5. General Negligence: DEFENCES Flashcards
DEFENCES
A tort MUST be established for a defence to apply.
The following are GENERAL DEFENCES. Specific defences can also apply to certain torts.
The three GENERAL DEFENCES are:
- VOLENTI NO FIT INJURIA (consent)
- CONTRIBUTORY NEGLIGENCE OF THE CLAIMANT (Law Reform (Contributory Negligence) Act 1945).
- EX TURPI CAUSA NON ORITUR ACTIO (illegality)
D: VOLENTI NON FIT INJURIA (Consent)
This is a COMPLETE defence.
C CANNOT bring a claim in tort if:
- WILLINGLY placed themselves in a position where harm may result, AND
- KNOWS that some degree of harm may result
There are THREE REQ. for it to apply:
- AGREEMENT
- KNOWLEDGE
- VOLUNTARY CONSENT
D: Consent - AGREEMENT
For there to be agreement, C must have agreed to the risk. Agreement can occur expressly or implicitly.
- However, agreement will not be implied UNLESS the risk is so extreme that it equates to ‘meddling with an unexploded bomb’ (Dann v Hamilton).
- C’s drunkenness will not automatically vitiate his agreement (Sacco v CC of South Wales)
EGs: Getting onto an aircraft with a drunken pilot (Morris v Murray)
- Jumping into a swimming pool without checking its depth (Ratcliff v McConnell).
D: Consent - KNOWLEDGE
C must have fully APPRECIATED the risk’s NATURE and EXTENT (Morris v Murray).
D: Consent - VOLUNTARY CONSENT
C must have VOLUNTARILY consented to the risk.
- for it to be voluntary, C must be in a position to choose freely (Bowater v Rowley Regis Corporation). C must have had:
- – Full Knowledge of circumstances
- – not felt contained in any way
- – possessed mental capacity to consent (Kirkham v CC of Greater Manchester)
- Consent may be EXPRESS or IMPLIED (Hall v Brooklands Auto Racing).
SPECIAL SITUATIONS
- Employment
- – Risks undertaken at employer’s request are typically considered involuntary (Smith v Charles Baker & Sons) UNLESS employee takes an unauthorised risk with full knowledge of what they are doing (ICI v Shatwell).
- Rescuers
- – Where rescuer harmed in process of saving someone from IMMINENT HARM, D not able to rely on defence of consent if rescuer acting under a moral, legal or social duty (Haynes v Harwood)
- – Volenti will only apply if rescuer intervenes in a non-emergency situation (Cutler v United Dairies).
- – A rescuer will only be deemed to consent to a risk in rare situations where they act with a ‘wanton disregard’ for their own safety (Baker v T.E. Hopkins & Son)
- Suicide
- – Volenti will not operate as a defence for those who have a duty of care to prevent suicide occurring (Reeves v Metropolitan Police Commissioner).
- STATUTORY LIMITATIONS
- s.149 Raod Traffic Act 1988
- – Volenti will NOT act as a defence to a drunk driver giving another person a lift even if that person freely consented.
- s.2 UCTA 1977
- In the course of business individuals may not:
- – exclude or restrict liability for death or personal injury resulting from negligence (s.2(1); Johnstone v Bloomsbury AHA) AND
- – can ONLY exclude or restrict liability for any other loss caused by negligence in so far as it is R to do so (s.2(2)).
D: CONTRIBUTORY NEGLIGENCE
Is a PARTIAL defence.
Where damage is suffered partly through C’s own actions, damages are reduced to an extent that the court deems to be ‘just and equitable’. (s.1(1) LR(CN)A 1945)
- ‘Fault’ defined as ‘negligence, breach of statutory duty or other act/omission that gives rise to liability in tort (s.4).
- Applies to PURE eco loss and physical injury (Platform Home Loan v Oyston Shipways; Cavendish Funding v Henry Spencer and Sons)
TWO REQ:
- C must have acted NEGLIGENTLY, AND
- C’s actions must have CONTRIBUTED TO THE DAMAGE.
D: Contributory Negligence - C acted NEGLIGENTLY
C deemed to “contribute” to negligence if fails to act R.
- Whether they have acted R is judged OBJ and according to the circumstances (Jones v Boyce cf. Sayers v Harlow UDC)
- Age taken into account if C is a child (Gough v Thorne; Yachuk v Oliver Blais)
Irrelevant whether C has broken the law or not (Froom v Butcher)
Generally, rescuers are immune from contrib Neg UNLESS they are partly responsible for creating the emergency situation in the first place (Harrison v BRB).
D: Contributory Negligence - C’s actions CONTRIBUTED TO THE DAMAGE
C’s fault must contribute to the injury itself, not simply the accident (Froom v Butcher)
- EGs: not wearing a seatbelt (Froom v Butcher), not wearing a helmet (O’Connell v Jackson) or failing to wear a helmet properly (Capps v Miller), jumping on the back of an excavator (Jones v Livox Quarries)
D: Contributory Negligence - APPORTIONMENT
The extent to which C’s damages should be reduced.
If req. are satisfied, court will apportion the damages. Will be reflected in % terms. % of C’s responsibility will be deducted from total damages.
C will be awarded fewer damages if contributed to both the accident AND the injury (Froom v Butcher)
C’s suicide will constitute contrib neg where D was under a duty to prevent it (Reeves v Commissioner of Police of the Metropolis)
D: ILLEGALITY
Is a COMPLETE defence
Where a claim arises in connection with C’s own illegal act, C will not be able to pursue that claim.
— EG: if C sustained damages whilst escaping custody, could not claim for injuries sustained in their doing so (Vellino v CC of Greater Manchester).
There must be a NEXUS between the illegal action and the tort (National Coal Board v England; Gray v Thames Trains).
Whilst generally applicable to criminals (Ashton v Turner), a C’s involvement in illegal activities bringing about their injury will not AUTO void their claim.
Claim will not succeed where illegality is joint.
A Tpasser engaged in illegal activity will not be prevented from claiming damages.
OTHER DEFENCES
SELF-DEFENCE
- D may use R force to protect themself, others or property (s.3 CLA 1967; Lane v Holloway)
- – EG: D shooting a dog threatening their sheep was justified even though it did not actually attack the sheep (Cresswell v Sirl)
MISTAKE OF FACT OR LAW
- ignorance of the law is NO defence UNLESS D has R grounds for their mistake as to the facts of the following circumstances
- – malicious prosecution
- – false imprisonment
- – unintentional defamation
INEVITABLE ACCIDENT
- will apply where an accident occurs which:
- – D did not intend, AND
- – any R measures D could have taken would not have prevented the accident.
- —– EG: D firing a shotgun at a tree that resulted in the death of another via ricocheting pellet constituted an inevitable accident (Stanley v Powell)
ACT OF GOD/NATURAL EVENT
- Def: “circumstances which no human foresight can provide against and of which human prudence is not bound to recognise the possibility” (Tennent v Earl of Glasgow)
- Circumstances must be exceptional (Nichols v Marsland cf Greencock v Caledonian Railway)
NECESSITY
- where situation compels D to intentionally act in a certain way, this may be available.
- – only applicable as a defence to intentional damage (Rigby v CC of Northamptonshire)
- Homelessness is not a sufficient justification for Tpass to land (Southwark LBC v Williams)
- Tpass to land to prevent a fire spreading onto one’s own land is justifiable (Cope v Sharpe (No. 2))
STATUTORY AUTHORITY
- ABSOLUTE
- – Complete defence unless D been negligent (Vaughan v Taff Railway)
- CONDITIONAL
- – Complete defence available if D complies with conditions in statute (Metropolitan District v Hill)
- DISCRETIONARY
- – D may claim in operating the functions authorised under a statute (X v Bedfordshire)
DURESS
- D may have a defence where they were physically forced to commit the tort.
