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Hi, does contributory negligence arises as a result of the fault of the claimant or respondent? According to my notes is the respondent’s fault but in the acca practice test the correct answer is the claimant. What about volenti non fit injuria?
Thank you
There are two sides to this issue! Where one party is negligent and the other party is injured as a result of that negligence, then clearly the claimant is the innocent victim and the respondent is the negligent one that is likely going to have to compensate the claimant
But it’s potentially the case that the claimant too is at fault and, as a result of their own actions, the extent of their loss is increased. Thus it can be seen that they have contributed to their loss and are therefore contributorily negligent
As for volenti, where a matter is risky and a party to the activity knows about that risk and voluntarily puts themselves in a situation where they will be injured should that risk matter actually occur, that’s where volenti fits in. To he who is willing there can be no harm
But this defense requires more than just knowledge of the risk. It requires actual voluntary action on behalf of the participant for the defense to be successful. Thus, people that participate in contact sports (rugby is a classic example) know that the risk of injury is greater than if they were to play poker.
But a person who is required by their employer to carry out some action which they know is risky and about which risk they say that they are not happy and the employer says “Don’t be so soft – it will be fine”
That person is not volenti and would likely be successful in any resultant claim against the employer (scienti fit injuria whereas volenti NON fit injuria)
OK?
Thanks. So from your answer I understand it the action of the claimant in both cases. In my notes I have ‘contributory negligence: contribute to you own suffering-it results as the fault of the respondent/defendant/accused party’? But there is also a question in the mock exam that says that it is the action of the plaintiff. Are my notes wrong then?
The claim of ‘contributory negligence’ is made by the original wrong-doer
“yes, your Honour, I was negligent. But the plaintiff made the matters much worse by their own actions! If she had not stood on the toilet roll, and instead just waited until help came along, she would not have slipped and fallen and broken her arm. By her own actions she has contributed to the damage that she suffered. OK! We should have made sure that the lock on the toilet door worked properly. So, yes, we accept that we are negligent. But she added to the damage so she must be seen as a contributor to the damage”
Now then, Laura, put that little scenario into your notes and see if it makes sense
OK?
Yes, it make sense to me. That’s how I always thought it was but my notes confused me. Contributory negligence is claimed by the defendant and it arises as the action of the claimant/plaintiff. I believe is exactly the same for volenti?
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