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Detailed Practice Notes written by our Professional Support Lawyers, guiding you through the key issues in each topic.
Liability defences - overviewWas the claimant negligent?
The Law Reform (Contributory Negligence) Act 1945 allows the court to apportion liability between the parties and to reduce the claimant's damages if it finds that the claimant 'suffers damage as a result partly of their own fault and partly of the fault of another person'. It is up to the defendant to prove that the claimant was at 'fault' and that they have contributed to their own injuries although there is no requirement that the claimant owes the defendant a duty of care. The defendant must prove that:
the claimant failed to take proper care of their own safety, and
this lack of care was a contributory cause towards their injuries
The court adopts a fairly subjective test when assessing whether the claimant was contributorily negligent. It will not only consider whether the claimant acted reasonably in taking the risk but will also take into consideration whether it is 'just and equitable' in the circumstances to reduce the claimant's damages. This is a very open test which will depend on the circumstances of the case. The task of the court is to apportion relative responsibility rather than degrees of carelessness. While the court will take into account the claimant's age and experience when assessing the amount of any deduction for contributory negligence, as a general rule the court will expect the same standard of care of the claimant when taking care of their own safety as the standard of care in negligence.
The court cannot make a finding of a 100% deduction for contributory negligence.
In situations where there are multiple defendants with potential apportionment issues the court will first assess the extent of the claimant's contributory negligence before making an assessment of any apportionment between the respective defendants.
Did the claimant consent to the risk of the injury?
In certain circumstances the court can make a finding that the claimant consented to take the risk which resulted in their accident. A finding of this type is often referred to as 'volenti non fit injuria' ('to a willing person, no injury is done') and, in contrast to contributory negligence, can result in the claimant's whole claim being defeated. For a finding of 'volenti' to be made the defendant must prove that the claimant was completely aware of the risks to which they were exposed - the court will not make a finding of 'volenti' simply because the claimant was aware that a risk existed.
Under the Road Traffic Act 1988 a defence of 'volenti' cannot be advanced against passengers who accept a lift from drivers under the influence of alcohol and suffer injuries as a result of a subsequent accident.
It is unlikely that a claimant who has consented to a risk while attempting to rescue a third party will have their claim defeated by the 'volenti' defence.
A defence of 'volenti' may prove successful if advanced in cases where a claimant sustains injuries after undertaking a dangerous sport (as long as the injuries were sustained in the normal and reasonable conduct of the sport).
Was the claimant involved in an illegal activity?
Where the claimant has sustained injuries while committing a criminal act any claim for personal injuries caused by a breach of a duty of care may be defeated in its entirety by the defence of illegality, known as 'ex turpi causa non oritur actio' ('from a dishonourable cause, an action does not arise'). For this defence to succeed the defendant must show that the resultant injury was caused by the criminal act and that there is a link between the criminal act and the alleged tortious act of the defendant.
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