Tort – Negligence (Defences) Essay, Research Paper

Defences to Negligence

There are certain Defences which have a particular relevance to claims in negligence, one of these is Contributory negligence It operates where the Plaintiff s own fault has contributed to the damage suffered and the damages payable are reduced in proportion to the degree of fault. Before the Law Reform (Contributory Negligence) Act 1945, contributory negligence was a complete defence and no damages were recoverable where the injuries were caused partly by the plaintiff s own fault. Under Section 1 (1) of the Act the court has power to apportion the damage and, where a Plaintiffs own conduct has contributed to the accident or harm to reduce the damages awarded. The second defence is volenti non fit injura, which means no wrong is done to one who consents. This means that a plaintiff who voluntarily agrees to undertake the risk of harm is not permitted to sue for the consequent damages. It is a complete defence and if it succeeds, the plaintiff gets nothing. The third defence is ex turpi causa non oritur actio. This means that no right of action arises from a bad cause, therefore the defendant is not liable for damage in circumstances where the Plaintiff was participating in an unlawful act.



The Plaintiffs carelessness need not be a cause of the accident but it is essential to show that it contributed to the damage suffered.

Here the P was involved in a collision caused by the D’s negligence. He was not wearing a seat belt but if he had been wearing a belt the head and chest Injuries that he sustained in the incident would have been avoided.

It was HELD, that the Standard of Care is Objective In failing to wear a seat belt the P failed to take reasonable precautions for his own safety and his damages were reduced accordingly.

1) The negligence of the Plaintiff did not contribute to the accident happening, but his failure to take precautions increased the risk of harm.

2) In this case the P made a conscious decision not to wear the seat belt because of the risk of becoming trapped in an accident. However in Condon v Condon (1978). A Plaintiff who claimed to suffer from a seat belt phobia was not held to be contributory negligent for failing to do so.


The Plaintiff and the Defendant went on a pub-crawl together and had about 9 pints of beer. On the journey home the defendant crashed into a lamppost.

It was HELD that the Plaintiff was 20% contributory negligent in getting into a car with a driver who he knew was over the limit, it didn’t matter that at the time he was too drunk, to know how drunk the driver really was.

This case shows that accepting a lift from a driver whom the Plaintiff knows has consumed large amounts of alcohol may amount to contributory negligence.


Here the Plaintiff had been told not to ride on the towbar of a traxavator by his employee because it was dangerous. However he did and another person drove into the back of this vehicle injuring him. The plaintiff claimed that contributory negligence should not count against him because the danger of riding on the towbar was being thrown off, not being run into from behind and crushed by another vehicle.

It was HELD that the risk of being run into from behind was one, which he had exposed himself to and the damages were reduced accordingly.

This case shows that the injury sustained must be within the scope of the negligence created by the Plaintiff.

Lord Denning said that the Plaintiffs carelessness would have been irrelevant if instead of being hit by another vehicle, he had been hit in the eye by a shot fired by a negligent sportsman.


The plaintiff was a passenger on the Defendants coach and he thought it was going to turn over therefore jumped off. However the coach did not turn over and if he had stayed on he would not have been injured at all.

It was HELD that he was not contributory negligent because he had acted reasonably in the circumstances.

This case shows that where a defendant’s contributory negligence is created in an emergency, the court is reluctant to find contributory negligence on the part of the plaintiff who makes a wrong decision in the agony of the moment.



The plaintiff was drilling holes in a rock cutting over which a crane was swinging containing stones while he was working. He was aware that there was a risk of the stones falling and he had complained to his employer about the dangerous practice. He was injured and he brought an action against his employers who pleaded volenti non fit injuria.

It was HELD that the employers argument was rejected, even though the plaintiff knew about the danger and continued to work, he had not voluntary undertaken the risk.

The defendant will not be liable if the plaintiff voluntarily assumed to take the risk Involved – but knowledge of the danger does not necessarily imply consent

1) This action will rarely succeed when it is an employer against an employee. However in the case of Imperial Chemical Industries Ltd v Shatwell (1965) the plaintiff in defiance of his employers orders and safety regulations, went to test some detonators without taking the required safety precautions. During the testing an explosion occurred and the Plaintiff was injured, his employer was held to be not liable because the Plaintiff was held to have consented to and fully appreciated the risk of injury.


After heavy drinking session Murray suggested to Morris that they go for a ride in his light aircraft, the aircraft crashed and killed Murray and injuring Morris who brought ht an action against the deceased estate.

It was HELD that the defence succeeded because the pilot s drunkenness was so extreme and obvious that the plaintiff was volens to the risk.

In circumstances where the Plaintiff accepts a lift from an obviously inebriated driver the plea of volenti depends on the degree of intoxication

In Dann v Hamilton (1939) the defendant had driven the plaintiff and her mother to see the coronation decorations. They visited several public houses and it became obvious that the defendant s ability to drive had become impaired, But the plea by the defendant of volenti was rejected and the plaintiff was found not to have consented to or absolved the defendant from subsequent negligence on his part.

Asquith J held that volenti did not apply to this situation. Unless the drunkenness was so extreme and so glaring that accepting a lift was equivalent to “walking on the edge of an unfenced cliff”

(Volenti is excluded by Section 149 of the Road Traffic Act 1988)


This means no right of action arises from a bas cause. Here the defendant is not liable for damages in circumstances where the plaintiff was participating in an unlawful act.


On their way back from a disco, at which they had both consumed large amounts of alcohol, the Plaintiff encouraged the defendant to drive his motorbike in a reckless and dangerous fashion. The Defendant was killed and the plaintiff, who was riding pillion, was badly injured.

It was HELD that the defendant s own criminal and disgraceful conduct gave rise to a successful defence of ex turpi.

The Court of Appeal announced that for the Act to come into operation there must be fault on the part of both parties. A finding that the Plaintiff was lOO% contributory negligent was not allowed on the basis that holding the P entirely at fault would effectively defeat his claim.

Nervous Shock

Claims for nervous shock, which are not the result of a physical injury to the Plaintiff, are dealt with separately from claims for ordinary physical damage. Injury sustained through the negligent infliction of shock is not actionable simply on the grounds that it was foreseeable. Physical damage caused by negligence will be limited to those within the range of the harmful event, but nervous shock may affect a wide range of persons beyond the direct victim of negligent conduct. In Victorian Railway Commissioners v Coultas (1888) it was held that such damage was not

Compensable at all. Initially there was judicial skepticism about the existence of nervous shock as a medical condition and for fear of fraudulent claims. There was also the fear that if such actions were allowed to succeed the ‘flood gates’ would open to allow a rush of claims. Changing judicial attitudes to claims for nervous shock, or psychiatric injury, which is the term now preferred, are reflected in the following cases. In such claims the courts have been reluctant to apply the forseeability principal of negligence and have imposed a number of specific restrictions on the law beyond reasonable forseeability.


Where psychiatric injury is sustained through fear for the Plaintiff s own safety, there is no need for physical impact to establish a claim for, nervous shock.

Here the P, a pregnant woman, was working behind the bar of a public house when the D ran his van and horses through the window. She was not physically injured but was badly frightened and this resulted in the premature birth of her child.

It was HELD that the P was entitled to recover because there was real and immediate fear of injury to her.

1) The recovery of Damages was limited to shock which arises from a reasonable fear of immediate personal injury to oneself

2) A Bystander who witnesses a particular horrific event without fear of personal harm is not owed a duty of care, In McFarlane v EE Caledonia Ltd (1994), the plaintiff suffered shock as a result of witnessing the fire on Piper Alfa drilling platform in which 164 men were killed. His claim failed on the grounds that he was a mere bystander and was not in fear for his own safety, he had no close relationship of love and affection with those in danger, nor was he actively involved in the rescue operations.


The Plaintiff, an Edinburgh fishwife, had just alighted from a tram when she heard an impact from an accident involving a tram and a motorcyclist. This occurred 50 feet away on the other side of the tram and outside her line of vision. She approached the site of the accident and alledged that she suffered nervous shock and gave birth to a stillborn child a month later.

1) It was HELD that because she was so far from the accident and a total stranger to the primary victim, Mrs Bourhill was not a foreseeable plaintiff and was not owed a duty of care.

2) The nature between the primary victim and the Plaintiff suffering the shock was relevant. It was accepted that a parent or spouse of the primary victim was more likely to be effected than a bystander who was a stranger to the primary victim.

3) The ordinary bystander can be expected to withstand the sight and sound of road accidents. The Plaintiff was NOT entitled to succeed, as a pregnant woman she was not normal in terms of what she could endure succeed, as a pregnant woman

3) If a person of ordinary fortitude would have suffered shock in the circumstances, then the particularly susceptible plaintiff can recover.

This case illustrates that Forseeability is relative to the individual affected. It is gauged by the reaction of a person of reasonable fortitude not unduly susceptible to that type of reaction.


In addition to reasonable forseeabilitv the plaintiff must be a close relative of the victim, wittiness the accident or the immediate aftermath with unaided senses and be proximate in both time and space.

Here the D admitted liability for an accident were the P`s young Daughter was killed and her husband and two other children suffered injury. At the time of the accident the P was at home two miles away, she was informed of the accident an hour later and was driven to the hospital where her family had been taken. Upon arrival she was told of the death and saw the injuries to her family in distressing circumstances before medical staff had treated them. The Plaintiff claimed for nervous shock, which she suffered as a result of these events.

It was HELD that the nervous shock had been the reasonably foreseeable result of injuries to her family and the defendants were liable.

1) This represented an extension to the existing law, as the P was not at the scene of the accident.

2) This case left the law in an uncertain state and it was arguable that the test for liability in nervous shock depended on forseeability alone. Although the court unanimously agreed that the plaintiff s shock was readily foreseeable, the reasoning of the Lordships varied. Lord Bridge and Lord Scarman adopted a test based on forseeability alone and considered the question of whether, as a matter of policy, there should be some other limit on the duty of care, inappropriate for the court to decide. Lord Wilberforce, with whom Lord Edmund-Davies agreed, was of the opinion that it was open to the court to decide the issue on grounds of policy. They adopted an aftermath test. Forseeability of shock was not sufficient, additional limits were required: A close relationship with the victim and proximity in terms of time and space. Shock from being told by a third party would not be compensated.


In addition to reasonable forseeabillty of nervous shock the following factors must be considered:

i) The relationship between the primary victim and the P

ii) The proximity of the P in time and space to the scene of the accident

iii) And the means by which the shock has been caused

Here actions for nervous shock were brought against the police arising from the Hillsborough football stadium disaster, 95 people were crushed and killed in the tragedy which was shown in a live television broadcast. Claims were brought by relatives and friends of the victims who suffered psychiatric illness as a result of their experiences. A number of them had been in other parts of the stadium from where they had witnessed the events and others had seen the disaster live on TV. Some of the Plaintiffs had identified bodies at the mortuary and others suffered solely from being told news. The Plaintiffs based their claim on the argument that the sole test for a duty in nervous shock was reasonable Forseeability.

It was HELD that this argument was to be rejected and the plaintiff s actions dismissed. The House of Lords applied Wilberforces aftermath test . In McLoughlin v O’Brien (1992).

1) The class of persons who could sue was not limited to spouse and parent/child relationships; the crucial factor was the existence of a sufficiently close tie of love and affection with the primary victim.

2) Sight or Sound of the accident will continue to satisfy the proximity test but their Lordships did not define immediate aftermath, in this case identifying a body in the mortuary eight hours after the incident was not within the immediate aftermath.

3) The live television broadcast was found not to equate with the sight or hearing of the event or its immediate aftermath because the television authorities had followed the broadcasting code of ethics, Pictures of suffering by recognizable individuals had not been shown. However, the showing of such pictures could constitute a novus actus intervenous and break the chain of causation between the original breach of duty and the psychiatric illness.


The House of Lords held that in claims for nervous shock, It is necessary to distinguish between primary and secondary victims. Where the P is a primary victim, personal injury of some kind must be foreseeable, but it is not necessary to show that injury by shock was foreseeable. Where the plaintiff is a secondary victim the defendant will not be liable unless psychiatric injury is foreseeable in a person of normal fortitude.


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