Contributory Negligence and Volenti Non Fit Injuria Defenses

Contributory Negligence: The Partial Defence

• Statutory Basis: Section 1(1) of the Law Reform (Contributory Negligence) Act 1945.

A finding of contributory negligence cannot be established unless the defendant (D) is first proven to be negligent.

Defining Contributory Negligence

Contributory negligence occurs where the harm suffered is partly the fault of D and partly the fault of the claimant (C). Consequently, any award of damages to C may be reduced by reason of C's contributory negligence, though the reduction cannot be 100%.

Case Example: Jones v Livox Quarries [1952]

The claimant disregarded his employer's safety instructions by riding on the back of a haulage vehicle. Another employee negligently crashed into the back of the vehicle, causing C injury. The court held that his own conduct exposed himself to the risk; he contributed to his injury. The court therefore reduced his damages.

Case Example: Owens v Brimmell [1977]

The plaintiff and D were drunk. On the journey home, D negligently crashed into a lamp post. The court held that accepting a lift from a driver who is known to be drunk may amount to contributory negligence, even when the defendant is also intoxicated.

Children and Contributory Negligence

Traditional View: Children can also be found guilty of contributory negligence. The child's age and maturity must be carefully considered before determining contributory negligence.

Case Example: Gough v Thorne [1966]

The plaintiff, a 13-year-old, wanted to cross a road. A truck driver stopped and beckoned her to cross the road, but she was struck down by another speeding car. Held: The fact that she relied entirely on the driver's signal to cross the road did not amount to contributory negligence. Lord Denning stated that "a very young girl cannot be guilty of contributory negligence."

To establish contributory negligence, a child must be expected to understand the nature of the danger. Very young children are unlikely to be found contributorily negligent since they cannot be expected to have sufficient awareness and experience.

Rescuers and Contributory Negligence

Case Example: Harrison v British Railway Board [1981]

Courts are reluctant to find contributory negligence in respect of rescuers due to policy reasons. Even if contributory negligence is found, the apportionment is minimal. This approach is taken to encourage people to rescue and not to hinder rescue efforts.

Volenti Non Fit Injuria: The Complete Defence

The defendant will not be liable if the claimant voluntarily assumed the risk involved. It is a complete defence; if the claimant consented, the defendant is not liable at all.

Establishing Volenti Non Fit Injuria

The defendant must prove that the claimant was:

1. Aware of the risks involved in the defendant's act.
2. Willingly accepted those risks.