1. Contributory negligence
This defense is available in circumstances in which the plaintiff is also to blame for the loss or injury. The defendant must adduce evidence to establish the plaintiff’s contribution.
The defendant must prove:-
1. That the plaintiff exposed himself to danger.
2. That the plaintiff was at fault or negligent.
3. That the plaintiff’s fault or negligence contributed to his suffering.
Effect of contribution
It reduces the amount of damages recoverable by the plaintiff by the extent of his contribution.
However, children of tender years are not guilty of contribution.
2. Voluntary assumption of risk (volenti non fit injuria)
This defense is available in circumstances where the plaintiff with full knowledge of the risk voluntarily agrees to undertake the same. The defendant must prove
• That the plaintiff had actual knowledge of nature and extent of the risk
• That the plaintiff agreed to incur the risk voluntarily
In Dann v Hamilton the plaintiff had taken a ride on a vehicle driven by a drunken person and his was aware of this fact and as a consequence an accident occurred. The defendant’s plea of volenti failed since the plaintiff had not consented to incur the risk.
However in Tugwell v Bunnet where the defendant‟s vehicle expressly stated that passengers rode at their own risk and the driver at the material time was drunk to the plaintiff’s knowledge but took a ride in the motor vehicle and was injured, the defendant’s defense of volenti succeeded since the plaintiff appreciated the risk and agreed to incur the same.
3. Statutory authority
If the conduct complained of by the plaintiff is authorized by statute and the defendant has acted in accordance with the provision of the statute the defendant has a complete defense to the plaintiff’s action.
However whether or not the defense is complete depends on the interpretation of the statute.