C7: Defences

Question 1

What are the two types of defence that can either partly and fully absolve the defendant from liability?

Answer 1

Complete/full defence
Partial defence

Question 2

Give examples of two complete or full defences?

Answer 2

Volenti non fit injuria (consent)
Ex turpi causa non oritur actio (illegality)

Question 3

Give an example of a partial defence?

Answer 3

Contributory negligence

Question 4

What kind of a case must a claimant prove before a defendant has to provide defences?

Answer 4

A prime facie case (on the face of it, the case is obvious)

Question 5

In civil law, what is the standard of proof and what is the burden of proof?

Answer 5

The standard of proof is the balance of probabilities.

The burden of proof will either sit on the claimant’s behalf or the defendant’s behalf.

Question 6

In negligence, what is the standard of proof?

Answer 6

Balance of probabilities

Question 7

In negligence claims, where is the burden of proof and where does it move to?

Answer 7

The burden of proof is on the claimant at the beginning, having to prove a duty of care, a breach of duty and causation of damage. After that has been proven, the burden of proof shifts to the defendant to provide defences.

Question 8

What does volenti non fit injuria mean?

Answer 8

It can be loosely translated as ‘no injury can be done to a willing person’. It applies when it can be shown that the claimant voluntarily consented, with knowledge of the risk.

Question 9

Is volenti non fit injuria a partial or complete defence?

Answer 9

It is a complete defence.

Question 10

What is volenti known as in trespass to the person?

Answer 10

It is known as simply ‘consent’.

Question 11

What is volenti known as in trespass to land?

Answer 11

‘Leave and licence’ (i.e. permission) given expressly or impliedly to a person to enter land or premises.

Question 12

In order to qualify for the volenti non fit injuria defence, which three elements must be shown?

Answer 12

1. Agreement
2. Knowledge
3. Voluntariness

Question 13

Are drunk drivers allowed to use volenti as a defence?

Answer 13

No, the courts moved from originally allowing this defence to now not being prepared to accept ‘consent’ as a defence.

Question 14

Define what is meant as ‘agreement’ in the volenti defence?

Answer 14

The defendant must establish that the claimant consented to the LEGAL risk, i.e. they agreed to participate and have no claim at law.

Question 15

Can volenti be used as a defence against passengers travelling in vehicles without seatbelts?

Answer 15

No, according to s149 Road Traffic Act 1988, the defence of volenti cannot be used against the passengers travelling in vehicles and it is ineffective for the driver to exclude liability by agreement, because legally, the driver must have third-party insurance and it isn’t necessary for the driver to exclude liability and to pass this loss to the insurance companies.

Question 16

When would third party insurance provisions not apply?

Answer 16

“There may be cases in which the drunkenness of the driver at the material time is so extreme and so glaring that to accept a lift from him is like engaging in an intrinsically and obviously dangerous occupation, inter-meddling with an unexploded bomb or walking on the edge of an unfenced cliff.” - Dann v Hamilton [1939]

Question 17

Can volenti be used by an employer?

Answer 17

Volenti can only be used by an employer when they are being vicariously sued for their employee’s breach of statutory duty. See ICI v Shatwell [1965]. However, volenti CANNOT be used if the employer is getting sued for their OWN breach of statutory duty - this is the norm.

Question 18

What types of people would volenti not work as a defence against?

Answer 18

• Employees (have to do something risky, rarely found to consent due to employers making them do the task)
• Passengers in vehicles (s149 Road Traffic Act 1988, cannot be used against)
• Participants and spectators at sporting events (consented only within the rules)

Question 19

Does mere knowledge of the danger establish the volenti defence?

Answer 19

No, the claimant must have consented to a known risk. See Smith v Baker [1891] - he knew about heavy rocks, but still had to come to work, no choice. Then got injured, volenti did not work.

Question 20

What does it mean to voluntarily submit to the risk of injury in volenti?

Answer 20

The claimant must have had a choice to act, for volenti as a defence to apply. A free choice between different courses of action is essential for consent to be a defence.

E.g. Smith v Baker, had to go into work and work under heavy rocks, so the defence would not apply because he had no choice - no defence.

However in ICI v Shatwell, the brother employees deliberately adopt a dangerous practice - defence can apply.

Question 21

Is the defence of volenti available to an employer when sued for their own breach of statutory duty?

Answer 21

No, it is not.

Question 22

How do the courts view rescuers in regard to volenti as a defence? Do they have a choice?

Answer 22

The courts are reluctant to find that a rescuer is acting voluntarily, so the defence is likely not to apply. No choice = no defence. See Haynes v Harwood [1935], policeman injured by horses, but had no choice but to act because bystanders were in danger. This applies to anyone who attempts a rescue with a reasonable chance of success, not just professional (Chadwick v British Railways Board [1967] - anxiety caused by helping crashed train victims for hours)

However, if noone is in any real danger, volenti can apply (Cutler v United Dairies [1933] - calming horses in a field that didn’t pose anyone any real risk)

Question 23

Note the details of two cases where the courts have been prepared to accept the defence of consent.

Answer 23

Morris v Murray [1990] the claimant agreed to be flown in the defendant’s light aeroplane, piloted by the defendant. Both men had been drinking heavily. The defendant crashed the plane, killing himself and injuring the claimant. The defence of volenti was successfully pleaded by the defendant’s estate.

ICI v Shatwell [1965]. Two brothers working for ICI as shotfirers jointly agreed to disobey their employer’s orders and statutory regulations. They tested detonators without taking the required precautions and the claimant (one of the brothers) was injured in an explosion. ICI was sued as being vicariously liable for the other brother’s breach of statutory duty. As the defence of volenti would have been available to the brother if he had been sued, it was available to the defendant. The court was prepared to imply an agreement from the facts. NB The defence of volenti is not available to an employer when sued for their own breach of statutory duty.

Question 24

What does ex turpi causa non oritur actio mean?

Answer 24

Illegality: it means that no legal action can arise from a blameworthy cause. A claimant cannot claim for damages if the injuries arose from their illegal act.

Question 25

Is ex turpi causa a partial or complete defence?

Answer 25

It is a complete defence.

Question 26

What are the requirements for a defence for ex turpi causa?

Answer 26

There must be a very close connection between the illegal act of the claimant and the injuries they suffer/damages that arise out of the illegal activity. It must also be contrary to public policy to allow the claimant a remedy.

Question 27

Can the ex turpi causa defence be used where a claimant has committed a criminal act because of the defendant’s alleged negligence?

Answer 27

Yes, it can be used. See Clunis v Camden and Islington Health Authority [1998], where the claimant tried to sue the hospital for loss of freedom (after being put in prison for stabbing a man), and claimed the hospital hadn’t taken good enough care of him and his mental disorder after being released. The court struck out the action as, even if they had been negligent, damages could not be recovered for the consequences of the claimant’s own illegal act.

Question 28

Does ex turpi apply to companies as well as individuals?

Answer 28

Yes, it does. See Stone & Rolls Ltd (in Liquidation) v Moore Stephens (a Firm) and Another [2009], where the claimant company, which had been involved in fraudulent financial transactions, could therefore not sue its auditors for negligence in failing to blow the whistle when it became insolvent as a result of legal proceedings by the victims of its fraud.

Question 29

What is the ‘inextricable link’ test? Give two case examples.

Answer 29

In the defence of ex turpi causa, there must be an inextricable link between the criminal act and the loss claimed.

E.g. Gray v Thames Trains Ltd [2002] - the claimant sued the train company for his inability to earn after stabbing someone to death after mental problems from a train crash, but there was an inextricable link between his crime and his inability to earn money. The defence was accepted. N.B On a related note, suicide is not a crime.

Conversely, in Allen v Hounga [2014], the act of coming into the country illegally was not inextricably linked to the abuse via racial discrimination on nationality grounds the au pair had received from the employer. The defence was thrown out, as the illegality ‘provided no more than the context in which the employer perpetrated the acts of abuse’.

Question 30

Will minor criminal or regulatory offences be sufficient to establish the ex turpi causa defence?

Answer 30

Not always - Minor criminal or regulatory offences committed by a claimant may not be sufficient to establish the defence. In Shadbolt v Stefanatica [2018] the court refused to apply the doctrine of ex turpi causa where the illegality was limited to a failure to obtain a MOT certificate.

Question 31

Is contributory negligence a partial or complete defence?

Answer 31

Contributory negligence is a partial defence and will only reduce the amount in damages for the defendant.

Question 32

Which piece of legislation outlines the rules for contributory negligence?

Answer 32

Law Reform (Contributory Negligence) Act 1945

Question 33

How would the defendant establish contributory negligence? (road crossing, bin lorry, 3rd without a case)

Answer 33

The defendant must prove that the claimant acted carelessly, through one of the three options:

1. The claimant is partly to blame for the accident (Fitzgerald v Lane and Patel [1989] - road crossing without looking and was hit first by one car and then by another. Although he could not show which car caused his injury, they were jointly liable for their failure to respond to his crossing the road. He recovered only half of the damages because of his own contributory negligence.)
2. The claimant puts themselves in a dangerous position (Davies v Swan Motor Co (Swansea) Ltd [1949] - bin lorry and bus collision. The claimant’s husband had contributed to his own death: he had made it harder for the bus to overtake the lorry – which had increased the risk of a collision – and he had shown a lack of reasonable care for his own safety, so the damages were reduced by 20 per cent.)
3. If they increase the extent of the injury suffered through failure to take reasonable care for their own safety. (e.g. not wearing a seatbelt and extending their injuries - N.B. VOLENTI is the defence that doesn’t accept seatbelts)

Question 34

Create a list of the type of claimants that the courts are reluctant to find contributorily negligent. Why are the courts more lenient when judging these claimants’ behaviour?

Answer 34

1. When the claimant is a child (they are too young to understand the risk they were taking)
2. When the claimant is an employee (the employer has a duty of care to keep them safe)
3. When the claimant is a rescuer (courts are generally sympathetic to rescuers)
4. When the claimant was in a difficult position (the ‘dilemma principle’)

Question 35

Which two cases are good examples of the ‘dilemma principle’?

Answer 35

Sayers v Harlow Urban District Council [1958] the reduction of 25 per cent in Mrs Sayers’ damages was applied because the Court of Appeal held that she had been careless when descending and considered that she was one-quarter to blame for her own injuries.

Dorning v Personal Representative of Rigby (Deceased) [2007]. The claimant was the second of four riders in a motorcycle convoy. The lead rider, Rigby, lost control of his motorcycle on a bend, collided with a car and was killed in the resulting explosion. The claimant suffered injuries when he lost control of his motorcycle at the same point. He sought damages from Rigby’s estate, alleging that his collision was caused by his braking suddenly when he witnessed the explosion. The Court of Appeal allowed his claim, but reduced his damages by 20 per cent, on the ground that he had been contributorily negligent in driving too close behind Rigby: if he had been further behind, he would not have needed to brake so suddenly, and would not have lost control of his motorcycle.

Question 36

Would the defence of contributory negligence apply if the claimant’s ‘contribution’ to their potential injuries is foreseeable to someone who has a duty of care towards them?

Answer 36

The defence may not apply. See George v Home Office [2008], where a prisoner fell off a bunk bed after suffering a withdrawal seizure. Their lifestyle with drugs was ‘too remote in time, place and circumstance’ and prison staff were aware of his potential for withdrawal seizures, so the defence failed and the Home Office were liable.

Question 37

What are the three relevant legal arguments for rescue situations?

Answer 37

Volenti, contributory negligence and causation.

Question 38

Why would volenti generally not be available against a rescuer?

Answer 38

The defence of volenti will generally not be available against a rescuer because the bona fide rescuer is motivated by the desire to assist the victim and cannot be said to choose the risk.

Question 39

Why would the courts be reluctant to find that a rescuer has been contributorily negligent?

Answer 39

The courts will be reluctant to find that a rescuer has been contributorily negligent because the rescuer acts in the agony of the moment in a dangerous situation created (usually) by the defendant. The situation is similar where the person who has been rescued is the person who has been negligent.

Question 40

Is the person that is being rescued negligent?

Answer 40

Although in general no one owes a duty to anyone else to preserve their own safety, yet if by their own carelessness a person puts themselves into a position of peril of a kind that invites rescue, they would in law be liable for any injury caused to someone whom they ought to have foreseen would attempt to come to their aid (Barry J).

Question 41

Would the rescuer’s action be regarded as a break in the chain of causation?

Answer 41

The rescuer’s action may be regarded as a break in the chain of causation, but as it is foreseeable that if a person is injured someone may attempt a rescue, this is unlikely.

Question 42

If children are playing a game by throwing bark at each other, is volenti implied?

Answer 42

Yes.

Blake v Galloway [2004]. A group of boys playing with bark chippings threw the chippings at each other and a chip thrown by the defendant injured the claimant in the eye. The Court of Appeal found that by participating in the game the claimant had impliedly consented to the risk of a blow to his body, providing that the bark was thrown in accordance with the tacit understanding about the conventions of the game.

Question 43

Can children be contributory negligent? (14 year old, swimming pool)

Answer 43

Gannon v Rotherham Metropolitan Borough Council [1991] a 14-year-old was contributorily negligent when he dived into the shallow end of a swimming pool and broke his neck. A person of his age should have known of the potential danger.