Defences — contributory negligence, volenti, ex turpi

Three defences limit tort recovery where the claimant's own conduct or circumstances render full compensation inappropriate. Contributory negligence reduces damages proportionately where the claimant failed to take reasonable care for her own safety and this failure causally contributed to the damage (Law Reform (Contributory Negligence) Act 1945, s.1(1)). Volenti non fit injuria completely bars recovery where the claimant, with full knowledge of the nature and extent of the risk, voluntarily agreed to accept it and waive legal rights. Ex turpi causa prevents recovery where allowing the claim would affront public policy because it arises from the claimant's illegal conduct. Each defence serves distinct normative goals: contributory negligence promotes shared responsibility through apportionment; volenti respects individual autonomy to assume risks; ex turpi preserves legal coherence by preventing the law from compensating what it simultaneously condemns.

Smith v Baker [1891] AC 325: Knowledge of risk does not equal consent to it—volenti requires evidence of voluntary agreement to waive rights, not mere awareness of danger. Economic necessity negates voluntariness, making the defence unavailable where workers continue in risky employment under financial pressure.

Froom v Butcher [1976] QB 286: Contributory negligence applies where claimant's fault contributes to damage even if not to the accident itself. Established guideline reductions: 25% where seatbelt would have prevented injury entirely, 15% where it would have reduced severity.

Morris v Murray [1991] 2 QB 6: Volenti succeeded where claimant accepted flight with obviously drunk pilot—the extreme and reckless nature of the joint enterprise constituted consent to waive rights. Represents the high-water mark of modern volenti, confined to exceptional facts.

Gray v Thames Trains Ltd [2009] UKHL 33: Ex turpi bars recovery for (i) losses flowing from lawfully imposed criminal sanctions and (ii) consequences of claimant's own criminal act. Attempted to impose structure on illegality defence through bright-line rules.

Patel v Mirza [2016] UKSC 42: Replaced mechanical tests for illegality with flexible evaluation of: (a) purpose of prohibition transgressed; (b) other relevant policies; (c) whether denial is proportionate. Courts must assess whether allowing claim would produce legal incoherence or undermine integrity.

Contributory negligence: Court must find (1) claimant failed to take reasonable care for own safety (objective standard, modified for children) and (2) this causally contributed to damage. Apportionment balances relative blameworthiness and causal potency—highly discretionary but patterns emerge (seatbelts 15-25%, children assessed by age-appropriate standard).

Volenti: Requires proof of (1) full knowledge of nature/extent of risk, (2) voluntary assumption without economic duress, and (3) agreement to waive legal rights. Rarely succeeds outside sport/recreation, extreme joint enterprises (Morris v Murray), and equal-fault scenarios. Barred by s.149 RTA 1988 in motor claims.

Ex turpi: Post-Patel, courts evaluate purpose/policy/proportionality rather than applying mechanical rules. In personal injury, defence typically requires: close causal/temporal link between illegality and injury; serious crime not minor breach; allowing claim would require court to condone illegal conduct. Henderson suggests high threshold where claimant lacks mental capacity.

Conflating contribution to accident with contribution to damage: Froom v Butcher—seatbelt doesn't cause crash but contributes to injuries. Always distinguish what caused the accident from what increased the harm.

Equating knowledge with consent: Smith v Baker—knowing risk exists doesn't mean agreeing to waive rights. Look for evidence of voluntary agreement, consider economic duress.

Overstating ex turpi: Minor illegality (traffic offences, visa breaches) won't bar recovery. Post-Patel requires serious crime closely connected to injury plus policy reasons for denial.

Missing statutory limits: s.149 RTA 1988 bars volenti for passengers; s.2 UCTA 1977 restricts exclusion clauses; 2013 Act confirms contributory negligence in employer liability. These provisions determine outcomes—cite them.