ABSTRACT
Defences Although as we have seen in several cases, there is a complex inter-relationship between duty of care, breach, and the defences of volenti and contributory negligence, a separate analysis needs to be made of these defences. They are ‘contentions with which a defendant repels a prima facie case which would otherwise attach liability’.1 Broadly, any argument that there is an absence of a duty of care is a ‘defence’ to a claim. One possibility is that the claimant is the ‘author of his own misfortune’, and therefore ‘causation’ has not been demonstrated. Authority for this general principle is actually said by Clerk & Lindsell to be rather ‘scanty’ because it ‘shades off into the topics of contributory negligence and remoteness’.2 However, in Vellino v Chief Constable of Greater Manchester3 the Court of Appeal in 2002 had to deal with a very unusual situation, where the claimant had a string of convictions for burglary, drugs and motoring offences, and who was about to be arrested for failing once again to turn up to court. When police came to arrest Carlo Vellino at his second floor flat he was in the habit of jumping out of his window. On this occasion he suffered severe brain damage and tetraplegia, and sued the police, claiming that they were ‘under a duty not negligently to let him escape’.4 Elias J at first instance held there was an entire absence of duty of care in these particular circumstances, and the majority of the Court of Appeal agreed. However, even if primary liability had been established, on the basis that officers ‘stood by and let him do it when it was plain that he might injure himself’, then Sedley LJ in the minority would have reduced damages by two-thirds for contributory negligence.5 It can therefore be seen that, even once liability has been established – by the breach of a duty of care which caused damage to the victim – it will still be possible to plead specifically that these defences of volenti or contributory negligence will wholly or partially exonerate the perpetrator of injury. In the modern era it has to be said that courts tend generally to lean towards the use of contributory negligence, perhaps for ‘policy’ reasons; for example, Goddard LJ in Bowater v Rowley Regis Corporation in 1944 indicated that volenti would be applied only with ‘extreme caution’ in an employee case, where there would be some compulsion to obey orders and where the risks might not be fully known to the worker.6 As the next year the proportionality defence of contributory negligence became available,
1 Clerk & Lindsell on Torts para 1-133. 2 Op cit para 1-135. 3 [2002] 3 All ER 78. 4 At 82.
