In a negligence claim there are a number of defences the Defendant can rely on in order to defeat the claim.


A Defendant’s consent will be made out if the Claimant had full knowledge of the nature and extent of a risk and the Claimant willingly consented to accept the risk of being injured due to the Defendant’s negligence.

In order for the defence to succeed the Claimant must have full knowledge of both the nature and the extent of the risk and made a properly informed decision to adopt the risk.

Two cases consider the assumption of risk in detail. In Dan v Hamilton 1939 a Claimant rode in a motorcar despite knowing that the driver of the car was drunk. She was injured in a crash in which the driver of the car was killed. The Court held that while the Claimant knew the driver had been drinking the full extent of his drunkenness was not known to her, so it was not sufficient to say that an assumption of risk had been implied.

In Morris and Murray 1993 ER 801 the Claimant had been drinking for some hours with the deceased when they both decided to go for a ride in the Defendant’s aircraft. The plane crashed. Here the Court of Appeal held that the Claimant’s claim was barred by the defence because the Claimant must have realised how drunk the pilot was and therefore implicitly waived his right to damages.

There is a specific provision of the Road Traffic Act under Section 149 which applies to any injury involving motor vehicles. The effect of this Section is to effectively disapply the defence of consent in the context of road traffic accidents. This is presumably because so many people travel by car every day.

The defence will also not normally succeed in cases involving employers and employees. For example in the case of Smith of Baker (1891) AC325 the Claimant was injured when a heavy crane lifting stones overhead dropped its load on him. The Court held that just because the Claimant had continued to work knowing the risks involved it did not mean he consented in law to the risk.

Similarly with respect to rescuers the Court takes the view that rescuers often act under a moral compulsion meaning that they will not be able to consent to the risk of injury if they were:

  1. Acting to rescue persons or properly endangered persons or property endangered by the Defendant’s negligence.
  1. They were acting under compelling legal or social moral duty.
  1. Their conduct in all the circumstances was reasonable and a natural and probable consequence of the Defendant’s negligence.

Contributory negligence

The defence of contributory negligence effectively comprises the following elements: carelessness on behalf of the Claimant and the fact that that carelessness is contributed to the Claimant’s damage. The law related to the effects of contributory negligence being claimed in the law reform Contributory Negligence Act 1945. Section 1 of the 1945 Act provides that:

(1) Where any person suffers damage as the result partly of his own fault and partly of the fault of any other person or persons, a claim in respect of that damage shall not be defeated by reason of the fault of the person suffering the damage, but the damages recoverable in respect thereof shall be reduced to such extent as the court thinks just and equitable having regard to the claimant’s share in the responsibility for the damage:

Provided that—

(a) this subsection shall not operate to defeat any defence arising under a contract;

(b) where any contract or enactment providing for the limitation of liability is applicable to the claim, the amount of damages recoverable by the claimant by virtue of this subsection shall not exceed the maximum limit so applicable.

This effectively allows for the Claimant’s damages to be reduced where there is a finding of contributory negligence the Court will calculate the full amount of the damages which would have been payable and then take account of the contributory negligence in reducing that sum. An example of how this operates can be seen in reason Metropolitan Police Commissioner (1999) 3 897. There are a number of cases which demonstrate how contributory negligence operates. These cases give examples of how contributory negligence can be found in particular circumstances. For example in the case of Frome and Butcher (1975) 3 520 the Court of Appeal handed down a scale of reductions to be made when a Claimant fails to wear a seatbelt in the context of a road traffic accident. There are cases which deal with contributory negligence involving the failure to wear a crash helmet where drivers have been drunk. The fundamental test will be whether the Claimant has failed to take reasonable care for their own safety.  The Defendant’s behaviour is measured against that of a reasonable person.

It is usually said there is no age below which as a matter of law a child cannot be contributorily negligent however the older the child the more likely the Court is to make a finding of contributory negligence. This is showing in the case of Gough v Thorn (1956) 3 398.


If the Claimant was doing something illegal at the time they were injured, this may provide the Defendant with a defence. The leading authority in the case of Pits v Hunt 1993 344. Here the Claimant was a passenger on a motorbike which was involved in a collision. The rider was killed and the Claimant was injured. Both the Claimant and the rider had been drinking prior to the accident. The Claimant knew that the rider had no licence and was uninsured and the Claimant is encouraging to drive in a reckless manner. The Claimant’s case failed as the action by the Claimant arose as a result of illegal actions. The reckless driving which was the cause of the Claimant’s injuries was an inherent part of their criminal enterprise.

In order for the defence of illegality to succeed there must be a very close relationship between the illegal activity of the Claimant and the injuries they suffer so that the damage arises directly out of the illegal activity in such a way that would be contrary to public policy to allow the Claimant to a remedy.

There are some scenarios in which a Claimant can exclude his or her liability to another in Tort These exclusions have rules of their own which we will consider later.

So for the purposes of the SQE you need to be able to advise clients on the provisions relating to each of these defences. Before the elements of negligence are made out then a defence is the last port of call for a lawyer acting for a Defendant. Consent and illegality are complete defences meaning that if they succeed in establishing them there will not be any need to pay anything to the Claimant. For a defence to consent to succeed they must establish that the Claimant had full knowledge of the nature and extent of the risk and that the Claimant willingly consented to accept the risk of being injured due to the Defendant’s negligence. For the Defendant’s illegality to succeed a Defendant must establish that there is a very close connection between the illegal activity of the Claimant and the injury which they suffered.

The defence of contributory negligence for a partial offence means that where there is a finding of contributory negligence the Claimant’s damages are reduced. The Defendant must establish carelessness on the Claimant’s part and that the carelessness has contributed to the Claimant’s damage. Contributory negligence will be found where the Claimant’s injuries have been caused by the negligence of the Defendant and partly by the Claimant’s own carelessness. It is necessary to consider whether the Claimant failed to take reasonable care for their own safety.