THE COPPERBELT UNIVERSITY

SCHOOL OF BUILT ENVIRONMENT

ES340 LAW OF CONTRACT AND TORT
2016

DEFENCES TO NEGLIGENCE

The two main defences to negligence are:

1. Volenti non fit injuria (Voluntary assumption of risk) – occurs when a plaintiff freely
consented to run the risk of damage.

2. Contributory negligence - occurs when the plaintiff has contributed to his or her own injury
or damage.

VOLUNTARY ASSUMPTION OF RISK (Volenti non fit Injuria)

Volenti non fit injuria means no harm is done to a person who voluntarily consents to the risk.
It applies to certain situations and activities where the plaintiff consents to enter into a risky
situation, knowing the risk that may cause harm having no legal redress for such injury. It should
be stressed that in order for the defence to be relied upon, there must be not only complete
knowledge of danger, but also consent. Where it applies, volenti operates as a complete defence
so as to prevent the plaintiff from recovering any damages.

Requirements of defence
To succeed in the defence of voluntary assumption of risk, the defendant will need to establish
that:
 knowledge of the risk - the plaintiff actually knew of the nature and extent of the risk;

 exercise of free choice by the plaintiff; and

 voluntary acceptance of the risk- the plaintiff voluntarily assumed (agreed) to run the
risk of damage and assumed the risk of having no legal redress

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Scope of application
Volenti as a defence will apply in certain situation or activities where people are aware of the
risk involved such as contact sports, extreme sports, and aircraft joyrides. For example:
 Participants in sport voluntarily undertake to run the lawful risks inherent to the game.

 On the same principle, spectators voluntarily undertake to the lawful risks in attending
sports events and may not sue if injured during the performance of such events.

Volenti successful in Morris v Murray

The plaintiff went for a ride in a private plane piloted by the defendant, despite the fact that he
knew the defendant was drunk. The plane crashed and the plaintiff was injured.

Held: It was held that the pilot’s drunkenness was so extreme and obvious that participating in
the flight was like engaging in an intrinsically and obviously dangerous occupation. The defence
of volenti succeeded. Accepting lifts with drunken pilots is more dangerous than with drunken
drivers.

Requirement of Consent and Exceptions

Mere knowledge of the risk involved in a particular event or activity is usually not sufficient to
rely on the defence of volenti: there must be consent. The defence of volenti will not apply to the
danger arising from the following situations:
 employer and employee cases;

 rescue cases; and

 accepting lifts with drunken drivers

(a) Employer and employee cases

The employer–employee relationship is not an equal one hence it would be unlikely that the
plaintiff would be found to have accepted the risk merely by continuing to work, but for fear of
losing their job.
General rules

1. Merely continuing to work by the employee does not indicate consent.

2. Exercise of free choice by the plaintiff. Volenti will apply where the employee was under no
pressure to take a particular risk but deliberately chose a dangerous method of working (see
ICI Ltd v Shatwell (1965)).

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Volenti was not successful in following cases:

Smith v Baker (1891).

The plaintiff was employed by the defendants on the construction of a railway. While he was
working, a crane moved rocks over his head. Both he and his employers knew there was a risk of
a stone falling on him and he had complained to them about this. A stone fell and injured the
plaintiff and he sued his employers for negligence. The employers pleaded volenti non fit injuria
but this was rejected by the court.

Held: Although the plaintiff knew of the risk and continued to work, there was no evidence that
he had voluntarily undertaken to run the risk of injury. Merely continuing to work did not
indicate volens (consent).

Bowater v Rowley Regis Corporation (1944).

The plaintiff working as a rubbish collector was provided his employers (the defendants) with a
horse and cart. He was ordered to take the horse which was known to be restive and to have run
away on previous occasions. He protested but eventually obeyed. The horse ran away and the
plaintiff was thrown from the cart and got injured.

Held: the defendants were liable, and the defence of volenti non fit injuria did not apply. It was
not part of his work to manage unruly horses and he had not accepted the risk. It must be shown
that the plaintiff had consented and therefore the risk should lie on him.

Exercise of free choice – volenti was not successful in ICI Ltd v Shatwell (1965).

The plaintiff and his brother were working in the defendant’s quarry. They disregarded the
defendant’s orders and also statutory regulations by testing detonators without taking
appropriate precautions. The plaintiff was injured in an explosion and claimed that the
defendants were vicariously liable.

Held: by ignoring his employers and listening to his brother’s unauthorised comments he had
assumed the risk of injury by exercising his own free choice.

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 (b) Rescue cases

The defence of volenti will not apply where a person is acting the compulsion of a moral or legal
duty undertakes to risks to save others or even the person rescued if they fail to take reasonable
for their own safety.
Legal principle: The fact that the plaintiff has engaged in or attempted a rescue does not mean
that he has voluntarily accepted the risk.

Baker v T E Hopkins & Son Ltd (1959)

The defendant’s employees had been placed in danger by being required to work in a confined
space with a petrol-driven engine producing poisonous fumes. A doctor attempted to rescue the
men and was killed by the fumes. He was aware of the danger at the time he attempted the
rescue.

Held: Volenti was held to be inapplicable as the doctor could not be said to have agreed to the
risk. He had only become involved after the defendant’s negligent act.

(c) Accepting lifts with drunken drivers

Dann v Hamilton (1939)

The defendant drove the plaintiff and her mother to London to see the Coronation lights. They
visited several public houses and the defendant’s ability to drive was clearly impaired. One
passenger decided that the driver was drunk and got out of the car. The plaintiff said she would
take the risk of an accident happening. A few minutes later there was an accident and the
plaintiff was injured.

Held: that volenti did not apply on these facts. Although the plaintiff had knowledge of the
potential danger and the defendant’s drunken state when accepting the lift, she did not consent
his negligent driving.

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CONTRIBUTORY NEGLIGENCE

In contributory negligence, the plaintiff is referred to as having ‘contributed to his/her own

misfortune’ and if he/she has been at fault in any activities that has led to his/her injury. Put
simply, this defence will only apply where the plaintiff was (at least in some part) responsible
for his/her damage. Contributory negligence is a partial defence and its effect is that it reduces
the possible damages to be awarded the plaintiff.

Requirements of defence
The defendant must show that the plaintiff:

1. failed to exercise reasonable care for their own safety, and

2. that this failure contributed to the damage.

Therefore the three questions that need to be addressed in the context of the above requirements
are:

1. Did plaintiff to exercise reasonable care for his own safety?

2. Did this failure contribute to the plaintiff’s damage? and

3. By what extent should the plaintiff’s damages be reduced?

Scope of application
Lawsuits involving motor vehicle accidents. For example:
 if one driver was speeding and another ran a stop sign, both drivers are negligent.
 accepting a lift with a drunk driver, and

 failure to wear a seat belt.

Jones v Livox Quarries

The plaintiff was riding on the tow bar at the back of a traxcavator on his way back to the
canteen. Another vehicle was driven negligently into the back of the traxcavator, causing injury
to the plaintiff.
Held: The plaintiff’s damages were reduced on the grounds of his contributory negligence. Lord
Denning said that the result would have been otherwise if the plaintiff had been, for example, hit
in the eye by a shot from a negligent sportsman.

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Froom v Butcher (1976) – failure to wear a seat belt

The plaintiff’s car was in a collision with the defendant’s car caused by the defendant’s
negligence. At the time of the accident the plaintiff was not wearing a seat belt. His injuries were
worse than they would have been if he had been wearing a seat belt.

Held: It was held by the court that the plaintiff’s damages should be reduced by 20 per cent. The
standard of care was to be judged objectively and the prudent man would wear a seat belt unless
there were exceptional circumstances.

Owens v Brimmell (1977) - failure to wear a seat belt

The plaintiff and defendant spent the evening on a pub crawl together. The plaintiff accepted a
lift home with the defendant although he knew the defendant was drunk. The defendant drove
negligently and the plaintiff received serious injuries in a crash.

Held: the plaintiff’s damages were reduced for his contributory negligence in riding with a
drunken driver and failing to wear a seat belt.

O’Connell v Jackson (1971) - failure to wear a crash helmet

The plaintiff,s motorcycle collided with the defendant’s motor car. at the time the of accident the
plaintiff was not wearing a crash helmet.

Held: the plaintiff’s damages were reduced by 15 per cent for his contributory negligence in
failing to wear a crash helmet.

Apportionment of damages
By what extent should the defendant’s damages be reduced?
If contributory negligence exists, any damages awarded to the plaintiff will be reduced.
The court will reduce damages based on what is ‘just and equitable having regard to the
plaintiff’s share in the responsibility for the damage’. In deciding by how much to reduce the
plaintiff’s award of damages, the courts will assess the comparative blameworthiness of the
parties. Courts use actual percentages to determine responsibility in contributory negligence
cases. If they are equally to blame the damages will be reduced by 50 per cent.
In Green v Bannister the court established that even where the plaintiff has contributed 60% to
the injuries he/she has suffered may be entitled to succeed in an action for damages.

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Comparison of the defences

Volenti non fit injuria Contributory Negligence

1. Requirements of defence D must show that P: D must show that P:

 knew the nature and extent of  Failed to exercise
the risk, and reasonable care for his/her
safety, and
 voluntarily agreed to it.
 that this failure contributed
to the damage.

2. Strengths Operates as a full defence Partial defence- offers greater

flexibility
3. Weaknesses Difficulties in establishing both Uncertainty and perceived
‘knowledge’ and ‘consent’ arbitrariness in apportioning
responsibility.

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