Defences

The general standard

• Although contributory negligence does not depend on a duty of care, it does depend on foreseeability. A person is guilty if he ought reasonably to have foreseen that, if he did not act as a reasonable prudent man, he might be hurt himself. (Denning LJ, Jones v Livox Quarries)
• A different degree of care is expected from person to person. A deliberate act on the part of the claimant may amount to contributory negligence. (Caswell v Powell Duffryn)

Other incapacity

• Drunkness - 20% contibutory negligence, C chose to get into the car with the drunk driver. (Owens v Brimmwell)

Conduct in an emergency

• Made the wrong call, no contributory negligence (Jones v Boyce)
• When no time to think, the chances of making the wrong call increases. (The Bywell Castle)

C's negligence must be 'contributory'

• Must be cause in fact or part of the damage suffered by the claimant. C's injury must result from the particular risk in which is negligent

• Even though the claimant didn't foresee the risk, distinction of 2 injuries was too narrow to be drawn. Answer would be different if the claimant had been shot from other source that would be coincidence, no increase of risk. (Jones v Livox Quarries)

Failure to take safety precautions

• Claimant's negligence contributes to the accident. To severity of harm suffered. Claimant will normally lead to a reduction in damages.
• Moped driver failing to wear a helmet (O'Connell v Jackson)
• Failure for a passenger to wear a seatbelt, 25% reduction if passenger is injured. Have to prove that wearing a seatbelt would have made a difference. (Froom v Butcher)
• D failed to prove that the failure aggrevated injuries. Whatever is just and equitable. Courts take account of capability and responsibility. (Owens v Brimmell)

Implied Consent

• Driving instructor didn't impliedly consent to negligence, knowing they wouldn't come to same standard as the reasonable driver. (Nettleship v Weston)
• Claimant entered the yard with a guarddog which ate her - knew the risks of trespassing. (Cummings v Granger)
• Girl trespassed on a railway line and was hit by a train. Claimed negligence for gap in fence. Knowledge of the risk is judged subjectively. (Titchener v British Railways Board)
• The greater the risk, the more likely it is that the defence of consent will apply. The fact that the claimant knew about the risk is not sufficient to imply consent. (Morris v Murray)
• D cannot use consent as a defence if the thing the claimant consented to, was something that the defendant had a duty to prevent. (Reeves v Commissioner of Police)
• Not all illegal acts will give rise to the defence (Pitts v Hunt)

• The driver of a get away car did not ower a duty of care to a fellow burglar who was a passenger in the car (Ashton v Turner)

• There was such a close connection between the abuse of the children entrusted to his care and the job he was employed to do that it was fair and just to hold the employer liable. (Lister v Hesley Hall)
• An employee harassed a colleague. The trust was found vicariously liable for the colleague's distress and anxiety. The employee will incur primary liability for the wrongful act, but without an initial wrong, the employer cannot be held vicariously liable.Majrowski v Guys and St Thomas)