Defences to Negligence: Contributory Negligence, Volenti and Illegality
Defences questions examine whether liability, once established, should be reduced or extinguished. Each defence operates at a different level, and examiners penalise candidates who run them as if interchangeable.
Contributory negligence
Failure by the claimant to take reasonable care for his own safety that contributes to his own injury. In Ghana the defence is governed by the Civil Liability Act 1961 (Act 176): it is no longer a complete bar, but reduces damages to the extent the court thinks just and equitable having regard to the claimant's share of responsibility. The test is objective, with age and capacity relevant to children; the same risk-balancing factors from breach apply. The negligence must be causally linked to the injury, not merely present: Froom v Butcher produced a 25 per cent reduction for the unbelted claimant, and Stapley v Gypsum Mines shows apportionment is a matter of judgment. Judges sometimes describe reductions in fixed bands (seatbelt, helmet, jaywalking), but no formula binds the court.
Volenti non fit injuria
The claimant knowingly and freely consented to the risk. It requires actual knowledge of the risk and a genuine, voluntary acceptance of it, so mere knowledge is insufficient. Compare:
- ICI v Shatwell: experienced miners who deliberately breached safety rules had accepted the risk as between themselves.
- Dann v Hamilton: a drunken passenger's knowledge of the driver's condition was not consent.
- Morris v Murray: the claimant who chose to fly with a heavily drunk pilot did consent. Rescuers are not usually taken to consent (Haynes v Harwood), and statutory duties cannot be excluded by consent as between employer and employee.
Illegality (ex turpi causa)
The claim is barred where it arises out of the claimant's own criminal conduct. Modern courts ask whether refusing the claim is a proportionate response, considering the purpose of the prohibition and the policy against allowing a criminal to profit from his crime (Patel v Mirza). Pitts v Hunt and Vellino v Chief Constable show the defence succeeding, while Joyce v O'Brien shows it failing for a passenger who was not complicit.
Worked example
A passenger accepts a lift from a driver he knows has been drinking, and is injured. Knowledge alone does not establish volenti (Dann v Hamilton), but his damages are very likely reduced for contributory negligence. Only if the evidence shows he freely accepted the risk of an intoxicated driver - as in Morris v Murray - will the claim fail entirely.
Traps that cost marks
Treating contributory negligence as a complete defence; equating knowledge with consent; pleading illegality whenever the claimant broke a rule; and forgetting that volenti must be proved by the defendant.