Negligence and its Defenses

The case study discusses the concept of negligence and its defenses, particularly volenti non fit injuria. The key issue is whether Michelle can be held liable for negligence and asked to pay damages to Rebecca, or if there was a presence of volenti non fit injuria that would nullify her claims. The study highlights the importance of establishing duty of care, proximity, reasonable foreseeability, and contravention of duty of care, using the English case of Donoghue v Stevenson as an example. It also discusses the defense of volenti non fit injuria, citing cases such as ICI Ltd v Shatwell and Insurance Commissioner v Joyce. The study concludes that Rebecca's claim against Michelle would fail due to the success of volenti non fit injuria, meaning Michelle would not have to compensate her for negligence.

Commercial Law
Negligence and its defenses
(Student Details: )
13-Sep-17

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Issue
The case study highlights the case of negligence and the possible defence of volenti non fit
injuria. The key issue of this case is to find if Michelle can be held liable for negligence and can
be asked to pay damages to Rebecca, or whether there was a presence of volenti non fit injuria,
which would nullify her claims?
Rule
Negligence can be defined in the simplest forms as such a breach of the obligation of care owed
by one person to some other person. This has to include the harm, loss or injury to the person to
which the duty of care was owed due to the actions undertaken by the individual who owed a
duty to care to such injured or harmed party (Greene, 2013). In order to make a case of
negligence before a court of law, the plaintiff is required to show that there had been a duty of
care owed to him, which had been violated, which caused harm/ loss/ injury, and was not only
foreseeable in a reasonable manner but was also not too remote, in addition to the presence of
proximity between the parties and a direct causation between the breached duty and the injury/
harm/ loss of the plaintiff (Statsky, 2011).
For establishing duty of care, proximity, reasonable foreseeability and contravention of duty of
care, the English case of Donoghue v Stevenson [1932] UKHL 100 proves to be of help. In this
case, Donoghue drank the ginger beer from the bottle which was manufactured by the defendant
of this case, Stevenson. As a dead snail was present inside this bottle, the drink was
contaminated and upon drinking the same, Donoghue fell sick and sued for compensation under
tort of negligence committed by Stevenson. However, Stevenson denied owing a duty to

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Donoghue (Lunney and Oliphant, 2013). The court held otherwise and stated that a duty of care
was owed by Stevenson due to the proximity of relationship between a consumer and the
manufacturer of the product. Further, this risk of harm was reasonably foreseeable due to the fact
that a contaminated bottle was bound to make the consumer sick. As the manufacturer failed to
ensure the safety of thee ginger beer, he contravened his obligation of care and was asked to
compensate Donoghue for her losses (Latimer, 2012).
Whenever a case of negligence is made, a common defence which is cited is that of volenti non
fit injuria. As per this concept, the plaintiff of the case, i.e., the person who has been injured as a
result of the negligence of other knowingly takes the risk even when they are clearly aware of the
fact that the risk of harm/ injury/ loss was present. When this defence is present, the claim of
negligence is not upheld (Turner, 2013).
In the case of ICI Ltd v Shatwell [1965] AC 656, the brother had been injured due to the
explosion of the quarry of the defendant which was a result of the negligence of the brother. A
worker had gone to get more wire yet they did not wait for him and tested with a shorter wire.
When the explosion occurred, they made a claim against the defendant on the basis of concept of
vicarious liability of the employer for negligence and also for violating the statutory duty to the
other brother. However, the defendant raised the defence under volenti non fit injuria and
presented that they had clear knowledge of risk and that they had acted against the express
instructions given to them. The court upheld this defence and quashed the claims of the brothers
(E-Law Resources, 2017).
When it comes to such cases where driving under the influence of alcohol is involved, and where
an accident is caused as a result of it, it is clear that such accidents occur due to the diminished

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ability of the driver. And this often gives rise to claims of negligence. However, the passengers
also owe certain responsibility in such cases and where they wilfully accept ride from a drunk
driver, their claim can be quashed due to the defence of volenti non fit injuria (Navin, 2016). An
example of such occurrence is the case of Insurance Commissioner v Joyce [1948] HCA 17;
(1948) 77 CLR 39. In this case, the passenger had clear knowledge that the driver was under the
influence of alcohol and had been inebriated as a result of drinking. And still, the passenger took
the ride from the plaintiff voluntarily, without any pressure. Hence, the High Court ruled in
favour of the defendant and stated that negligence cannot be claimed by the plaintiff as they
voluntarily assumed the risk of harm (Jade, 2017).
Application
The facts of this case study reveal that Michelle was under the influence of alcohol and Rebecca
clearly knew this as they had consumed the wine at the concert together. Rebecca can make a
claim of negligence against Michelle for driving under influence of alcohol on the basis of
Donoghue v Stevenson and claim that a duty of care was owed by Michelle as driving under
alcohol influence is bound to cause an accident and is reasonably foreseeable. Further, the driver
and passenger do have proximity of relationship and Rebecca was also injured.
However, the chances of this claim being deemed as a success are less. This is due to the fact
that Michelle can opt for the defence of volenti non fit injuria. Applying ICI Ltd v Shatwell,
Rebecca had voluntarily assumed the risk so her claim of negligence against Michelle would be
cancelled. Applying Insurance Commissioner v Joyce, this point is strengthened as she had
voluntarily assumed the ride from Michelle. Even though she raised her voice later on, but that

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was only when Michelle drove riskily, but till then, she had already assumed the risk. Hence, her
claim of negligence against Michelle is not likely to be upheld.
Conclusion
Due to the success of volenti non fit injuria, Rebecca’s claim against Michelle would fail and
Michelle would not have to compensate her for negligence.

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References
E-Law Resources. (2017) Imperial Chemical Industries Ltd v Shatwell [1965] AC 656 House of
Lords. [Online] E-Law Resources. Available from: http://www.e-lawresources.co.uk/Imperial-
Chemical-Industries-Ltd-v-Shatwell.php [Accessed on: 13/09/17]
Greene, B. (2013) Course Notes: Tort Law. Oxon: Routledge.
Jade. (2017) Insurance Commissioner v Joyce. [Online] Jade. Available from:
https://jade.io/article/64545 [Accessed on: 13/09/17]
Latimer, P. (2012) Australian Business Law 2012. 31st ed. Sydney, NSW: CCH Australia
Limited.
Lunney, M., and Oliphant, K. (2013) Tort Law: Text and Materials. 5th ed. Oxford: Oxford
University Press.
Navin, M. (2016) Values and Vaccine Refusal: Hard Questions in Ethics, Epistemology, and
Health Care. Oxon: Routledge.
Statsky, W.P. (2011) Essentials of Torts. 3rd ed. New York: Cengage Learning.
Turner, C. (2013) Unlocking Torts. 3rd ed. Oxon: Routledge.