Defences — common mistakes

In a problem question, always analyse the three elements of volenti separately. Did the claimant know the specific risk? Was their acceptance truly voluntary? For example, an employee who continues to work in dangerous conditions may not be truly 'volenti' if they have little choice.

When discussing contributory negligence, remember to cite the Law Reform (Contributory Negligence) Act 1945. Also, distinguish between the claimant's action causing the accident versus their action making their injuries worse (like in Froom v Butcher).

When faced with a problem question involving illegality, do not just state the defence exists. Apply the three-stage 'Patel v Mirza' test. Analyse the purpose of the law broken, consider wider policy issues, and argue whether denying the claim is a proportionate response to the claimant's illegal act.

No, they are distinct. 'Volenti' is a complete defence based on the claimant's consent to the risk of injury; it requires a subjective assessment of whether the claimant voluntarily agreed. If successful, the claim is defeated entirely. Contributory negligence is a partial defence based on the claimant's carelessness for their own safety. It is assessed objectively and, if successful, only reduces the amount of damages the claimant receives.

Generally, no. The courts are reluctant to allow the defence of 'volenti' against rescuers. The principle from Haynes v Harwood (1935) is that a rescuer acting under a moral, social, or legal duty to intervene is not considered to be acting with free and voluntary choice. Their action is seen as a foreseeable consequence of the defendant's negligence, not a true acceptance of the risk.

Not automatically. The defence of statutory authority only applies if the harm caused is an inevitable consequence of the authorised activity. If the defendant could have performed the activity without causing the harm, or was otherwise negligent in carrying out their statutory powers, the defence will fail. As established in Geddis v Proprietors of Bann Reservoir, the statute provides authority for the act, not for performing it negligently.