Defences — SQE1 FLK1 Tort Law

Your client's supervisor tells him to finish boarding a roof from a scaffold with no edge rails. He says the rails are missing. They go up next week, he is told, and the job must be done now. He is on a short-term contract, and everyone there knows who refuses work is not asked back. He goes up, slips at the edge, and breaks his pelvis. Did he consent to that risk? No.

Knowing about a danger is not agreeing to run it. That gap is where this topic lives. This is Defences: what a defendant says when duty, breach, causation and damage are all made out. Some wipe the claim out. Some only cut the damages. Keep your man on the scaffold. We are coming back for him.

Here is the route. Volenti first, the complete defence, and the three things it needs. Then contributory negligence, the partial one, and the percentages the courts actually use. Then illegality, and why it fails more often than students expect. Then exclusion clauses and notices, and the one rule you cannot contract out of. And finally necessity.

Start with the shape of it. Four main defences. Volenti non fit injuria is complete: the claimant consented to the risk and gets nothing. Contributory negligence is partial: the damages come down by a percentage the court thinks just and equitable. Illegality may bar the claim altogether. And exclusion of liability is the attempt to escape by contract or notice, controlled by statute.

The exam approach is mechanical, so use it. Did the claimant consent? Did they contribute to their own harm? Were they engaged in illegal activity? Was liability excluded? And always say why a defence does or does not apply, never just that it does.

Volenti non fit injuria. To a willing person, no injury is done. Succeed with it and the claimant recovers nothing at all. Three requirements, and you need all three. Full knowledge of the nature and extent of the risk. Voluntary acceptance, freely chosen and not forced. And free and informed consent, not consent squeezed out by economic duress or the absence of any real alternative.

Now the rule that decides most volenti questions. Knowledge is not consent. Smith v Baker, 1891. A labourer worked near a crane that dropped stones. He knew about it, and he was injured when one fell. The House of Lords held that knowing about the danger was not agreeing to it. He accepted the ordinary risks of the job, not the risks his employer's negligence added.

Which is your man on the scaffold. He knew the rails were missing. But consent given under an employer's orders, with a job on the line, is not free consent. In one case a carter was ordered to use a horse known to bolt, and when it injured him the court held he had not voluntarily accepted the risk. A right to refuse that costs a man his work is not a real choice.

So take this away. In a workplace accident, volenti is almost always the wrong answer. Reach for contributory negligence instead.

When does it actually succeed? Titchener v British Railways Board, 1983. A fifteen-year-old crossed a railway line through a gap in the fence, a shortcut she knew was dangerous, and was struck by a train. Having freely chosen to run a risk she fully understood, she had accepted it. Volenti applied. And for trespassers the point is statutory: under s 1(6) of the Occupiers' Liability Act 1984, no duty is owed for risks the entrant willingly accepted.

It also succeeds where the danger is glaring. After an afternoon drinking together, a man went up in a small plane with a pilot who was obviously and extremely drunk. Morris v Murray, 1991. The plane crashed shortly after take-off. The danger was so extreme and so obvious that he must be taken to have freely accepted it, and volenti succeeded.

Try one. Same facts, but a car instead of a plane. Volenti, or contributory negligence? Contributory negligence. And s 149 of the Road Traffic Act 1988 bars volenti outright against an injured road passenger. Aviation falls outside that bar. That is why the plane case worked and the car case cannot.

Sport next. Take part and you accept the risks ordinarily incidental to the game, including the errors of judgment and lapses of skill that competition produces. A showjumper was injured by a horse ridden by a competitor who lost control, and that was one of those ordinary risks. What is not accepted is reckless or deliberate conduct outside the scope of the game.

Two groups who cannot consent at all. Children first. A young child lacks the capacity to give free and informed consent, so never apply volenti to a child claimant. If the child's own carelessness contributed, the question is contributory negligence, judged by the standard of a child of that age. And rescuers. Someone who runs in to help people endangered by the defendant's negligence acts under a compelling duty, not free choice.

Contributory negligence now, and it is a different animal. It does not kill the claim. It reduces the damages. The statute is the Law Reform (Contributory Negligence) Act 1945. Under s 1(1), where a person suffers damage partly through their own fault and partly through another's, the damages are reduced. By how much? To such extent as the court thinks just and equitable, having regard to the claimant's share of responsibility.

Three things to hold. The claimant must have failed to take reasonable care for their own safety. That failure must have contributed to the damage. And the defendant carries the burden of proving it.

Now the figures, and these are quick marks. Froom v Butcher, 1976, sets the seatbelt guidelines, and the courts still apply them. If the belt would have prevented the injuries entirely, reduce by 25%. If it would have made them less severe but not prevented them, 15%. If it would have made no difference, no reduction at all.

Try it. A driver goes through a red light and hits your client, who was not belted. The evidence is that a belt would have spared her the concussion, and left her ribs cracked rather than broken. 25%, 15%, or nothing? 15%. Injuries reduced, not prevented.

And here is the step candidates skip. Contributory negligence needs causation. The claimant's carelessness must actually have contributed to the harm suffered. A cyclist wearing no helmet was hit by a driver looking at his phone. Riding without one can be contributory negligence, by analogy with the seatbelt rules. But every injury was to his leg and arms, and a helmet would have changed nothing. So no reduction.

Owens v Brimmell, 1977. Two friends drank together, one of them drove, and the passenger got into the car knowing exactly how much the driver had had. He was injured in the crash. He had failed to take reasonable care for his own safety, and his damages came down by 20%.

Jones v Livox Quarries, 1952. Against clear orders, a workman rode to and from the quarry face standing on the towbar at the back of a slow digger. Another vehicle ran into the back and crushed his legs. Contributorily negligent, and note why. Riding there exposed him to a foreseeable risk of injury of that general kind. He did not have to foresee the precise way it came about.

Children can be contributorily negligent, but never against an adult standard. The question is the care to be expected of an ordinary child of the same age, experience and understanding. The older and more experienced the child, the readier a court is to find a want of care.

One more on this. An employer's own breach, even a breach of statutory duty, does not prevent a finding of contributory negligence against the employee. In one case a worker removed a machine guard, and the reduction was assessed at 100%. That figure has since been doubted, because a claimant cannot logically be wholly responsible for damage another caused.

Illegality. Ex turpi causa non oritur actio. From a dishonourable cause an action does not arise. The idea is that a court should not assist a claimant whose claim is founded on their own wrongdoing. It is a powerful defence, and its scope has been cut back sharply.

The old rule was a reliance test. If you had to rely on your own illegality to prove the claim, you lost. The Supreme Court threw that out in 2016 and put a range of factors in its place.

Five questions. How closely connected is the illegality to what the claimant is suing for? What is the prohibition they broke actually trying to prevent? Would allowing the claim undermine the integrity of the legal system? Would refusing it be proportionate? And would refusing it actually deter wrongdoing of this kind?

Two examples of the defence failing. A woman paid a builder in cash because he would not declare it for tax, and months later the ceiling he built collapsed. She still recovers. The tax laws exist to protect the revenue, and no revenue is protected by leaving her without a remedy for a collapsed ceiling. And a woman who had taken part in a mortgage fraud still sued the solicitors who negligently failed to register the transaction.

When does it succeed? Where the claim arises directly out of a joint criminal enterprise. A pillion passenger egged on a rider he knew was drunk, unlicensed and uninsured; when they crashed his claim was barred. And where the loss flows from a sentence imposed for the claimant's own crime. A man whose stress disorder was caused by a rail crash killed a stranger, and could not recover the losses that flowed from his detention.

Exclusion of liability last, and this is where the single most important rule sits. Under s 2(1) of the Unfair Contract Terms Act 1977, you cannot exclude or restrict liability for death or personal injury resulting from negligence. Not by a contract term. Not by a notice. Not however clearly it is drafted, or however willingly it is signed. The prohibition is absolute.

Other loss is different. Under s 2(2), liability in negligence for property damage or economic loss can be excluded, but only if the term is reasonable. Reasonableness is judged under s 11 and Schedule 2: relative bargaining power, whether the customer knew of the exclusion, whether it was reasonable to expect them to insure. And since the Consumer Rights Act 2015, the 1977 Act governs business contracts and notices, while s 65 of the 2015 Act does the same job for consumers.

One trick to watch. If the exclusion clause is void, can the defendant recycle it as consent? No. Under s 2(3) of the 1977 Act, a person's awareness of, or agreement to, a notice excluding liability for negligence is not of itself a voluntary acceptance of any risk. Awareness of a notice is not volenti.

Occupiers next, briefly, because they have an episode of their own. Start with s 2(1) of the Occupiers' Liability Act 1957. An occupier may extend, restrict, modify or exclude the common duty of care, by agreement or otherwise, so far as they are free to do so. But a business occupier is not free to exclude death or personal injury from negligence. A private occupier is not caught by those statutes, and has more room, subject to giving adequate notice.

And distinguish warning from excluding, because the paper likes that line. Under s 2(4)(a) of the 1957 Act a warning does not absolve the occupier unless in all the circumstances it was enough to enable the visitor to be reasonably safe. A sign at a rotten bridge that is the only way across does not do that.

For non-visitors, s 1(5) of the Occupiers' Liability Act 1984 lets a reasonable warning discharge the duty. Whether that duty can be excluded outright is unsettled. And there is no s 13 of the 1984 Act. That section belongs to the Unfair Contract Terms Act 1977, and it is sometimes wrongly cited for this.

One last defence to have in your pocket. Necessity. It excuses what would otherwise be a trespass, but it is narrow. There must be a real and imminent danger, the response must be reasonable, and the harm done must be proportionate to the harm avoided. It also justifies treating a patient who cannot consent, where the treatment is necessary and in their best interests.

But it does not excuse negligence of your own alongside it. Police who fired a gas canister into a shop could justify the trespass, and were still liable for having no fire-fighting equipment ready when the shop caught alight.

A word on how SQE1 tests this. You will not be asked to recall case names or section numbers. You get a scenario, five answers, and one instruction: pick the best. Learn the rules. The names are memory pegs, nothing more.

If you keep only three. Smith v Baker, because knowledge of a danger is never consent to it. Froom v Butcher, for 25%, 15%, or nothing, the only figures in this topic you have to know cold. And s 2(1) of the Unfair Contract Terms Act 1977: personal injury from negligence cannot be excluded, full stop.

Four traps. One: knowledge is not consent, and the topic is built on that trap. A claimant who knew about a danger and carried on has not thereby consented to it. You need voluntary acceptance as well, and in a workplace you will almost never find it.

Two: contributory negligence needs causation. If the injuries would have been the same whatever the claimant did, there is no reduction. No helmet, but no head injury, means no deduction. Three: never apply volenti to a child, who cannot give free and informed consent. If the child was careless, that is contributory negligence, judged against a child of the same age.

Four: read the notice carefully. A warning may discharge a duty. A disclaimer does not exclude one, and where the harm is personal injury caused by negligence, nothing excludes it. Then a habit for the exam. Take each defence in turn, say whether it applies and why, and say whether it wipes the claim out or only cuts it.

Quick check. A supermarket has a large notice at its entrance: customers enter at their own risk, and the management accepts no liability for any injury sustained on these premises. A cleaner mops an aisle and leaves it wet, with no warning cone, though he was told to use one. A customer walks down the aisle, slips, and fractures her hip. She claims against the supermarket as occupier, which points to the notice at the door.

Three candidate answers. One: it excludes liability, because every customer could read it. Two: it has no effect, because liability for personal injury from negligence cannot be excluded. Three: it has no effect unless the supermarket shows it was a reasonable notice. Pause here if you want a moment.

The answer is two. An occupier may restrict, modify or exclude the common duty of care by agreement or otherwise, so far as it is free to do so. That is s 2(1) of the Occupiers' Liability Act 1957. But a business occupier is not free to exclude personal injury from negligence, by term or by notice.

A fractured hip is personal injury caused by negligence, so the notice cannot touch the claim. Option one fails because how well a notice is displayed is beside the point when the exclusion is one the occupier may not make. Option three fails because the reasonableness test governs other loss, such as damage to property, and never personal injury.

Five things to take away. One: volenti is complete, contributory negligence is partial, and that is the first question to answer about any defence. Two: knowledge of a danger is not consent to it, which is why your man on the scaffold recovers.

Three: the seatbelt figures are 25%, 15%, or nothing, and nothing is right whenever the claimant's carelessness made no difference to the injury. Four: illegality is no longer an automatic bar. The court weighs the connection, the purpose of the prohibition, public policy and proportionality, and the defence fails more often than it succeeds.

Five: liability for death or personal injury from negligence cannot be excluded by any term or notice, ever. Next time, Occupiers' Liability.

Practise this topic with exam-style questions at sqe1prep.co.uk. This episode is for education and exam revision only, not legal advice, and we are not affiliated with or endorsed by the SRA or Kaplan.