- Mark Lunney, Mark LunneyProfessor of Law, University of New England in New South Wales
- Donal NolanDonal NolanProfessor of Private Law. Francis Reynolds and Clarendon Fellow and Tutor at Worcester College, University of Oxford
- andKen OliphantKen OliphantDirector of the Institute for European Tort Law, Austrian Academy of Sciences, Vienna
- https://doi.org/10.1093/he/9780198745525.003.0006
- Published in print: 14 September 2017
- Published online: October 2017
Abstract
This chapter examines the following defences to a claim in negligence: volenti non fit injuria; contributory negligence; exclusion of liability; and illegality. The defence of volenti non fit injuria reflects the common sense notion that ‘[o]ne who has invited or assented to an act being done towards him cannot, when he suffers from it, complain of it as a wrong’. Contributory negligence is a partial defence that operates not to defeat the claimant's claim entirely but rather to reduce the amount of damages the defendant must pay. A defendant may seek to exclude all potential liability to another person in advance of exposing himself to the risk of a possible claim. The defence of illegality denies recovery to certain claimants on the grounds that their claim is tainted by their own illegal conduct.
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