•CONTRIBUTORY

NEGLIGENCE
• If a person suffers damage partly through their
own fault and partly through the fault of another,
the damages that person can recover shall be
reduced to the extent a court thinks just and
equitable.
• The defence of contributory negligence is only a
partial defence and the defendant will still have to
pay some damages.
• CAR DRIVER DROVE BEYOND SPEED LIMIT AND
INJURED THE MOTORCYCLIST.MOTORCYCLIST
FAILED TO WEAR SAFETY HELMET.MOTORCYCLIST
CONTRIBUTED TOWARDS HIS INJURY.
Froom v Butcher(1976)The claimant was in a car accident caused by the defendant’s
negligence. He was not wearing his seatbelt. Seatbelts were not
compulsory at that time. He suffered head injuries which he would not have suffered if he
had worn a seatbelt. It was held that he had been contributorily negligent and his damages
were reduced by 20%.
Capps v Miller(1989)
• The Court of Appeal held in favour of the
defendant. The claimant’s damages were reduced
by 10% to reflect contributory negligence.

• Jones v Livox Quarries[1952]

• It was held that the claimant was 20%
contributory negligent.(claimant was a quarry
worker)
Davies v Swan
Motor(1949)-
contributory
negligence was
established
• Harrison v British Railways Board(1981)
In Harrison v British Railways Board [1981] 3
All E.R. 679, the plaintiff was the guard on the
train, and he saw the defendant attempting to
board a moving train. Instead of signaling the
driver to stop or to apply the emergency
brakes, he gave the incorrect signal which
resulted in the train continuing to accelerate
away from the station. The plaintiff then tried
to grab hold of the defendant who fell off the
train and therefore injured the plaintiff.
Despite holding the defendant liable for the
plaintiff’s injury, the Court found that had the
plaintiff given the correct signal or applied the
emergency brakes, he would probably have
reduced the possibility of injury and its
severity. Accordingly, the Court reduced the
damages recoverable by the plaintiff by 20 per
cent.
• Jones v Boyce(1816)-The claimant was sitting on
top of the defendant’s coach as it was going down
hill. A defective rein broke and the claimant,
thinking it would crash, jumped off and broke his
leg. The coach did not crash. It was held that a
reasonable and prudent person would have acted
in the same way and the claimant was not
contributorily negligent.
• Revill v Newbery
The claimant entered the defendant’s land intending to steal, but was shot by the
defendant. The defendant was sued for negligence by the would-be burglar, and
successfully raised the defence of contributory negligence, reducing his damages
by ⅔.
-The Claimants action was successful but his damages were reduced by 2/3 under
the Law Reform (Contributory Negligence) Act 1945 to reflect his responsibility for
his own injuries.
• Reeves v Metropolitan Commissioner(1999)
• the defendant was liable, however damages were
reduced by 50% under the Law Reform
(Contributory Negligence) Act 1945.
• Gough v Thorne(1966) The defence of contributory
negligence was therefore inapplicable.
This Case is Authority For…A person’s age is relevant to
whether they took reasonable care for their safety. Very
young children cannot be expected to take any care, and so
cannot be contributorily negligence. Older children can be,
but this will depend on what was reasonable for a child that
age.
 Evans v Souls Garage
A 13-year-old boy bought petrol from the
defendants and was burnt. Damages were
reduced by a third for his contributory negligence
in playing with petrol, which he knew to be
dangerous.

In Yachuk v Oliver Blais & Co Ltd [1949] the defendants sold

petrol to the 9-year-old claimant. The claimant was burned
playing with it but was not contributorily negligent.
Nettleship v Weston [1971] 3 WLR 370 Court of Appeal
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. 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 also at fault.
• VOLENTI NON FIT INJURIA /CONSENT
• Volenti non fit iniuria (or injuria) (Latin: "to a
willing person, injury is not done") is a common
law doctrine which states that if someone willingly
places themselves in a position where harm might
result, knowing that some degree of harm might
result, they are not able to bring a claim against
the other party in tort .
• Volenti non flt injuria is a complete defence, and if
it is successful then a claimant will recover no
damages.
• Smith v Baker(1891)The claimant worked for the
defendant building a railway. The claimant knew that a
crane swung rocks over his head. He complained to the
employer but continued working. A rock fell and injured
him. The employer argued that he had consented. The
House of Lords said that he had not acted voluntarily and
had not consented to the risk. He had no real choice but
to keep working.
• Imperial Chemical Industries Ltd v Shatwell [1965] AC 656 House of Lords

The claimants were brothers who were qualified shotfirers employed by the
defendant. They were injured as a result of an explosion at the defendant's quarry
caused by the brothers' negligence. They had insufficient wire to test a circuit to allow
them to test from a shelter. Another worker had gone to fetch more wire but the
brothers decided to go ahead and test with the shorter wire. Each brother claimed
against the defendant based on their employer's vicarious liability for the negligence
and breach of statutory duty of the other brother. The defendant raised the defence
of volenti non fit injuria in that the brothers had full knowledge of the risk and were
acting against express instructions.

Held-the defence of volenti non fit injuria was held to apply and the employer is not
vicariously liable for the injuries
Haynes v Harwood [1935] 1 KB 146
Here the claimant, a policeman, was injured
when he attempted to stop a runaway horse.
He was under a duty because of his
employment to try to stop the horse and
protect the public so he had not acted
voluntarily. The court would not accept the
defence.
Cutler v United Dairies [1933] 2 KB 297
A horse bolted into an empty field. Nobody
was in actual danger. The claimant tried to
calm the horse but was injured. The court held
that the claimant was indeed volenti and had
exer- cised free choice. The defence
succeeded.
• Baker v TE Hopkins and Sons
• This Case is Authority For…
• Where the defendant creates a very dangerous situation,
warning people not to go near may be insufficient
to discharge their duty. Any warning should properly
enable the other party to understand why the situation is
dangerous. If a warning is inadequate, then the fact that
another person ignored it will not necessarily constitute
a novus actus interveniens.
• Wooldridge v Sumner
• It was held that spectators at sporting events have
voluntarily assumed the risk of harm caused by
the players, providing it does not result from
intentional or reckless behaviour
• Condon v Basi [1985] 1 WLR 866 Court of Appeal

The Claimant suffered a broken leg during a tackle from the Defendant during a football
match. The Claimant was playing for Whittle Wanderers and the Defendant for the Khalso
Football Club. Both clubs were in the Leamington local league. The question for the court
was the standard of care expected of a football player.
Held:

The standard of care varies according to the level of expertise the player has. The
Defendant was in breach of duty as the tackle was reckless even with regards the standard
expected of a local league player. Whilst a participant can be taken to accept the risks of
injury inherent to such sporting activities they do not accept the risk of injury which
occurs outside the rules of the game.
• SMOLDON V WHITWORTH [1997]
• FACTS:
• P broke his neck after scrum collapsed during rugby match refereed by D
• unusually high number of collapsed scrums in the game
• ISSUE:
• could the defence of consent be used?
• HELD:
• consent defence failed: P consented to ordinary risks of game but not to D's negligent
failure to apply rules intended to protect players from injury
• Passengers
• The Road Traffic Act 1988, as interpreted by the
courts, effectively excludes the use of volenti to
allow drivers to avoid liability to passengers. s.149
provides that any attempt to avoid liability to
passengers will be ineffective.
14.1 Illegality
• If someone suffers harm while engaged in an illegal act they cannot sue in
tort.
• The rule is based on public policy that it would be against the public
conscience to allow claims in such circumstances. The principle is known as
ex turpi causa non oritur actio. The classic example is the next case.

Case:

Ashton v Turner The claimant and defendant were

[1981] two burglars. While driving away
from a burglary the defendant
crashed and injured the claimant. The
court rejected the claim because at
the time of the injury the claimant
was involved in a crime.
• Pitt v Hunt(1991)
• The plaintiff was the pillion passenger on a motor cycle, involved
in a collision with a vehicle driven by the second defendant,
which resulted in the death of the motor cycle rider and serious
injuries for the plaintiff. The plaintiff and the rider had been
drinking before the accident and the plaintiff knew that the rider
did not have a motorbike licence and insurance. The plaintiff was
also encouraging the rider to drive recklessly. The plaintiff
brought an action in negligence against the driver of the other
vehicle and the first defendant, who was the deceased rider’s
personal representative. The Queen’s Bench outright dismissed
the claim against the second defendant and dismissed the claim
against the first defendant, on grounds that the plaintiff was
contributory negligent to the extent of 100 per cent. The plaintiff
appealed the decision in regards to the first defendant.
• The court held that the defendant could not rely volenti because
of the Road Traffic Act (in fact illegality was successfully pleaded,
so the defendant was not liable).