7 - Remoteness, Defences and Remedies Flashcards
What is the role of defences in a negligence claim, and how do they apply to other torts?
Even if a claimant proves all elements of negligence (duty of care, breach of duty, and causation), the claim may still fail if the defendant successfully raises a defence.
General defences in negligence can either eliminate or reduce a defendant’s liability for compensating a claimant’s losses.
These defences are termed “general defences” as they may also apply to torts other than negligence.
What must a defendant prove for the defence of consent (volenti non fit injuria) to succeed in a negligence claim?
The defence of consent operates as a complete defence, preventing the claimant from recovering damages for the defendant’s breach of duty.
The defendant must establish two key elements:
1. Full knowledge: The claimant had full knowledge of the nature and extent of the risk. It is not enough for the claimant to merely know that the risk exists. This is a subjective test.
2. Willing consent: The claimant willingly consented to accept the risk of being injured due to the defendant’s negligence.
Each of these elements is crucial for the defence to succeed.
Example: in Dann v Hamilton [1939], the claimant knew the driver was drunk but chose to ride with him. The court held that mere knowledge of the risk was not enough to imply consent.
However, in Morris v Murray [1990], the claimant willingly assisted a drunk pilot in preparing a flight, which demonstrated that he had accepted the extreme risk of the pilot’s negligence. This illustrates the need for both knowledge and voluntary acceptance.
What level of knowledge must a claimant have for the defence of consent to succeed in a negligence claim?
The claimant must have had full knowledge of both the nature and the extent of the risk they are alleged to have assumed.
It is not sufficient for the claimant to simply know that a risk exists; they must understand the specific nature and degree of the risk.
What is required beyond knowledge for a claimant to consent to a risk under the defence of voluntary assumption of risk?
For the defence to succeed, it is not enough that the claimant knew of the risk.
The defendant must prove that the claimant freely consented to run the risk of injury.
The courts have emphasised that knowledge is not consent (referred to as “sciens is not volens”), meaning that simply knowing about the risk does not imply that the claimant agreed to accept it.
How does section 149 of the Road Traffic Act 1988 affect the defence of consent in motor vehicle cases?
Section 149 of the Road Traffic Act 1988 applies to any motor vehicle where insurance for passengers is compulsory.
The effect of this statutory provision is that any acceptance of risk by a passenger is invalid.
Therefore, the defence of consent (volenti non fit injuria) cannot be relied upon in motor vehicle cases where insurance is mandatory.
Outside of motor vehicle cases, the defence of consent can still be raised, as illustrated by Dann v Hamilton, which shows the high threshold required for the defence to succeed in non-vehicular claims.
Why is it difficult to successfully establish the defence of consent (volenti) in practice?
The stringent requirements make it difficult in practice for a defendant to establish the defence of consent.
This is evidenced by the rarity of cases that satisfy the conditions for a successful defence.
Two specific scenarios where this difficulty is highlighted are:
1. Employees: Employees often have no real freedom to choose whether to accept the risk of injury due to the nature of their employment.
2. Rescuers: Rescuers are often seen as acting under moral or social compulsion, meaning they do not freely consent to the risks they face.
Why does the defence of consent rarely succeed in claims by employees against their employers?
Employees usually do not have real freedom of choice when carrying out dangerous tasks requested by their employers.
The employee is often under a duty and faces economic or other pressures, such as the fear of losing their job, which prevents them from refusing dangerous tasks.
Policy considerations further support this view, as it would be unjust to argue that the employee ran the risk of injury freely.
Example: In Smith v Baker [1891], an employee was injured by a heavy crane’s load, but the court ruled that just because the claimant continued working despite knowing the risks, it did not mean he had consented to the risk in law.
How does the defence of consent apply to rescuers, and why does it usually fail?
Rescuers, whether professional or lay, are often seen as acting under moral compulsion when rescuing others from danger.
The defence of consent will not succeed if the rescuer:
1. Was acting to rescue persons or property endangered by the defendant’s negligence.
Was acting under a compelling legal, social, or moral duty.
2. Their conduct was reasonable and a natural and probable consequence of the defendant’s negligence.
Example: In Haynes v Harwood [1935], a police constable was injured while stopping runaway horses in a busy street. The court held that he acted under compulsion, not voluntary consent to the risk, and the defence of volenti could not apply.
Why do courts prefer to apply contributory negligence over the defence of consent in negligence claims?
The courts prefer to reduce the damages awarded to a careless claimant under the principle of contributory negligence, which is seen as fairer than completely denying the claimant any remedy.
This approach allows for a more balanced outcome in cases where the claimant has suffered harm due to the defendant’s negligence but may have been partially at fault themselves.
What are the key elements required to establish contributory negligence, and how does the Law Reform (Contributory Negligence) Act 1945 affect the reduction of damages?
Contributory negligence requires two elements:
1. Carelessness on the claimant’s part; and
2. That carelessness has contributed to the claimant’s damage.
The Law Reform (Contributory Negligence) Act 1945 provides that a claim will not be defeated by the claimant’s fault. However, the damages will be reduced in proportion to the claimant’s responsibility for the damage.
Section 1(1) of the Act states that: The damages are reduced to such extent as the court thinks just and equitable having regard to the claimant’s share in responsibility for the damage.
In assessing this, courts consider:
1. Culpability (relative blameworthiness of the parties);
2. Causation (the extent to which the claimant’s carelessness has caused or contributed towards the loss suffered).
Example: In Reeves v Metropolitan Police Commissioner, the deceased was found 50% responsible for his death, reducing recoverable damages by 50%.
How is the issue of causation considered by the courts?
In considering the issue of causation, the claimant needs to have contributed to the loss
which they have suffered. The claimant does not need to have contributed to the accident
itself. The relevant issue is not who caused the accident, but who caused the damage. So, the
partial defence of contributory negligence could still apply even where a defendant is solely
responsible for the accident in which the claimant was injured.
E.g., A road accident in which the claimant is injured because they are not wearing a seatbelt. The claimant may have been driving perfectly
carefully and have done nothing to cause the accident to happen, so that the accident is
caused entirely by the negligence of the defendant. Nevertheless, if the claimant’s failure to
wear a seatbelt contributes to their injuries, their damages will be reduced.
How does contributory negligence apply in the context of road traffic accidents, particularly when the claimant contributes to their own injuries?
Contributory negligence can apply where the claimant’s actions contribute to their injuries, even if the defendant caused the accident.
Example: If the claimant fails to wear a seatbelt, despite the accident being the defendant’s fault, their damages may be reduced.
In Froom v Butcher, the court established reductions based on the claimant’s failure to wear a seatbelt:
- 25% reduction if injuries would have been avoided with a seatbelt;
- 15% reduction if injuries would have been less severe;
- 0% reduction if the seatbelt would not have made a difference.
How does the principle of contributory negligence apply to motorcyclists not wearing a crash helmet?
Motorcyclists who suffer head injuries due to not wearing a crash helmet will have their damages reduced for contributory negligence.
The Court of Appeal in Capps v Miller adopted the same tariff for crash helmets as in Froom v Butcher for seatbelts, requiring the defendant to prove a causal link between the failure to wear a helmet and the claimant’s injuries.
How does contributory negligence apply to passengers injured while accepting a lift from a driver they know is intoxicated?
A passenger who knowingly accepts a lift from a drunk driver can have their damages reduced for contributory negligence if injured.
This applies even if the passengers were too drunk to fully appreciate the driver’s intoxication, as in Owens v Brimmell, where self-induced intoxication is no excuse for failing to take reasonable care.
What is the test for determining whether a claimant has been contributorily negligent, and how does it vary depending on the claimant’s circumstances?
The test for contributory negligence asks whether the claimant has failed to take reasonable care for their own safety, measured against the behaviour of a reasonable person in the same circumstances.
Factors influencing this test:
For children, the standard is whether an ordinary child of the claimant’s age would have taken more care, as in Gough v Thorne.
Where a third party has contributed to the negligence, the client can seek a contribution from them under the Civil Liability (Contribution) Act 1978. E.g., if a parent should have been looking after their child. However, in this situation the child is not ‘identified’ by the negligence of their parent. In other words, the child’s damages cannot be reduced on account of the negliigence of its parents.
For employees, the court considers factors like the nature of the work (e.g., noisy, repetitive environments), as noted in Caswell v Powell Duffryn.
For rescuers, they are judged by the standard of a reasonable rescuer, and contributory negligence will only be found if they show a “wholly unreasonable disregard” for their own safety, as established in Baker v TE Hopkins & Son Ltd.
How does the court determine contributory negligence in cases where the claimant is placed in a dangerous situation due to the defendant’s negligence and acts to save themselves?
In dilemma cases, a claimant is not contributory negligent if their actions are a reasonable response to a perilous situation caused by the defendant.
Example: In Jones v Boyce, the claimant jumped off a coach in danger and was found not to be contributory negligent, as his actions were deemed reasonable in the “agony of the moment.”
However, in Sayers v Harlow UDC, the claimant’s method of escape from a locked lavatory was considered unreasonable, and her damages were reduced by 25%.
What is the defence of illegality (ex turpi causa non oritur actio) in tort law?
The defence of illegality, also known as “ex turpi causa non oritur actio” (no action arises from a disgraceful cause), prevents a claimant from recovering damages if they were involved in an illegal enterprise at the time of injury.
It operates as a complete defence, meaning the defendant will not be liable at all if the claimant’s injuries are sufficiently connected to the illegal activity.
Example: Karl and Ben are burgling a house. Karl negligently blows the lock off a safe, injuring Ben. Karl can raise the defence of illegality, preventing Ben from recovering damages.
The leading authority, Pitts v Hunt, demonstrates that for this defence to apply:
- There must be a very close connection between the illegal activity and the injury suffered.
- The damage must arise directly from the illegal activity in such a way that allowing a remedy would be against public policy.
Example: Adriana parks illegally in a restricted zone, but her car is later damaged by Janet’s careless driving. Janet cannot claim illegality as a defence because Adriana’s traffic offence is not sufficiently connected to the damage.
What is the two part test for determining illegality?
Step 1:
Has the claimant committed an illegal (or possibly grossly immoral) act at the time they suffered their loss caused by the defendant?
For example, in Ashton v Turner [1981] QB 137 (where the defence was successful) the parties were escaping from a burglary when the claimant was injured by the defendant’s negligent driving.
Step 2:
Apply the test in Patel v Mirza [2016] UKSC 42 taking into account earlier decisions which turn on similar facts: ‘whether allowing recovery for something which was illegal would produce inconsistency and disharmony in the law, so cause damage to the integrity of the legal system’.
In order to determine this question, the court identified the following ‘trio of necessary conditions’:
a) The underlying purpose of the prohibition which has been transgressed and whether that purpose will be enhanced by denial of the claim;
b) Other relevant public policy which may be rendered ineffective or less effective by denial of the claim; and
c) Whether denying the claim would be a proportionate response to the illegality - In relation to (c), the assessment of proportionality, the court identified a list of non-exhaustive factors: the seriousness of the conduct, its centrality to the tort (whether there is a causal link between the illegality and the tort), whether it was intentional and whether there was a marked disparity in the parties’ respective culpability.
These three considerations should be applied to the facts to determine whether or not the defence should be allowed to proceed.
How does excluding liability work in tort law?
A person may attempt to exclude or limit their liability to another in tort, for instance, by way of a notice such as “No liability is accepted for any loss or damage…”.
The success of an attempt to exclude liability depends on various factors and is particularly relevant to specific areas of law, including pure economic loss.
Provide a summary of the defences of consent, illegality, and contributory negligence.
If all the elements of negligence – duty of care, breach of duty, and causation of damage – are made out, the last argument open to a lawyer acting for a defendant is to seek to establish that a defence applies.
The defences of consent and illegality are complete defences – this means that if the defendant succeeds in establishing them, then they will avoid paying any amount in compensation to the claimant.
Consent:
For the defence of consent to succeed, a defendant must establish: that the claimant
had full knowledge of the nature and extent of the risk; and that the claimant willingly consented to accept the risk of being injured due to the defendant’s negligence.
Illegality:
For the defence of illegality to succeed, a defendant must establish: that there is a very
close connection between the illegal activity of the claimant and the injury which they suffer, so that the damage arises directly out of the illegal activity in such a way that it would be contrary to public policy to allow the claimant a remedy.
Contributory Negligence:
The defence of contributory negligence is a partial defence. This means that where is
a finding of contributory negligence, the claimant’s damages are reduced. The court
will first calculate the full amount of damages which would have been payable had it
not been for the claimant’s contributory negligence. Then it will make an appropriate
reduction to take the contributory negligence into account.
For the defence of contributory negligence to succeed, the defendant must establish: carelessness on the claimant’s part; and that carelessness has contributed to the claimant’s damage.
There is contributory negligence where the claimant’s injuries have been caused partly
by the negligence of the defendant and partly by the claimant’s own carelessness. It is
necessary to consider whether the claimant failed to take reasonable care for their own
safety and whether this contributed to the damage the claimant suffered. It is important to
remember that only the claimant can be contributorily negligent.
What is the purpose of remedies in a tort claim?
The purpose of remedies in a tort claim is to provide compensation to the claimant if they are successful in their claim.
A lawyer’s primary concern is to establish liability by proving each element of the claim, but the client’s main concern is the remedy they hope to obtain.
Remedies can include compensation for various types of harm, such as:
- Damage to property, e.g. a car damaged in a motor accident:
- Cost of repairs or replacement.
- Cost of lost use, e.g. hire of an alternative car.
Personal injury, e.g. a broken leg caused in a tripping accident:
- Compensation for pain and suffering.
- Compensation for activities the claimant can no longer do, e.g. playing football.
- Medical expenses, e.g. prescription charges.
- Lost wages while unable to work.
What are compensatory damages in tort law, and what is their aim?
Compensatory damages in tort law aim to put the claimant in the same position they would have been in if the tort had not been committed.
It is often straightforward to comply with this principle for certain losses, as many can be quantified in monetary terms.
For example, the claimant can use the compensation to:
- Repair a car.
- Replace a bicycle.
- Restore lost earnings.
However, with personal injuries, money cannot restore the claimant to their previous position. For example:
- Money cannot mend a broken arm or prevent someone from suffering post-traumatic stress disorder.
- In these cases, damages are seen as compensation for the injury itself.
