit • The defence applies where the
Injuria claimant has in some way
(Consent) consented to what was done by
the defendant, on the basis that
(Complete in giving consent the claimant
defence) was voluntarily taking the risk of
harm.
• If volenti is proved, the
defendant will avoid liability
completely.
• Would it be reasonable for the
defendant to think that the
claimant had consented by virtue
of his behaviour? – must be
freely entered and voluntary
agreement by the claimant in full
knowledge of circumstances.

Must not be orally could also be action voluntary

Elements of volenti non fit injuria:
There are 3 elements
1. Voluntary Employment relationship you have no choice but to
follow hence can't raise volenti non fit injuria, you

2. Agreement
must be voluntarily to raise

3. Made in full knowledge of the

nature and extent of the risk
Must know the whole
situation, full knowledge,
100%
1. Voluntary : IF the claimant is not
in a position to exercise free choice,
the defence will not succeed. Most
commonly seen in employment
relationships and rescuers.
2. Agreement: May be express or
implied.
Very important

Nettleship v Weston (1971)

• The defendant 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. In UK u must have
insurance for
passengers to sit in
• 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. 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% under the Law Reform
(Contributory Negligence) Act 1945 to reflect the
degree to which he was contributing.

Driving case
Smith v. Baker (1891) –
• The defendant operated a crane in a negligent manner
where stones swung above the claimant’s head.
• The claimant was aware of this and of the real risk
that at any time, a stone could fall on his head.
• He complained to his employer, the defendant about
it but nothing was done. He had no choice but to
continue working. One day, a stone actually fell on
him.
• The defendant pleaded the defence of consent.
Held: The HOL did now allow it. The claimant could be
said to have given the consent freely as he was under
pressure as an employee of the defendant to keep
working.

C/F

Employee have no say for his or her's income, because he

was under pressure to keep on working hence did not do it
voluntarily in an employment relation.
Imperial Chemical Industries v. Shatwell
(1965) –
• Claimant and his brother worked for the
defendants.
• They were given the task of testing out some
detonators and told to take the necessary
precautions while doing so. They carried out
the tests without taking the said precautions.
• The detonators exploded and the claimant was
injured. The claimant sued his brother and the
defendants with the intention of holding the
latter vicariously liable for the negligence of his
brother and for breach of their duties to ensure
their health and safety.
• Held: The claim failed as his brother was
successfully able to rely on the defence of
volenti.

This guy did not wear safety gear even though given
and tested the detonators but exploded

If given safety tools and did not utilize it its your fault
3. Knowledge: C must have knowledge of
the full nature and extent of the harm
Woolridge v. Sumner (1963) –
• Spectators at a sporting event would be
deemed to have voluntarily assumed any
risk caused by the players as long as
whatever risk that materialises does not
result from any intentional or reckless
behaviour.

Note: The test for deciding if the C has

full knowledge is subjective; for example in
instances where the C is drunk, the
question is whether the C was so
intoxicated that he was incapable of
appreciating the nature of the risk.

As a spectator of a match, if the player is playing by the rule and

accidentally hurt a spectator u can't sue because while you buy
ticket you had already given consent.
 The Road Traffic Act 1988
This Act states that the volenti defence will
not succeed if the C is a passenger in a
vehicle with no insurance.
Pitts v Hunt (1990)
• C was a passenger on a motorbike
driven by the defendant.
• The defendant was drunk, had never
Special passed a driving test, was not insured
and drove dangerously.
cases: • The C encouraged him in this
behaviour.
• Volenti was not available due to the
provisions of the Road Traffic Act
1988, and the claim failed.

Every driver must have insurance for passenger, people who have
no insurance cant take volenti at most contributive
Rescuers It must be a real emergency to claim volenti

This may be an issue where the negligence

of the defendant causes an emergency
situation that requires the actions of a
rescuer, be it professional or amateur
Haynes v. Harwoord (1935)
• A policeman tried to stop a couple of
runaway horses which had bolted when
a child threw stones at them.
• In trying to do so, one of the horses fell
on him and he sustained serious injuries.
• The COA held that the defence of
volenti could not apply because the
police office was acting as a rescuer as a
part of his duty to protect the public

A police man did not consent to rescue citizens

Cutler v. United Dairies (London) Ltd
(1933)
• If the risk taken by the claimant is
unnecessary, then it is likely that the
defence of volenti will apply.
• Here, the facts are similar to the case of
Haynes v. Harwood where the horses
bolted.
• However, they ran into a field and
posed no danger to anyone.
• The claimant tried to capture the horses
and injured himself in the process.
• The defendant successfully pleaded the
defence of volenti as there was no real
emergency here

This case was different from

Haynes's because there are no one
around to rescue and no emergency
Sports
Woolridge v Sumner (1953) – as above
Blake v Galloway (2004)
• The claimant, a 15 year old boy, was out with
four of his friends including the defendant.
The boys started throwing pieces of bark
chippings and twigs at each other.
• The claimant did not join in at first but then
threw a piece of bark chipping at the defendant
hitting him in the leg.
• The defendant picked it up and threw it back at
the claimant. The piece of bark struck the
claimant's eye resulting in serious injury.
• The claimant brought an action contending
that the injury was caused by the battery and or
negligence of the defendant.

Diffence of Volenti succeded because the kid

consented to play together
• The defendant raised volenti non fit
injuria.
• The trial judge rejected the
defence of volenti but held that
the damages should be reduced
by 50% under the Law Reform
(Contributory Negligence) Act
1945.
• The defendant appealed
contending that there was no
breach of duty and that the judge
was wrong to reject the defence
of volenti.
Held:

Appeal allowed.
• In the context of 'horseplay'
there is a breach of the duty of
care only where the defendant's
conduct amounts to recklessness
or a very high degree of
carelessness.
• The defendant had consented to
the risk of injury occurring
within the conventions and
understanding of the game.
 • An inevitable accident is one
Not Important
where the defendant could not
possibly have avoided the
incident, regardless of hos much
Inevitable care the defendant had taken.
accident • In a fault-based tort such as
negligence, this means that the
defendant will not be liable.
 • This defence may be used when
the damage is caused by natural
forces only in circumstances that
Act of the defendant could not have
been expected to foresee or
God guard against.
• Defence rarely works.
The End