FLK1 · Tort

Defences (consent, contributory negligence, illegality)

SQE1 revision notes — the key rules, leading cases and common traps for this topic, in plain English and current to 2026.

TOR.09 — Defences: Consent, Contributory Negligence, Illegality

Consent (volenti non fit injuria)

A complete defence. Claimant must have (1) full knowledge of the nature and extent of the risk, and (2) voluntarily agreed to accept it (run the risk and waive the legal claim). Mere knowledge is not consent — Smith v Baker.

Tests/cases: Morris v Murray (drunk pilot — passenger volens). Dann v Hamilton (getting into car with drunk driver = knowledge, not consent).
Rescuers are not volenti — Haynes v Harwood, Baker v Hopkins.
Road traffic: RTA 1988 s.149 bars volenti against a passenger where compulsory insurance applies — a key trap.
Employees: courts reluctant to find true consent (Smith v Baker).
For occupiers, OLA 1957 s.2(5) / OLA 1984 s.1(6) preserve volenti for risks willingly accepted.

Contributory Negligence

A partial defence — reduces damages, does not defeat the claim. Law Reform (Contributory Negligence) Act 1945 s.1(1): damages reduced "to such extent as the court thinks just and equitable" having regard to the claimant's share in responsibility.

Two elements: claimant failed to take reasonable care for own safety, and that fault contributed to the damage (not necessarily to the accident) — Froom v Butcher (seatbelts: 25% / 15% / 0% guideline).
Children: standard is that of an ordinary child of the same age — Gough v Thorne.
Emergency/agony of the moment: judged leniently — Jones v Boyce.
100% reduction is not permitted (Pitts v Hunt) — it would contradict the finding of defendant liability.

Illegality (ex turpi causa non oritur actio)

A complete defence where the claim arises from the claimant's own illegal/immoral act.

Leading test: Patel v Mirza [2016] UKSC — a trio of considerations: (a) the underlying purpose of the prohibition transgressed; (b) other relevant public policy that might be denied by refusing the claim; (c) proportionality of denying the claim against the wrongdoing. This replaced the old rigid "reliance" test.
Applied in tort: Henderson v Dorset Healthcare (UKSC 2020) — barred where claim founded on the claimant's own serious criminal act (manslaughter).

Common traps

Complete vs partial: consent and illegality defeat the claim; contributory negligence only reduces.
Volenti needs agreement, not mere awareness; RTA s.149 defeats it against passengers.
No 100% contributory reduction.
Use the Patel v Mirza trio for illegality — not the abolished reliance test.

Try a real SQE1 question

Straight from the bank. Answer it, then see the worked reasoning and the tutor — no signup to try.

A man is a front-seat passenger in a car driven by a friend. The friend drives negligently and collides with another vehicle. The man was not wearing his seatbelt. Medical evidence establishes that had he worn the seatbelt his injuries would have been substantially less severe, though he would still have suffered some injury from the impact. The man sues his friend in negligence. Liability for the collision is admitted. The defendant argues that the man's damages should be reduced because of his failure to wear a seatbelt.

Before you book a £1,934 exam

Strong on this topic? SQE1 tests 137 of them — and 59% failed in July 2025. See where you stand across all of them, free.

✓An AI tutor on every question that already knows the answer — the part nothing else has
✓5 full mock papers at real exam pace, plus unlimited drilling — no daily cap
✓The whole 2,000+ bank, verified and source-cited to the law, all 137 areas
✓Your weak-spot map: exactly where you’re losing marks

Start my free diagnostic — one tap →

Free. No card. 25 questions, about 15 minutes. Full SQE1 courses run £1,500–£4,000 — this starts at £0.