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.
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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.
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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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