Tort Law Lecture 10

Contributory negligence a partial defense, there is still some liability

on the defendant, but there may be liability on the plaintiff as well.
Pitts v Hunt no one can be 100percent contributory negligent to his
claim. It may appear as a trick to deceive you in a way to determine
someone being 100percent negligent (for the exam)
Requirements for finding someone contributory negligent
1) The onus of the proof is on the Defendant, unless there is a
cross-plaintiff
2) The standard of proof that the other person failed to take
precautions to secure his or her safety, also that the other
person has contributed to the damage suffered
Butcher case man involved in a car accident, got a chest injury, and
didnt wear a seatbelt. Man was liable for contributory negligence
Condon v Condon 1978 Before the mandatory laws of wearing a
seatbelt. Not contributory negligent
Badger v Ministry of Defense 2006 asbestos worker who had
suffered from Cancer. The man was a smoker, he smoked a lot, the
court ruled that smoking was a contribution to his bad state of health
only after smoking became known to cause serious health issues
relating to cancer.
Acceptance of risk When you accept to do something that is
evidently wrong or could cause some form of risk there can be
contributory negligence
Owens v Brimmel 1977 Bar hopping case
Jones v Quaries guy was fooling around on the back of a tractor case
Hatchet v Oliver Blaise the red Indian case child goes over to the
garage and asked for petrol. The kid wanted to play red Indian, the kid
sustained injuries.
Gaff v Rowe 1966 little girl who tried to cross the road, driver gave
her the go ahead and another driver hit her. The girl was not found to
be contributory negligent in this case.

Caswell case 1940 conveyer belt case there must be a clear

violation of safety rules on behalf of the employee in order for there to
be contributory negligence.
Jones case overturned wagon case the man jumped off, he chose
the alternative danger which was not irrational or unreasonable = not
contributory negligence
Volenti non fit injuria He who volunteers cannot suffer damages
Requirements:
1) Voluntary
2) Agreement
Metal ship v Weston a friend trying to teach her friend how to drive
because of the negligence of the driver, the passenger fractures his
knee the insurance company tried to bring forward volenti non fit
injuria it was proven during the claim that the claimant had gone
through the insurance booklet to ensure that he was covered if there
were to be an accident. This created a caveat whereby his volenti non
fir injuria was dependent on him being covered by insurance.
Smith v Charles Bacon & Sons 1981 employee was holding a spike
while 2 other employees were banging on the spike. There were rocks
flying over his head while he was doing this, he complained that it was
unsafe. At one point a rock fell on his head, the employer said that the
employee volunteered.
ICI vs shatwell 1955 explosive case sued the employer did not
win the case because he could not be bothered to take the necessary
safety precautions
Maurice v Murray 1991 plane case the claimant helped an
obviously drunken pilot get into a small aeroplane, which crashed as it
attempted to take off. This was a classic case for volenti to apply. The
court held that the claimant must have known the condition of the pilot
and voluntarily took the risk of negligence by agreeing to be a
passenger.
Baker v Hopkins 1959 the Ds used a dangerous system of work by
lowering a diesel engine into a well, but because of the fumes acouple
of employees became distressed. A passerby jumped in to help, he
died the estate sued the workers for negligence. The workers used
the defense of Volenti the courts said that rescuers are the
exception to the rule.
Cutler v United Dairies Limited plaintiff suffered damages because
he tried to calm a horse, he could not claim the exception of being a

rescuer because there was no one around to be rescued. He was

volenti
Illegality Defense You cannot put forth a claim that stems from an
illegal act

MIDTERM:
NO PASSING OFF
Deceit,
Defenses,
Trespass to the person
Vicarious Liability
Format:
A few tricks concerning the distinction between the different defenses
Determining which is which
Express yourself thoroughly
4 essay questions choose 1 2 sub questions, not always related to
each other
3 problem questions involve multiple legal issues choose 1 of 3
Trespass to the person intentional torts