Defences and remedies in negligence ? Contributory negligence - Volenti non fit injuria ? Illegality ? Necessity 1. Contributory negligence: If it is available, the defense completely bars plaintiffs from any recovery if they contribute to their own injury through their own negligence. 2. Volenti non fit injuria: If someone willingly places themselves in a position where harm might result, knowing that some degree of harm might result, they are not able to bring a claim against the other party in tort. Volenti applies only to the risk which reasonable person would consider them as having assumed by their actions; thus a boxer consents to being hit, and to the injuries that might be expected from being hit, but does not consent to (for example) his opponent striking him with an iron bar, or punching him outside the usual terms of boxing. 3. Illegality: It means that a person cannot rely on their illegal act or conduct to found an action against another person. 4. Necessity: It gives the state or an individual a privilege to take or use the property of another. A defendant typically invokes the defense of necessity only against the intentional torts of trespass to chattels, trespass to land, or conversion. Contributory negligence ? Historically Con. Neg - a 'complete' defenceff - Law Reform (Contributory Negligence) Act 1945 - Damages now apportioned according to the level to which the court finds the Claimant has contributed to the harm. ? Both Parties must be at fault: Pitts v Hunt [1991] Pitts v Hunt ? Ex turpi causa and public policy did operate to preclude the imposition of a duty of care. The trial judge was wrong in principle in finding that the Claimant was 100% contributory negligence since the wording of the Act precluded such a finding. S.148(3) of the Road Traffic Act did preclude the application of the defence of volenti non fit injuria. - Both parties must be at fault for a contributory negligence - Nowadays the court will sum up an amount that equates to the contributory negligence of the claimant Jackson v Murray (2015) ? 13-year-old girl seriously injured when she stepped out from behind a school bus into path of car. Driver had failed to slow down from 50mph even though it was a school bus and the light was fading. Initially court determined that the girl was 90% to blame. On appeal this was reduced to 70% - this court recognised that it was not possible to be precise. Lady Hale in the Supreme Court then said that the question to be addressed was whether the court below had gone wrong. It was held that they had - a car can do far more damage than a child. As such the driver was held to be equally blameworthy (though Lady Hale did suggest that this might be too generous to the driver) 1 Liability works out 50-50 Seen to be a controversial case as more blame was put on the girl