Part B The law of obligations 7: The law of torts and professional negligence 1136 Defences to negligence
The amount of damages awarded to the claimant can be reduced if it is shown that they contributed to
their injury. The defendant can be exonerated from paying damages if it can be proved that the claimant
expressly or impliedly consented to the risk. In employment situations, an employer may be held
vicariously liable for the actions of their employee.6.1 Contributory negligence
A court may reduce the amount of damages paid to the claimant if the defendant establishes that they
contributed to their own injury or loss, this is known as contributory negligence.Sayers v Harlow UDC 1958
The facts: The claimant was injured whilst trying to climb out of a public toilet cubicle that had a defective
lock.
Decision: The court held that the claimant had contributed to her injuries by the method by which she had
tried to climb out.If the defendant proves that the claimant was at least partially at fault, courts will reduce the damages
awarded to them by a percentage that is just and reasonable. This percentage is calculated according to
what is established as the claimant's share of the blame. This is typically in the range of 10% to 75%,
however it is possible to reduce the claim by up to 100%.
In Fitzgerald v Lane & Patel 1989 the claimant crossed the road whilst the lights were at red for
pedestrians. The first defendant driver collided with him and the claimant was thrown from the bonnet of
that car into the road, where he was run over by a car driven by the second defendant. The claimant
suffered severe spinal injuries that led to partial paralysis, but it could not be proven which impact caused
the paralysis. In awarding damages the House of Lords attributed blame in the proportion of 50% against
the claimant and 25% each against the two speeding drivers. Damages were thus awarded in those
relative proportions.6.2 Volenti non fit injuria
Where a defendant's actions carry the risk of a tort being committed they will have a defence if it can be
proved that the claimant consented to the risk. Volenti non fit injuria literally means the voluntary
acceptance of the risk of injury.
This defence is available to the defendant where both parties have expressly consented to the risk (such
as waiver forms signed by those taking part in dangerous sports), or it may be implied by the conduct of
the claimant.ICI v Shatwell 1965
The facts: The claimant and his brother disregarded safety precautions whilst using detonators, resulting
in injury to the claimant.
Decision: The court upheld the defence of volenti non fit injuria. The claimant disregarded his employer's
statutory safety rules and consented to the reckless act willingly.An awareness of the risk is not sufficient to establish consent. For this defence to be successful the
defendant must prove that the claimant was fully informed of the risks and that they consented to them.
This point was made in Dann v Hamilton 1939 where a girl passenger in a car driven by a drunk driver was
injured. The defendant established that she was aware of the risk but could offer no evidence that she
consented to it. As a result of this case the defence of volenti is unlikely to succeed in cases where
consent is implied.FAST FORWARD