DEFENCES
1 contributory negligence
2 volenti non fit injura
3 ex turpa causa oritur non action
4 Limitation periods
CONTRIUBTORY NEGLIGENCE
Historically, if the D faulted in anyway, he could not get any recovery at all.
Butterford v Forrester
P refused compensation where he placed a pole (public nuisance) in the street
where he was riding a horse violently.
Last clear chance rule develops
Davis v Mann 1842
The D ran over and killed the P’s horse. The P had contributed to the outcome
as he mistakenly tied the donkey in a way that it was easy for it to wander onto
the road.
If D had the last clear chance to avoid the accident, P could fully recover
despite his contributory negligence.
In other words, it was a softening on the contributory negligence rule.
- Even if the plaintiff did contribute by negligence, he could still recover if
the defendant had the ‘last clear chance’ to avoid the harm or injury.
Why?
➢ Just because the P was negligent, it shouldn’t abolish his chance to
maintain a cause of action
➢ Merely being negligent shouldn’t grant permission for D to drive fast and
run over the donkey, as he is still more blameworthy.
, Civil Liability Act 1961
• S.56 Abolished last chance rule
• 2.34.1 Introduced apportionment of fault between P and D in cases of
contributory negligence
- damages recoverable by a negligent plaintiff be reduced as the court
should think just having regard to the degrees of fault of the plaintiff and
defendant
• Where degrees of fault can’t be apportioned then fault is judged to be
equal
Other notes
o Where D raises the contributory defence, the law presumes that P
will take care for his own safety in the ordinary conducting of activity
Possibly means that as a P, you could rebut them defence by saying your
negligence didn’t go over the line of merely caring for your own safety
o D relying upon the defence need not show the P owes a duty of care
o Contract statute may limit amount of damages recoverable
o Applies across all civil actions, not just tort.
Initial test:
Carroll v Clare co co 1975
RTA on road from limerick to Ennis. P consumed 6/7 drinks and was going at
about 40 mph. You go to effectively 180 degrees of bend on this road.
Council said that the speed was legit. Paul thinks otherwise. P crashed at
the junction and claimed that the signs were wrong. Jury said council 70%
responsible, Plaintiff driver 30& responsible.
SC overturned this and said it was the other way around at the same ratio.
Set out test
- Fault =
(i) what would a reasonable person in P’s position do
(ii) D’s contribution to the accident.
O Sullivan v Dwyer
- Both P and D must contribute causally to the accident and injury BEFORE
apportionment may arise.
, Defence wont arise where it is shown that the plaintiff didn’t CAUSALLY
contribute to the accident.
DOCTRINE OF IDENTIFICATION
* imputed contributory negligence
• s.35 > a person can be vicariously (indirectly) liable for acts of another.
• Transfers defence in vicarious liability situations. Ex: employers/
employees, master/ servant, personal representative/ deceased…
EXAMPLES ON CONT. NEGLIGENCE
1) Failure to mitigate damage
s.34.2.b
• Obligation to lessen damage once incurred and failure to do so =
contributory negligence.
Must take all reasonable steps to limit in other words.
2) Seat Belt failures.
Hammil v Oliver 1977
1977 onwards =
- no seat belt is cont. neg.
exceptions available: pregnancy, obesity, post-operative convalescence
Mcgouran v Reynolds 1988
Van driver friend claimed that because they were delivery business making
numerous stops, they have different seat belt obligations. This was rejected.
S.34.2c
• P’s failure to take reasonable care for his safety wont amount to cont.
neg unless the injury results from a particular risk to which his conduct
has exposed him.
• So, P will presumed to be taking care of own safety, but is not obliged to
in all circumstances
1 contributory negligence
2 volenti non fit injura
3 ex turpa causa oritur non action
4 Limitation periods
CONTRIUBTORY NEGLIGENCE
Historically, if the D faulted in anyway, he could not get any recovery at all.
Butterford v Forrester
P refused compensation where he placed a pole (public nuisance) in the street
where he was riding a horse violently.
Last clear chance rule develops
Davis v Mann 1842
The D ran over and killed the P’s horse. The P had contributed to the outcome
as he mistakenly tied the donkey in a way that it was easy for it to wander onto
the road.
If D had the last clear chance to avoid the accident, P could fully recover
despite his contributory negligence.
In other words, it was a softening on the contributory negligence rule.
- Even if the plaintiff did contribute by negligence, he could still recover if
the defendant had the ‘last clear chance’ to avoid the harm or injury.
Why?
➢ Just because the P was negligent, it shouldn’t abolish his chance to
maintain a cause of action
➢ Merely being negligent shouldn’t grant permission for D to drive fast and
run over the donkey, as he is still more blameworthy.
, Civil Liability Act 1961
• S.56 Abolished last chance rule
• 2.34.1 Introduced apportionment of fault between P and D in cases of
contributory negligence
- damages recoverable by a negligent plaintiff be reduced as the court
should think just having regard to the degrees of fault of the plaintiff and
defendant
• Where degrees of fault can’t be apportioned then fault is judged to be
equal
Other notes
o Where D raises the contributory defence, the law presumes that P
will take care for his own safety in the ordinary conducting of activity
Possibly means that as a P, you could rebut them defence by saying your
negligence didn’t go over the line of merely caring for your own safety
o D relying upon the defence need not show the P owes a duty of care
o Contract statute may limit amount of damages recoverable
o Applies across all civil actions, not just tort.
Initial test:
Carroll v Clare co co 1975
RTA on road from limerick to Ennis. P consumed 6/7 drinks and was going at
about 40 mph. You go to effectively 180 degrees of bend on this road.
Council said that the speed was legit. Paul thinks otherwise. P crashed at
the junction and claimed that the signs were wrong. Jury said council 70%
responsible, Plaintiff driver 30& responsible.
SC overturned this and said it was the other way around at the same ratio.
Set out test
- Fault =
(i) what would a reasonable person in P’s position do
(ii) D’s contribution to the accident.
O Sullivan v Dwyer
- Both P and D must contribute causally to the accident and injury BEFORE
apportionment may arise.
, Defence wont arise where it is shown that the plaintiff didn’t CAUSALLY
contribute to the accident.
DOCTRINE OF IDENTIFICATION
* imputed contributory negligence
• s.35 > a person can be vicariously (indirectly) liable for acts of another.
• Transfers defence in vicarious liability situations. Ex: employers/
employees, master/ servant, personal representative/ deceased…
EXAMPLES ON CONT. NEGLIGENCE
1) Failure to mitigate damage
s.34.2.b
• Obligation to lessen damage once incurred and failure to do so =
contributory negligence.
Must take all reasonable steps to limit in other words.
2) Seat Belt failures.
Hammil v Oliver 1977
1977 onwards =
- no seat belt is cont. neg.
exceptions available: pregnancy, obesity, post-operative convalescence
Mcgouran v Reynolds 1988
Van driver friend claimed that because they were delivery business making
numerous stops, they have different seat belt obligations. This was rejected.
S.34.2c
• P’s failure to take reasonable care for his safety wont amount to cont.
neg unless the injury results from a particular risk to which his conduct
has exposed him.
• So, P will presumed to be taking care of own safety, but is not obliged to
in all circumstances
