Even if the claimant establishes duty, breach, causation, and damage, the defendant may still avoid or reduce liability by raising a defence. The four main defences you need to know are: volenti non fit injuria (consent), contributory negligence, illegality (ex turpi causa), and exclusion of liability. Each works differently — some wipe out the claim entirely, others just reduce the damages.
Defences questions often ask you to advise a defendant. Work through the scenario and ask: did the claimant consent? Did they contribute to their own harm? Were they engaged in illegal activity? Was liability excluded? Always explain why a defence does or does not apply — don't just state the conclusion.
Volenti non fit injuria translates as "to a willing person, no injury is done." It is a complete defence — if it succeeds, the claimant recovers nothing. The idea is that you cannot complain about harm you freely and knowingly accepted. It is not the same as contributory negligence, which only reduces damages.
Just knowing about a risk does not mean you consented to it. In Titchener v British Railways Board [1983], a railway worker knew about the risks of working on the tracks but had no real choice about doing the job. The court held that knowledge of risk is not the same as voluntary acceptance of it. You need both.
A railway worker was struck by a train while inspecting the line. He knew the risks of his job — that was part of his working life. But the court held that merely knowing about a risk is not the same as consenting to it. He had not agreed to be injured. His employer had breached their duty by failing to provide adequate warning systems, and volenti did not apply.
Two scaffolders were told to work on a scaffold without safety rails. They knew it was dangerous but did it anyway because they needed the work. The court held that an employer's breach of duty cannot make volenti available. Economic pressure meant their "consent" was not truly free. If the employer creates or ignores the danger, they cannot rely on the employee's reluctant acceptance.
A labourer working near a crane that dropped stones was held not to have consented to the risk. The House of Lords drew an important distinction: doing the job is not the same as consenting to unnecessary risks created by the employer. The claimant accepted the ordinary risks of his employment, but not risks arising from the defendant's negligence.
Volenti almost never succeeds against an employee. The key reasoning is that an employer who creates a dangerous situation cannot then argue the employee consented to it. If you see an SQE1 question about a workplace accident, volenti is almost certainly the wrong answer — think contributory negligence instead.
When you take part in sport, you consent to the normal risks inherent in that activity. In Wooldridge v Sumner [1963], a showjumper was injured by a horse ridden by a competitor who lost control. The court held that participants accept the ordinary risks of the sport, including moments of carelessness or incompetence from other participants. But this does not extend to reckless or deliberate conduct outside the scope of the game.
In medical cases, the concept of consent overlaps with volenti but operates differently. Under Montgomery v Lanarkshire Health Board [2015], doctors must ensure patients are aware of any material risks of treatment. A patient who gives informed consent to a procedure cannot later sue for risks they were properly warned about. This is not strictly volenti — it is about the doctor's duty to disclose, not the patient's assumption of risk.
Children cannot give volenti. In Gough v Thorne [1966], a seven-year-old child ran into the road and was hit by a lorry. The defendant argued the child had consented to the risk by running out. The court rejected this — a young child lacks the capacity to understand and accept risks. The standard of care expected of children is adjusted for their age, so they cannot be said to have freely and knowingly accepted danger.
Never apply volenti to a child claimant. The defence requires free and informed consent, which children — especially young children — are incapable of giving. If the child's own carelessness contributed to the injury, the correct analysis is contributory negligence, assessed against the standard of a child of similar age and intelligence.
| Case | Facts | Held |
|---|---|---|
| Titchener v BRB [1983] | Railway worker hit by train; knew the risks of the job | Knowledge of risk is not the same as consent to it. Volenti failed. |
| Rootes v Skerrett [1968] | Scaffolders worked without safety rails under economic pressure | Employer's breach cannot create volenti. Economic pressure means consent is not free. |
| Smith v Baker [1891] | Labourer worked near a crane that dropped stones | Doing the job is not consent to unnecessary risks from employer's negligence. |
| Wooldridge v Sumner [1963] | Showjumper injured by another competitor's horse | Participants consent to normal risks of sport, but not reckless conduct. |
| Gough v Thorne [1966] | Child ran into road and was hit by a lorry | Children cannot give volenti — they lack capacity to accept risk. |
Contributory negligence is a partial defence — it does not wipe out the claim but reduces the damages by a percentage the court considers just and equitable. It applies where the claimant's own lack of reasonable care for their own safety contributed to the harm they suffered. The governing statute is the Law Reform (Contributory Negligence) Act 1945.
Section 1(1) provides that where a person suffers damage as the result partly of their own fault and partly of the fault of another person, the damages are reduced to such extent as the court thinks just and equitable having regard to the claimant's share of responsibility. "Fault" means negligence, breach of statutory duty, or any other act or omission that would give rise to a defence of contributory negligence.
The key distinction: volenti is a complete defence (100% reduction), contributory negligence is a partial defence (percentage reduction). Volenti requires free and informed consent to the specific risk. Contributory negligence only requires the claimant to have failed to take reasonable care for their own safety. In practice, contributory negligence is far more commonly pleaded and succeeds more often.
This is the leading case on contributory negligence for failure to wear a seatbelt. The Court of Appeal set out guidelines that are still applied today. The court held that the reduction depends on whether wearing a seatbelt would have prevented or reduced the injuries.
The claimant and his friend had been drinking heavily together. They then got into the defendant's car, with the defendant driving while drunk. The claimant was injured in a crash. The court held the claimant was contributorily negligent — he knew the driver was drunk, got into the car voluntarily, and accepted the risk. His damages were reduced by 20%.
A cyclist who was not wearing a helmet was injured in a collision caused entirely by the defendant driver. The defendant argued contributory negligence. The court held there was no reduction because the claimant's failure to wear a helmet did not cause or contribute to the injuries he actually suffered. Causation is crucial — even if failing to wear a helmet was foolish, it must be shown that it made the injury worse.
Contributory negligence only reduces damages if the claimant's carelessness actually contributed to the harm suffered. If the injuries would have been the same regardless of the claimant's conduct, there is no reduction. Eagles v Chambers is a great example — no helmet, but no reduction because the helmet would not have changed the outcome.
An employee was injured by a machine that the employer had failed to guard properly. The employer argued contributory negligence because the employee had operated the machine knowing the guard was missing. The court held that the employer's breach of duty does not prevent a finding of contributory negligence. The employee's damages were reduced by 25% — he knew the machine was dangerous and chose to use it anyway without reporting the missing guard.
Children can be found contributorily negligent, but the court assesses their conduct against the standard of a child of similar age and intelligence, not against an adult standard. In Gough v Thorne [1966], the court held that a young child cannot be expected to have the same awareness of danger as an adult. The older and more mature the child, the more likely a finding of contributory negligence becomes.
Always check causation before applying contributory negligence. The claimant's carelessness must have materially contributed to the damage. If the defendant would have caused exactly the same injury regardless of what the claimant did, contributory negligence cannot reduce the award. This was the decisive point in Eagles v Chambers.
| Case | Facts | Reduction | Reasoning |
|---|---|---|---|
| Froom v Butcher [1976] | Car crash; claimant not wearing seatbelt | 25% or 15% (guidelines) | Injuries would have been prevented (25%) or reduced (15%) by seatbelt. |
| Owens v Brimmell [1977] | Drunk passenger in car driven by drunk driver | 20% | Knew driver was drunk, got in voluntarily, accepted the risk. |
| Eagles v Chambers [2003] | Cyclist without helmet injured by negligent driver | 0% | No evidence that a helmet would have prevented or reduced the injuries. |
| Jayes v IMI [1985] | Employee used unguarded machine knowing guard was missing | 25% | Employer's breach does not prevent contributory negligence finding. |
| Gough v Thorne [1966] | Child ran into road and was hit by a lorry | Varies by age | Children assessed against standard of child of similar age and intelligence. |
Ex turpi causa non oritur actio means "from a dishonourable cause an action does not arise." It is a defence that prevents a claimant from recovering damages if their claim is founded on their own illegal conduct. The rationale is that the courts should not assist someone who has been engaged in wrongdoing. This is a powerful defence but its scope has been significantly narrowed in recent years.
The Supreme Court in Patel v Mirza [2016] rejected the rigid "reliance test" (which barred any claim where the claimant had to rely on their own illegality to prove the claim). Instead, the court adopted a flexible, factors-based approach. The court considers a range of factors to determine whether, on public policy grounds, the claim should be barred.
Patel paid Mirza for inside information to bet on a football match. The information turned out to be wrong, and the match was likely fixed. Patel sued to recover his money. The Court of Appeal had barred the claim under the illegality defence. The Supreme Court reversed this, holding that the correct approach is to weigh up all the factors. On the facts, the claim was allowed to proceed — the purpose of the prohibition on match-fixing was not to protect people like Patel from losing their bets.
When you see an illegality defence in an SQE1 question, work through the Patel factors. Ask yourself: what was the illegal act? How closely is it connected to the claim? What policy is the law trying to promote? Would allowing the claim really undermine the legal system? The answer is often no — the defence is narrower than students think.
Two women lived together and bought a house in the name of only one, to allow the other to claim benefits fraudulently. When the relationship broke down, the beneficial owner sued to establish her interest in the property. The House of Lords held that the claimant was not required to rely on the illegality to prove her claim — she could establish her interest through the resulting trust, not through the fraudulent scheme. The illegality defence did not bar her claim.
The Supreme Court confirmed that there is no automatic bar to a claim based on illegality. Each case turns on its own facts and the application of the Patel v Mirza factors. The court must weigh the public policy considerations and decide whether it would be contrary to public policy to allow the claim to proceed. This reinforces the flexible, case-by-case approach established in Patel v Mirza.
Since Patel v Mirza, the illegality defence is not automatic. The court weighs multiple factors to decide whether public policy requires the claim to be barred. Do not assume that any illegal conduct by the claimant means the defence succeeds. The connection between the illegality and the claim is critical — the more remote the connection, the less likely the defence is to succeed.
| Case | Facts | Held |
|---|---|---|
| Patel v Mirza [2016] | Claimant paid for insider betting tips; match was fixed | Illegality defence rejected. Flexible factors-based approach adopted. |
| Tinsley v Milligan [1994] | Property held in one name for fraudulent benefit claims | Claimant did not need to rely on illegality. Defence failed. |
| Les Laboratoires Servier v Apotex [2019] | Commercial dispute with potential illegality element | No automatic bar. Each case turns on its own facts and Patel factors. |
Parties often try to exclude or limit their liability through contractual terms or notices. The law controls how far they can go, particularly in negligence. You need to know the key statutory provisions that restrict exclusion of liability for negligence and for occupiers' liability.
Section 2 of UCTA is the key provision restricting exclusion of liability for negligence. It draws a crucial distinction between personal injury and other loss.
You cannot contract out of liability for death or personal injury caused by negligence. Period. No matter what the contract says, no matter what the notice states, s.2(1) of UCTA makes any such exclusion void. This is the single most important rule on exclusion clauses for SQE1 purposes.
The common duty of care owed to visitors under the Occupiers' Liability Act 1957 can be modified by agreement, but the occupier cannot exclude their duty by contract or notice in relation to visitors. Section 2(1) establishes the duty, and it cannot be contracted out of in a way that would undermine the protection the Act provides. Any term that attempts to restrict the duty to a lower standard must satisfy the reasonableness requirement.
Under the Occupiers' Liability Act 1984, the duty owed to non-visitors (trespassers and others) cannot be excluded by notice. Section 13 specifically provides that any disclaimer or notice purporting to exclude or restrict the duty under the Act is void. This means a landowner cannot simply put up a "trespassers will be prosecuted" or "enter at your own risk" sign and avoid their statutory duty of care to non-visitors.
A warning notice is not the same as excluding liability. Under OLA 1957 s.2(4)(a), a warning of danger may be enough to discharge the duty in some cases, but it does not exclude the duty itself. Similarly, under OLA 1984, a notice cannot exclude the duty. In an SQE1 question, carefully distinguish between giving a warning (which may discharge the duty) and excluding liability (which may be void).
| Provision | What It Restricts | Effect |
|---|---|---|
| UCTA s.2(1) | Exclusion of liability for death or personal injury from negligence | Absolutely void — no exceptions. |
| UCTA s.2(2) | Exclusion of liability for other loss or damage from negligence | Subject to reasonableness test under s.11 and Schedule 2. |
| OLA 1957 s.2(1) | Duty of care owed to visitors | Cannot be excluded by contract or notice; any restriction must satisfy reasonableness. |
| OLA 1984 s.13 | Duty of care owed to non-visitors | Cannot be excluded by any notice or disclaimer — such notices are void. |