All defences for torts:
Contributory negligence:
A Partial defence which will reduce d’s responsibility but not eliminate it. Its a statutory defence
found under the law reform act 1945 but previously was common law. Its where both c and d are
responsible with it being up to the judge to determine the amount of blame given to the D. Under
s.1, the judge will determine the full number of damages and then apply contrib neg to amend the
amount. 2-part test- c must have failed to take care of their own safety and failure to take care was a
contrib cause of the damage suffered. [Gough]- child of 13 not expected to have fully develop road
sense. [sayers]- damages reduces 25 as they tried to climb out of toilet. [Revill] burglar 2/3 rd to
blame being shot.
VOLENTI non fit injuria (CONSENT):
No injury can be done to a willing person ie the vol assumption of risk. 2-part test – D must prove
that C fully knew about the risk [Stermer]- C hadn't been shown how to use the bike properly. And C
voluntarily accepted the risk [smith]- C not voluntary, was under instruction of employment.
Rescuers will not have consented as it’s a part of their job so they don’t have a choice [ogwo]-no
defence against firefighter. If C consents, then it’s a complete defence. Consent can be implied by
involvement ect: watching sports games - [Murray]-6yo hit by puck. Hazardous activities-
[Poppleton]- inexperienced rock climber copy pros. [Morris]- pilot had 17 whiskies and C still
consented to flying with D.
Warning notices:
complete defence under 2.3(4) OLA1957 ‘a warning is ineffective unless in all circumstance it was
enough to enable the visitor to be reasonably safe. Is case dependent. [Rae]- deep pit in dark shed
couldn’t be warned against as it wouldn’t have been seen whereas [Westwood]- D want liable as
there was a sign saying auth personnel only.
Contributory negligence:
A Partial defence which will reduce d’s responsibility but not eliminate it. Its a statutory defence
found under the law reform act 1945 but previously was common law. Its where both c and d are
responsible with it being up to the judge to determine the amount of blame given to the D. Under
s.1, the judge will determine the full number of damages and then apply contrib neg to amend the
amount. 2-part test- c must have failed to take care of their own safety and failure to take care was a
contrib cause of the damage suffered. [Gough]- child of 13 not expected to have fully develop road
sense. [sayers]- damages reduces 25 as they tried to climb out of toilet. [Revill] burglar 2/3 rd to
blame being shot.
VOLENTI non fit injuria (CONSENT):
No injury can be done to a willing person ie the vol assumption of risk. 2-part test – D must prove
that C fully knew about the risk [Stermer]- C hadn't been shown how to use the bike properly. And C
voluntarily accepted the risk [smith]- C not voluntary, was under instruction of employment.
Rescuers will not have consented as it’s a part of their job so they don’t have a choice [ogwo]-no
defence against firefighter. If C consents, then it’s a complete defence. Consent can be implied by
involvement ect: watching sports games - [Murray]-6yo hit by puck. Hazardous activities-
[Poppleton]- inexperienced rock climber copy pros. [Morris]- pilot had 17 whiskies and C still
consented to flying with D.
Warning notices:
complete defence under 2.3(4) OLA1957 ‘a warning is ineffective unless in all circumstance it was
enough to enable the visitor to be reasonably safe. Is case dependent. [Rae]- deep pit in dark shed
couldn’t be warned against as it wouldn’t have been seen whereas [Westwood]- D want liable as
there was a sign saying auth personnel only.
