In today’s extremely litigious society there will always be those who are willing to pursue a claim in negligence if they feel a professional has been negligent which has resulted in them suffering some loss or damage. Unfortunately this is the World we now live in and due to the fact that a defendant (the person accused of negligence), does not intend for the bad consequence to happen, many who are accused of negligence are likely to be surprised that they find themselves in that predicament.
In the event that someone is found to be negligent there are a number of defences in UK law that may be used to reduce or nullify any damages or compensation that can be claimed. These defences do not remove the fact that a person has acted and has been proved to be negligent, moreover, to help them to reduce the impact and consequences of their actions. The three defences of Contributory Negligence, Volenti non fit injuria and Ex turpi causa will be considered within this article. The latter two are Latin terms which are typical of terminology within the UK legal system which have been used over many hundreds of years and continues to be used today. I will provide a translation for each together with the explanations below.
Contributory Negligence – This defence has been used for many years where a person who has been found to be negligent will try to prove that an injured party has contributed to their own loss or damage by their actions (or omissions). A passenger who is injured in a road traffic collision and is not wearing a seat belt is a good example. The driver of the vehicle may have caused the injury to the passenger and negligence may have been established, so there is no question of the driver’s negligence. The driver however may argue that, yes, they may have acted negligently and caused the accident and the injury and loss to the passenger, however if the passenger had been wearing their seat belt then in all likelihood the injuries sustained would have been less severe. Therefore, by not wearing the seatbelt the passenger has contributed (to the negligence) and to the extent of their injuries. These circumstances appear in the case of Froom v Butcher (1976), where the Court of Appeal reduced the amount of damages payable to the claimant by 20%.
Prior to 1945 if a person found liable in negligence could prove that the injured party had contributed to the negligence then this could negate any damages completely. Basically the rule was all or nothing, however, in 1945 a general power to apportion damages was given to the courts by the Law Reform (Contributory Negligence) Act 1945. This meant that as in the case of Froom v Butcher the courts have the discretion to consider the extent of contributory negligence and to award damages accordingly.
Volenti non fit injuria (‘to a willing person, no injury is done’) - If a defendant can demonstrate that the claimant (the person/party who have suffered loss, damage or injury as a result of the negligence of the defendant) voluntarily agreed to undertake the legal risk of harm at their own expense then this can negate any damages completely. Unlike contributory negligence which allows the courts to apportion damages, volenti non fit injuria is a complete defence. When using volenti as a defence the defendant must show that the claimant acted voluntarily in the sense that they were able/capable of exercising free choice. The courts will consider the ability of a person to be able to make a free choice and therefore whether they are able/capable of making a voluntary assumption of risk. This will be a matter of fact in each individual case and the courts will consider things such as mental capacity, alcohol and substance consumption etc.
The case of Morris v Murray (1991) is a commonly quoted case in respect of Volenti; The plaintiff (Morris) agreed to be flown by the defendant (Murray) in his light aircraft though he knew the defendant was inebriated. The plaintiff drove the car which took them to the airfield and he helped to start and refuel the aircraft, which was piloted by the friend. Shortly after take-off the aircraft crashed, killing the pilot and severely injuring the plaintiff. At first instance the court found the defendant failed in his claim of volentii non fit injuria, but the plaintiff succeeded in negligence.
Held: The defendant’s appeal was allowed. The defence of volenti non fit injuria applied, and the claim failed. The plaintiff willingly embarked upon the flight, knowing that the pilot was drunk; that the danger in embarking upon the flight was both obvious and great and the plaintiff was not so drunk as to be incapable of appreciating the nature and extent of the risk involved, and, therefore, he was to be taken to have fully accepted the risk of serious injury and implicitly discharged the pilot from liability for negligence in relation to the flying of the aircraft; and that, accordingly, the maxim volenti non fit injuria applied as a defence to the plaintiff’s claim. Source: www.swarb.co.uk
There are however statutory restrictions on the use of volenti In the case of car passengers. Section 149 of the Road Traffic Act 1988 prohibits any restriction on the driver’s liability to his passenger when required to be covered by insurance. Therefore a driver who is found to be negligent which cases injury, loss or damage to his passengers cannot use volenti as a defence.
Ex turpi causa no oritur action (‘from a dishonourable cause an action does not arise’) - A person who is injured whilst involved in a criminal act may be denied an action. In these circumstances the courts are likely to find that no duty of care is owed. The case of Ashton v Turner and Anr (1981) provides a good example; ‘The Claimant was injured when the Defendant crashed the car in which he was a passenger. The crash occurred after they both had committed a burglary and the Defendant, who had been drinking, was driving negligently in an attempt to escape. The judge dismissed the claim holding that as a matter of public policy the law would not recognise a duty of care owed by one participant in a crime to another. He held in the alternative that, even if a duty of care was owed, the Claimant had willingly accepted as his the risk of negligence and injury resulting from it’. Source: www.e-lawresources.co.uk/
UK case law is well established with many other case examples that demonstrate the application (or not) or each of the three defences discussed above. Law can often appear unclear and complicated at first glance and I always advise my students that the most effective way of understanding the law is to research previous cases. Anyone who wants to find out and understand more about this area of law will find that a simple internet search will provide you with all of the information you need.
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