Defences — practice questions

Driver's negligence assumed (breach: drink-driving). Defences:

1. Volenti non fit injuria:

• Did passenger voluntarily accept risk of drunk driving?
• Morris v Murray — passenger in knowingly unsafe flight — volenti found.
• Here: knowing driver drank — strong volenti argument if she fully understood and freely accepted specific risk of drunk driving.
• Smith v Baker — mere awareness of general workplace danger insufficient — need acceptance of particular risk.
• Conclusion: Volenti arguable but fact-sensitive — courts may prefer contributory negligence where C did not truly consent to collision. Note s.149 Road Traffic Act 1988 prevents volenti being used for risks requiring compulsory insurance.

2. Contributory negligence (LRA 1945 s1):

• Accepting lift from drunk driver — C failed to take care for own safety → partial fault.
• No seatbelt — Froom v Butcher guidelines: 25% reduction typical for failure to wear seatbelt where injuries would have been prevented, 15% if reduced.
• Court apportions blame — e.g. driver 70%, passenger 30%; damages reduced by 30%.

3. Ex turpi causa: Unlikely — passenger not engaged in joint illegal enterprise with driver (Pitty — illegal boarding train still allowed claim with contributory negligence).

Outcome: Driver unlikely to escape entirely via volenti; contributory negligence almost certainly reduces passenger's damages. Apply Froom percentages in exam answers.

1. Basis for Contributory Negligence: The defence is available under the Law Reform (Contributory Negligence) Act 1945 where the claimant's own fault contributes to their damage.

2. Identifying Claimant's Fault:

• Fault 1 (Headphones): Chloe failed to take reasonable care for her own safety by wearing headphones, reducing her awareness of traffic. This contributed to the accident occurring. (Jones v Livox Quarries).
• Fault 2 (No Helmet): Chloe failed to take reasonable care by not wearing a helmet. This did not cause the accident but worsened her injuries. This is analogous to the seatbelt principle in Froom v Butcher and applied to cyclists in cases like Smith v Finch.

3. Apportionment and Calculation: The court must make a reduction that is 'just and equitable', considering the 'causative potency' and 'relative blameworthiness' of both parties' actions.

• Assessed Damages: £70,000.
• A court might make a single deduction for both faults. Given David's speeding and Chloe's multiple failures of care, a finding of 25% contributory negligence against Chloe is a reasonable estimate.
• Calculation of Reduction: $Total Damages \times Percentage Fault = Reduction$ $£70,000 \times 25\% = £17,500$

4. Final Award: $Total Damages - Reduction = Final Award$ $£70,000 - £17,500 = £52,500$

Conclusion: David can successfully argue for a significant reduction in damages due to Chloe's contributory negligence. The final award is likely to be around £52,500, representing a 25% reduction from the initial assessment.