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Where a Claimant can demonstrate a duty of care, breach and causation, it may be possible for the Defendant to escape liability by raising a defence. The onus is on the Defendant to prove that a defence applies.
The volenti defence is also called the voluntary assumption of risk defence. The idea is simple: a person who had consented to an act being done towards them cannot then complain that they should be compensated: Smith v Baker [1981] AC 325. If the defence is successfully applied, it is a complete defence and thus alleviates the defendant 100%. The assumption of risk can be express or implied, but mere knowledge of a risk, without actual consent, is not sufficient.
Woodley v Metropolitan District Railway (1877) 2 Ex D 384. The Claimant was a workman in a dark railway tunnel. The workmen would only be aware of a train 30 yards before it came past as there was a bend, and the space where the workmen could stand was large enough but only just. The Claimant was hit by a train and the court held that he had voluntarily assumed the risk of injury. This case is an extreme example of how the doctrine was being applied in the late 1800 (the court equated knowledge of the risk with consent), when the concept of employer duties towards employees was developing extremely slowly.
In 1891, the House of Lords in Smith v Baker stated that the defence did not apply when there was only knowledge of the risk and no consent to it. What is required is some implied or express assent to the risk which usually comes in the form of an agreement, artificial though this may sometimes be. Because this is quite a high standard, the defence is rarely used nowadays.
In Morris v Murray [1991] 2 QB 6 , the Claimant had been drinking with the deceased in a pub for several hours. At the end the deceased suggested they should go for a flight in a small plane as he had a pilot's license. They crashed and the Claimant was hurt. The Claimant sued the estate of the deceased for compensation but they raised the volenti and contributory negligence defences. The Court of Appeal said that had the Claimant been sober when he agreed to go on the flight he would definitely have accepted the risk as he could not have thought that the pilot was capable of flying properly, as such the court would have stated that there was an implicit agreement to accept risk. Given that the Claimant was not that drunk, the court held that he had assented to the risk. The dangers were so obvious that by getting into the plane it is fair to say that the Claimant must have implicitly agreed to accept the risk of injury.
This case leads to the paradoxical conclusion that a completely drunk Claimant is allowed to recover but a slightly drunk Claimant cannot not. Surely, the drunk claimant is at least as much to blame as the sober Claimant. The rationale, however, lies on the basis that the court must infer some implied agreement which it cannot do if the Claimant was so drunk that they were incapable of mentally forming such an agreement. Note that volenti is not available in road traffic cases: s148(3) Road Traffic Act 1972.
Contributory negligence used to be a full defence, it has, however, since the 1945 Law reform (Contributory Negligence) Act been a partial defence. Section 1(1) provides that a judge can reduced damages to the extent they think is "just and equitable having regard to the claimant's share in the responsibility for the damage."
So the question of whether the Claimant contributed is the same as an ordinary negligence claim. The court will ask whether the Claimant "ought reasonably to have foreseen that, if he did not act as a reasonable, prudent man, he might be hurt". If it was reasonably foreseeable that they would get hurt, and there is causation, the court can reduce the damages by an appropriate amount.
As an example, in Adams v Lancashire (1869) 1 LR CP 739 (this case was held at a time when contributory negligence was a complete defence), the Claimant lost their lawsuit against the operator of a train as the court held that he had been contributory negligent. The door of the train kept opening and the Claimant got up to shut it but fell out. The court said that the door was a mere nuisance and that he voluntarily put himself in a situation of danger, thus contributing to his injuries.
The appropriate amount is something to be decided by the court on the facts of the case. Thus it is a well-established principle that where the driver of a car is negligent and the passenger gets injured, the compensation will be reduced by 25% if the passenger was not wearing a seatbelt: Froom v Butcher [1976] QB 286. The court will ask what the damage would have been without the contribution, whether the Claimant had an alternative to the negligence, and any such common sense factors which may be relevant. Note that when assessing responsibility the court do not consider how blameworthy the Claimant was for the negligence of the Defendant, but how blameworthy they are for the resultant injuries. Thus, in Froom, the Claimant was not responsible for the accident of the driver but they were 25% responsible for their own injuries.
How about where someone puts themselves in danger in order to rescue another person? In baker v TE Hopkins (1959) 1 WLR 966, the court said that the actions by a Claimant rescuer must be,
"so foolhardy as to amount to wholly unreasonable disregard for his own safety.Bearing in mind that danger invites rescue, the court should not be astute to accept criticism of the rescuer's conduct from the wrongdoer who created the danger. Moreover, I think it should be remembered that it is fatally easy to be wise after the event".
It is possible to exclude liability by using a disclaimer, whether in a contract or a notice on the wall or orally. A distinction should be drawn between two types of clauses: firstly those which try to exclude liability in the true sense and those which act as volenti clauses. Both are exclusion clauses. For example, a statement like: "we do not accept any loss or damage, howsoever caused, as a result of the faulty bus" would seek to exclude liability for negligence. Whereas a statement like 'you leave property at your own risk' (i.e. in a gym) seeks to exclude liability on a volenti basis. With the latter phrase, the Defendant is not trying to say "we have excluded liability" but rather are saying "you have assumed responsibility".
However, the Unfair Contract terms Act 1977, has imposed restrictions on how far an exclusion can go. Section 2 states,
• "A person cannot by reference to any contract term or to a notice given to persons generally or to a particular person, exclude or restrict his liability for death or personal injury resulting from negligence.
• In the other cases of loss or damage, a person cannot sp exclude or restrict his liability for negligence except insofar as the term or notice satisfies the requirement of reasonableness.
• Where a contract term or notice purports to exclude or restrict liability for negligence, a person's agreement or awareness of it is not in itself to be taken as indicating his voluntary acceptance of risk..."
Subsection 1 is straightforward and doesn't require explanation. Subsection 2 is more complex because of the concept of reasonableness. Reasonableness is to be judged according to all the circumstances which were, or ought reasonably, to have been known or in the contemplation of the parties: s11(1) UCTA. Thus the reasonableness of an exclusion is to be determined on a case by case basis.
Note how subsection (3) follows the common law on the volenti defence: something more than knowledge is required. Thus knowledge of a sign which says 'you leave property at your own risk' is not sufficient in itself. In order to be an effective volenti exclusion there must be an acceptance of risk.
The illegality defence is also called ex turpi non causa oritur action , which means that a claim cannot be founded on an illegal act. The cases which fall under this defence are usually when the Claimant and Defenant are engaged in a criminal act together and one gets hurt. So in Ashton v Turner [1981] QB 137, the Claimant was a passenger in a getaway vehicle after a burglary he had been involved in. The claim against the driver failed because as a matter of public policy, the English law fails to recognise a duty of care in cases involving illegality. However, it is possible to sue where the tort is not connected with the illegal act. Lord Asquith gave this example in national Coal Board v England [1954] AC 403 (paraphrased),
If two burglars agree to blow up a safe but one of them handles the explosives negligently and injures the other, it is very unlikely that a claim would be successful. Whereas if these two burglars were robbing a house and one decided to steal the other's wallet, it is likely that a defence of ex turpi would not be successful as the tort (the theft) is not connected with the illegal activity.
The illegality of an enterprise can also be a problem in respect of setting a standard of care. For example, what is the standard of care of getaway driver to his passenger when being chased by the police after a robbery? The essence of the illegality defence is to ask whether the public conscience would be offended by allowing recovery of damages. It is entirely a public policy defence.
