⇒ 1) Contributory negligence → A partial defence

⇒ 2) ‘Volenti non fit injuria’ → willing acceptance of risk (a full defence)

⇒ 3) ‘Ex turpi causa non oritur actio’ → illegality

⇒ Prior to 1945 contributory negligence was a full offence i.e. it used to be the case that the court could find the claimant to be 100% liable for his/her injury

⇒ However, since the Law Reform (Contributory Negligence) Act 1945, you now cannot have 100% contributory negligence

⇒ In short, contributory neglgience is a deliberate contribution by the claimant to his/her injury, such that the defendant should not have 100% liability for the claimant's injuries

⇒ Main questions to be addressed by the courts:

1. Was the claimant acting negligently?
2. Did his or her actions contribute to the damage suffered?
3. To what extent should his or her damages be reduced?

⇒ So first of all you must establish whether the defendant owed a duty of care to the claimant

⇒ Standard of care: “A person is guilty of contributory negligence if he ought reasonably to have foreseen that, if he did not act as a reasonable prudent man, he might hurt himself, and in his reckonings, he must take into account the possibility of others being careless” - Lord Denning in Jones v Livox Quarries [1952]

⇒ So the claimant's actions must have contributed to the damage that they suffered

⇒ See, for example, Stapley v Gypsum Mines Ltd. [1953] and St George v Home Office [2008]

⇒ The final question you must ask is, how much should the damages owed to the claimant be reduced due to the claimant's contributory negligence?

⇒ It states in the Law Reform (Contributory Negligence) Act 1945 that damages should be reduced to the extent that is “just and equitable in the circumstances” i.e. the amount damages are reduced by could be anything

⇒ This CAN be a full defence to for the defendant: if the claimant voluntary assumes risk, if they are subsequently injured then the defendant may escape liability for those injuries

⇒ There are traditionally 3 aspects:

1. There must be agreement to the risk;
2. Full knowledge of the nature and extent of the risk;
3. Voluntary choice by the claimant, i.e. consent must be fr

⇒ The claimant must have agreed to the risk

⇒ See, for example, Nettleship v Western [1984] and Titchener v British Railways Board [1983]

⇒ Not only must the claimant have agree to the risk, but they must also ave full knowledge and acceptance of the nature and extent of the risk

⇒ See, for example, Dann v Hamilton [1939]

⇒ The claimant must give consent to the risk freely

⇒ Smith v Baker & Sons [1891]

⇒ ICI v Shatwell [1965]

⇒ Kirkham v Chief Constable of Greater Manchester [1990]

⇒ National Coal Board v England [1954]: “If two burglars, A and B, agree to open a safe by means of explosives, and A so negligently handles the explosive charge as to injure B, B might find some difficulty in maintaining an action for negligence against A. But if A and B are proceeding to the premises which they intend burglariously to enter, and before they enter them, B picks A's pocket and steals his watch, I cannot prevail on myself to believe that A could not sue in tort (provided he had first prosecuted B for larceny). The theft is totally unconnected with the burglary.” (Lord Asquith at 429)

• In other words, if the tortious act (i.e. negligence) that causes damage happens within the context of an illegal act, then it is against public policy to sue on that

⇒ See, for example, the cases of Ashton v Turner [1981], Pitts v Hunt [1991], Tinsley v Milligan [1994], and Clunis v Camden and Islington Health Authority [1998]