Defence to negligence

Question 1

see also Primeo Fund v Bank of Bermuda (Cayman) Ltd [2024] AC 727.

Standard Chartered Bank v Pakistan National Shipping (Nos 2 & 4) [2003] 1 AC 959

s 4 - meaning of fault - contributory negligence

Reasoning
Lord Hoffmann
He endorses the dicta of Lord Hope in Reeves about the “two-limb” approach to fault.

From the wording of s.1, he deduces that the aim of the act is:

To relieve plaintiffs whose actions would previously have failed and not to reduce the damages which previously would have been awarded against defendants.

He also asserts that Edgington v Fitzmaurice shows that:

If a fraudulent representation is relied upon, in the sense that the claimant would not have parted with his money if he had known it was false, it does not matter that he also held some other negligent or irrational belief about another matter and, but for that belief, would not have parted with his money either.

Hence it is irrelevant that Plaintiff was mistaken as to the ability to get reimbursement, since it was relying on the Defendant’s fraudulent misrepresentation that the documents it presented were true (i.e. not falsified).

Answer 1

HL held that Plaintiff could claim for loss caused by a falsified bill of lading and this would NOT be reduced by contributory negligence.

Defendant contracted to ship cargo for B and payment was to be made by a letter of credit from X bank to Plaintiff bank.

The conditions of the letter being issued were:

All docs had to be present and issued by a certain time, and
All docs had to be delivered to Plaintiff by a certain date.

Plaintiff was to pay Defendant and the money was to be paid to Plaintiff by X. Defendant falsified docs to make it look like they had been issued on time and handed them into Plaintiff late. Plaintiff was unaware of the falsification (Defendant said they were genuine and true), but was aware of them being handed in to it late. It lied to X, claiming they were handed in on time, but X realised about the falsification and refused to pay.

This caused Plaintiff loss, since it had negligently relied on the false belief that it could obtain reimbursement from X, which it could not.

Plaintiff sued Defendant for tort of deceit when it became aware of the falsification, and Defendant claimed contributory negligence on Plaintiff’s part for relying on the negligent misunderstanding.

Question 2

see also Pritchard v Co-Operative Group Ltd [2012] QB 320

Hicks v Young [2015] EWHC 1144 (QB)

contributory negligence

Answer 2

Contributory negligence is not available as a defence to the torts of assault and battery + false imprisonment (intentional trespass torts).
Held: the damages were only reduced in regard to the negligence aspect of the claim not the False imprisonment.

C was driven by D in D’s taxi to C’s home. As C stood up inside the taxi, D drove off causing C to sit back down. D thought that C was trying to evade paying but the result of his actions was to keep C a prisoner. C opened the door and jumped out when the taxi was driving at about 20mph and sustained injury.

Question 3

Primeo Fund v Bank of Bermuda (Cayman) Ltd [2024] AC 727 (Privy Council)

meaning of fault s 4 - contributory negligence

Answer 3

Definition of ‘fault’ in s 4 refers to conduct (‘other act or omission’) not cause of action

*[335] ‘The same is true of the second limb of the definition of fault in section 4 of the UK statute (negligence, breach of statutory duty or other act or omission which . . . would, apart from this Act, give rise to the defence of contributory negligence), since it is clear that, in addition to the words other act or omission, negligence is a word applicable to both claimant and defendant and therefore that it refers to a standard of conduct, not a cause of action…

…there is nothing in the definition of fault which has the effect of preventing contributory negligence from being available as a defence where there are concurrent claims in contract and tort, where that was the case at common law before the legislation. What matters is whether the claimants conduct is the sort of conduct which before the legislation was enacted would have given rise to a defence of contributory negligence.’*

Question 4

Reeves v Commissioner of Police for the Metropolis [2000] 1 AC 360

contributory negligence - deliberate act by C - suicide

NB: Similar reasoning adopted in Corr v IBC Vehicles Pty Ltd [2008] AC 884 – suicide of deceased did not break the causal link with D’s negligence (workplace negligence) but by majority thought a deduction for contributory negligence justifie

Answer 4

Holding: House of Lords held that D’s duty extended to taking steps to stop P harming himself

• If this was so, could D nonetheless argue that P’s fault was in some way a cause of the damage justifying a reduction for contributory negligence?

The HoL said yes, it is CN. The fact that the suicide did not break the CoC, does not mean that it cannot amount to CN. => 50% reduction.

Facts: P’s estate sued on basis that D had negligently failed to prevent P from hanging himself in a police cell – factual finding that P was of full capacity at the time of the suicide

Question 5

Jones v Boyce

contributory negligence - standard of care

Answer 5

Holding
The court ruled in favor of Mr. Jones.

Reasoning
The court acknowledged that Mr. Jones’ jump might seem imprudent in hindsight. However, they emphasized the need to consider the situation from his perspective at the time of the perceived danger. Faced with a sudden emergency situation, his actions were deemed a reasonable response to a perilous situation, even if they resulted in unintended consequences.

Facts of the Case
Mr. Jones, a paying passenger, was riding on a coach owned and operated by Mr. Boyce.
During the journey, a crucial component – the coupling rein – broke, causing one of the horses to become uncontrollable.
The driver attempted to stop the careening coach by steering it towards the roadside.
Fearing an imminent collision, Mr. Jones jumped off the moving vehicle, sustaining a broken leg.
The coach, however, came to a safe halt without overturning.

Issue
Whether Mr. Jones’ decision to jump from the moving coach constituted contributory negligence, thereby barring him from claiming compensation for his injury from Mr. Boyce, the coach proprietor.

Question 6

Gough v Thorn

contributory negligence -standard of care

Answer 6

Decision

The Court of Appeal held in favour of the girl. It was not negligent for a thirteen-year-old to rely on the lorry driver’s assurance. The defence of contributory negligence was therefore inapplicable.

This Case is Authority For…
A person’s age is relevant to whether they took reasonable care for their safety.

Is the fact that C is a child relevant to contributory negligence?

Facts
A lorry driver stopped at a junction and waved at traffic to stop, to allow a thirteen-year-old girl and her siblings to cross. When the girl tried to cross, the defendant (who was not paying attention) hit her with his car. The girl sued the defendant in negligence. The defendant argued that the girl’s damages should be reduced for contributory negligence

Question 7

Campbelll v Advantage Insurance limited

contributory negligence - standard of care

Answer 7

Dismissing the appeal, the Court confirmed that the test for whether someone has
breached a duty of care in negligence is an objective standard and that, unlike age,
intoxication was not a characteristic to be taken into account. Underhill LJ (at
paragraph 50) stated, “In my view it is clear that the law in this jurisdiction has come
down against treating the fact that the claimant is drunk as a characteristic that can be
taken into account in deciding whether he or she took reasonable care for their own
safety.” (damages were reduced by 20%)

Facts:
The Claimant had been drinking alcohol at a nightclub with 2 brothers, Dean and Aaron Brown. The Claimant was assisted to get into Dean’s car and placed in the front passenger seat. The Brown brothers returned to the club continuing drinking for an hour or so. Evidence on the balance of probabilities was that Dean had assisted the Claimant from the front passenger seat into the back seat before driving and then
crashing into an articulated lorry killing Dean. The Claimant, who was most likely lying down, survived but suffered serious injuries. The Defendant admitted primary liability but alleged contributory negligence on the basis that the Claimant had knowingly allowed himself to be driven by Dean who he knew, or ought to have known, was too
intoxicated to drive, and because the Claimant was not wearing a seatbelt.
Issues:
The Court of Appeal considered whether the judge was correct to apply an objective test of the reasonable, competent and prudent passenger when the Claimant was
intoxicated to establish contributory negligence.

Question 8

St George v Home Office

contributory negligence - standard of care

Answer 8

The court rejected D’as arguments
Principle: C’s act must have sufficient proximity in time, place and circumstances of D’s negligence to be regarded as a potent cause of injury and thereby amount to contributory negligence

Facts
C suffered from withdrawal seizures as a result of drug abuse from his late teens
While C was imprisoned, C fell from his top bunk as a result of a withdrawal seizure and suffered head injuries
C had informed the prison authorities of his withdrawal seizures
C sued for negligence based on the failure of the prison staff to prevent his injury
Home Office (D) argued that C was liable contributory negligence under the Law Reform (Contributory Negligence) Act 1945 as he was at fault for becoming addicted to drugs

Question 9

Stapley v Gypsum Mines Ltd [1953] AC 63

contributory negligence - approtionment

Answer 9

Held:

3:2

The appeal was allowed but the damages were reduced by 80%.

Apportionment is A mixture of relative culpability and relative causal potency of each parties’ conduct.

Mr Stapley was killed when a roof of a mine fell on top of him. At the time of his death he was acting against his employers orders. He and another employee Mr Dale had been told to bring the roof down as it was dangerous. The pair knew that this meant that they should not to work in that part of the mine because of the risk. They attempted to bring down the roof but were unsuccessful in their attempts. They then decided to continue with the work they had originally been given. At the time of the collapse, Mr Dale had briefly left that part of the mine and was uninjured. Mrs Stapely brought an action against his employer for breach of statutory duty in relation to the actions of Mr Dale. The trial judge found for the Claimant, but reduced the damages by 50% under the Law Reform (Contributory Negligence) Act 1945. The Court of Appeal allowed an appeal by the Defendant holding that Mr Stapely was solely responsible for his own death. The Claimant appealed to the Lords.

Question 10

Froom v Butcher [1976] QB 286

contributory negligence - apportionment

note the different emphasis (in terms of final figure) given to the dangerousness of driving a car in an early apportionment case in Australia, Pennington v Norris (1956) 96 CLR 10 – harsh judgement.

Answer 10

Held:

The Court of Appeal allowed the appeal. They made a 20% reduction to the claimant’s damages.

Dictum/Principle:
* Contributory negligence applies whenever a reasonable person would foresee that he might be hurt by a particular course of action. It does not matter that the contributory negligence did not cause the underlying accident itself. What is relevant is what caused the injury or the extent of the injury.
* A reasonable person would realise that they may be hurt if they do not wear a seat belt while in a moving vehicle. It is irrelevant that the claimant subjectively believes they will be safer if they do not wear a seat belt.
* Where the failure to wear a seat belt would have avoided the injury, the starting point for reductions should be 25%. Where it merely would have made the injuries less severe, the starting point is 15%. If wearing the seat belt would make no difference, there should be no reduction.

Facts: The claimant was injured in a car accident caused by the defendant’s negligent driving. The claimant broke a finger, and also suffered chest and head injuries. At the time of the accident, the claimant was not wearing a seat belt. If they had been wearing a seat belt, they would not have suffered chest and head injuries. The defendant argued that the claimant’s damages should be reduced forcontributory negligence. The claimant personally believed he was safer not wearing one (he did not like wearing the belt because of the danger of being trapped in the vehicle after the crash and because he did not drive at more than normal speed). The trial judge rejected contributory negligence, stating that it would be an unreasonable interference with people’s freedom. The defendant appealed.

Question 11

Smith v Baker & Sons [1891] AC 325

volenti non fit injuria

Answer 11

Held: The House of Lords held (3:2) that the claimant may have been aware of the danger of the job, but had not consented to the lack of care so was therefore entitled to recover. Compare this case to ICI v Shatwell [1965]

Facts: The Claimant (the defendant’s employee) was required to drill holes in a rock cutting. He was aware crates of stones swing overhead. A stone fell out of crate and injured him. The claimant brought an action in negligence against the defendant

Question 12

In Nettleship v Weston [1971] 2 QB 691

volenti non fit injuria

Answer 12

A learner driver is expected to meet the same standard as a reasonable qualified competent driver. Volenti did not apply as he had checked the insurance cover which demonstrated he did not waive any rights to compensation. His damages were reduced by 50% under the Law Reform (Contributory Negligence) Act 1945 to reflect the degree to which he was also at fault.

C was giving a friend’s wife, D, driving lessons in her husband’s car
C was injured when D struck a lamp and sued for negligence
It was argued by D that D was not liable as C had knowledge of her inexperience

Question 13

ICI Ltd v Shadwell

volenti non fit injuria

Lord Reid (at 672): ‘I think that most people would say… that there is a world of difference between two fellow-servants collaborating carelessly so that the acts of both contribute to cause injury to one of them, and two fellow-servants combining to disobey an order deliberately though they know the risk involved.’

= the employers had been so active in ensuring safety – the deliberate defiance led to courts to let the defence succeed. However, note that it is hard to say that there is an agreement - The court has likely looked at the nature of C’s conduct.

Answer 13

The volenti defence suceeded.
The appeal was allowed. The brothers had deliberately acted in defiance of the employer’s express instructions in full knowledge of the risks. The workers were under the statutory duty not the employer. The employer had been instrumental in bringing in the statutory regulations and ensured all workers were aware of them. They had also previously dismissed a worker for flouting the regulations.

Facts: Two brothers worked for ICI as shotfirers – as part of its own research, ICI had implemented strict protocols around the use of detonators (part of the shotfirers job) – they had taken steps to ensure that all of the shotfirers, including the brothers, had been told about this research and about the statutory duties (based on D’s research) that were passed to ensure the shotfirers were safe.

Despite this, the brothers agreed that they would test the detonators using the older method which resulted in an explosion – one brother sued the other, and ICI was alleged to be vicariously liable for the other brother’s breach of statutory duty

Question 14

Morris v Murray [1991] 2 QB 6

volenti non fit injuria

Answer 14

Held: Defence of volenti succeeded but the reasoning of the court largely relies on the nature of C’s conduct.

• Fox LJ – ‘Flying is intrinsically dangerous and flying with a drunken pilot is great folly’
• Stocker LJ – ‘To accept a flight in an aircraft piloted by a pilot who had had any significant amount of drink, let alone the amount which manifestly Mr. Murray had had, was to engage in an intrinsically and obviously dangerous occupation

Facts: Plaintiff and deceased had been drinking together for a considerable period before deceased decided to fly his light aeroplane - P agreed to come on the flight, drove deceased to the airfield, assisted in fuelling the plane and asked questions showing an interest in the flight – the ‘short and chaotic’ flight resulted in a crash in which D was killed and P badly injured – P sued in negligence.

Question 15

Wooldridge v Sumner [1963] 2 QB 43

volenti non fit injuria & breach of duty

Answer 15

Held: In Wooldridge, no liability not because C (a photographer in the horse showjumping ring) accepted any risk but simply because the rider of the horse that injured him was not in breach of duty – similar reasoning for negligence actions in contact sports.

the context of the recreational activity determines the standard of care by which D’s conduct is judged rather than any defence of volenti – if, within the confines of the activity, D’s conduct is reasonable then no liability in the first place – conversely, if D’s conduct is unreasonable, even within the confines of the recreational activity, very unlikely C will be volens to the risk created by it.

Question 16

Pitts v Hunt [1991] 1 QB 24

pre Patel v Mirza - illegality

Answer 16

Held:

Ex turpi causa and public policy did operate to preclude the imposition of a duty of care. The trial judge was wrong in principle in finding that the Claimant was 100% contributory negligence since the wording of the Act precluded such a finding. S.148(3) of the Road Traffic Act did preclude the application of the defence of volenti non fit injuria.

The Claimant, Mr Pitts (aged 18), and Mr Hunt (aged 16), were friends. They had been out for an evening together. Mr Hunt gave the Claimant a lift on the back of his trial motorbike which was a Suzuki 250cc. He had no licence to ride the bike on the road, indeed the engine capacity limit for a 16 year old to ride legally would be 50cc. He also had no tax or insurance. The pair consumed alcohol at their destination and Mr Hunt was twice over the legal limit for driving. Nevertheless, the pair embarked on their journey home on the motorcycle. Witnesses gave evidence that the two were obviously very drunk and Hunt was driving recklessly and erratically. He was zig-zagging down the centre of an A road at great speed, with both the parties shouting and jeering. Mr Pitts was jeering Mr Hunt on and encouraging the dangerous driving. At one time, Mr Hunt drove dangerously close to a witness in order to scare them. Unfortunately Mr Hunt hit an oncoming car when he was travelling at speed on the wrong side of the road. Mr Hunt was killed and the Claimant was left permanently partially disabled. He brought an action for the injuries sustained against the personal representatives of Mr Hunt. In their defence they raised the defences of volenti non fit injuria, contributory negligence and ex turpi causa. The trial judge held that the Claimant could not recover based on the fact that ex turpi causa operated to preclude the imposition of a duty of care and also that the Claimant was 100% responsible for his own injuries under the Law Reform (Contributory Negligence) Act 1945. On the issue of volenti he held that s.148(3) of the Road Traffic Act 1972 precluded the application of the defence. The Claimant appealed.

Question 17

Tinsley v Milligan [1994] 1 AC 340

pre Patel v Mirza - illegality

Answer 17

Held, dismissing the appeal, that despite the fact that the property had been acquired for fraudulent purposes, the equitable right of the claimant would stand
(a non-tort case/trusts casts) – appropriate test was ‘reliance’ – did P have to rely on the illegality as part of the factual background to establish the action – not really clear how it applied in tort and was largely ignored

Did the illegality defence apply?

T and N were a cohabiting couple
The property was in the sole name of T although M also contributed to the purchase so that more social security payments could be fraudulently claimed by M, with T being in the know
The couple fell out and T sought sole possession
M argued that she should have equal beneficial share by way of presumed resulting trust
T rebutted that M could not rely on presumed resulting trust under the maxim ‘he who comes into equity must come with clean hands’, given that original transaction was for a fraudulent purpose
The Court of Appeal held in favour of T, rejecting the old reliance test for illegality as too rigid and applying a public conscience test to the illegality defence, as stated by Nicholls LJ “. . . the underlying principle is the so-called public conscience test. The court must weigh, or balance, the adverse consequences of granting relief against the adverse consequences of refusing relief. The ultimate decision calls for a value judgment.”

Question 18

Modern approach to illegality defence – starts with this decision

Gray v Thames Trains Ltd [2009] 1 AC 1339

modern approach - illegality

Lord Hoffmann – a narrow and wide version of the defence

‘Narrow’ version - based on the law’s need to avoid inconsistency – if the law had imposed a criminal sanction, and C suffered loss as a result of this sanction, would be inconsistent to allow recovery of this loss through a civil claim

‘Wider’ version – even if not directly inconsistent, were situations where ‘it was offensive to public notions of the fair distribution of resources that a claimant be compensated (usually out of public funds) for the consequences of his own criminal conduct’

Whether these applied depended on a causal analysis – easier to establish for narrow version

In this case: All heads of damage excluded by narrow or wide versions of the defence

Answer 18

Can a claimant recover damages for the consequences of their own criminal offence or its sentence?

Decision
The House of Lords held in favour of the defendant. None of the losses were recoverable.

This Case is Authority For…
The judges in this case disagreed on why the defendant should succeed. Lord Hoffman thought that the illegality defence comprises two rules: a ‘wide’ rule and a ‘narrow’ rule.

C developed PTSD after a train crash and killed a man as a result of a psychotic episode caused by the PTSD
C was found guilty of the crime of manslaughter with diminished responsibility
C brought action in negligence against the train operator (D) for
The loss of liberty, earnings, damage to reputation, feelings of guilt and remorse deriving from criminal sanction and
His civil liability to compensate for the deceased’s dependants

Question 19

Patel v Mirza

illegality

After considerable disagreement in non-tort cases about the correct approach to the defence, a nine-member Supreme Court in Patel v Mirza set out (by majority) the correct approach (ostensibly for all private law claims)

• Lord Toulson – whether claim against public interest because of illegality depends on three factors

(a) the underlying purpose of the prohibition which has been transgressed;

(b) considering conversely any other relevant public policies which may be rendered ineffective or less effective by denial of the claim; and

(c) keeping in mind the possibility of overkill unless the law is applied with a due sense of proportionality.

= unclear what would happen to the approach in Gray. Almost no discussion of Gray in Patel v Mirza is so unclear whether the approach in Gray remained authoritative In particular, should lower courts ignore Gray and start again with the Patel v Mirza approach?

Answer 19

• The claim for unjust enrichment was allowed
• The defence of illegality did not apply

> “The essential rationale of the illegality doctrine is that it would be contrary to the public interest to enforce a claim if to do so would be harmful to the integrity of the legal system (or, possibly, certain aspects of public morality, the boundaries of which have never been made entirely clear and which do not arise for consideration in this case). In assessing whether the public interest would be harmed in that way, it is necessary

• a) to consider the underlying purpose of the prohibition which has been transgressed and whether that purpose will be enhanced by denial of the claim,
• b) to consider any other relevant public policy on which the denial of the claim may have an impact and
• c) to consider whether denial of the claim would be a proportionate response to the illegality, bearing in mind that punishment is a matter for the criminal courts.”

> “The broad principle is not in doubt that the public interest requires that the civil courts should not undermine the effectiveness of the criminal law; but nor should they impose what would amount in substance to anadditional penalty disproportionate to the nature and seriousness of any wrongdoing”

> “Respect for the integrity of the justice system is not enhanced if it appears to produce results which are arbitrary, unjust or disproportionate”

C paid a large sum of money to D on agreement that D would bet the money with insider information
The agreement could not be carried out because the insider information was not coming
D refused to return the money to C
C brought a claim for the repayment of money in unjust enrichment

Question 20

Henderson v Dorset Healthcare University NHS Foundation Trust [2021] AC 563

illegality - modern approach

Issue(s)
The claim in this case raised the issue of whether Gray v Thames Trains Ltd [2009] UKHL 33 remained good law in light of the Supreme Court’s reform of the defence of illegality in Patel v Mirza [2016] 3 WLR 399. In Gray, Lord Hoffman stated that there were two illegality rules in tort:

The narrow rule: a claimant cannot recover in tort for the consequences of a criminal sanction – such as the cost of a fine or the loss of liberty.
The wide rule: a claimant cannot recover for losses which were caused by their own illegal actions (other than those caused by a criminal sanction) – such as remorse or the risk of being sued by the victim.
Lord Hoffman argued that these rules did not arise from the defence of illegality. Rather, they are the normal application of novus actus interveniens principles in causation. If this is true, then the ruling in Patel v Mirza might not affect this area of tort. The lack of causation precludes liability, making defences irrelevant.
However, Lords Brown and Roger in Gray disagreed that the rules in tort were based on causation. They attributed the rules to the defence of illegality. If this is true, then the two rules in Gray have been replaced by the approach in Patel v Mirza. Even so, how Patel v Mirza might apply in this kind of case was unclear. This was particularly true in light of Lord Phillip’s obiter dicta in Gray speculating that the rules might not apply where the criminal sentence did not indicate that the offender was personally responsible for the offence (particularly where the sole sentence was a hospital order).

Answer 20

The Supreme Court unanimously dismisses Ms Henderson’s appeal, and holds that her claim against Dorset Healthcare is barred by the illegality defence. Lord Hamblen gives the judgment, with which all members of the Court agree.

Lord Hamblen at [145]: * ‘… I consider that the decision in Gray should be affirmed as being “Patel compliant” - it is how Patel “plays out in that particular type of case”. The clearly stated public policy-based rules set out in Gray should be applied and followed in comparable cases’

• Hence, if the factual pattern of Gray (or similar facts) arise, the starting point was Gray

(see more details in the tutorial)

Facts
The appellant suffered paranoid schizophrenia. The respondent, an NHS Foundation Trust, was responsible for her care. Due to their negligence, the appellant was not admitted to hospital when it became apparent that she was having a serious psychotic episode. During this episode, she stabbed her mother to death.

The appellant was subsequently convicted of voluntary manslaughter by reason of diminished responsibility. This resulted in her being sentenced to a hospital order under the Mental Health Act 1983. The appellant sued the respondent in negligence. She claimed the following losses:

Damages for the loss of amenity, depressive disorder and PTSD she suffered as a result of killing her mother;
Damages for the loss of liberty imposed by her sentence;
Damages to reflect her inability to inherit under her mother’s estate due to the provisions of the Forfeiture Act 1982.
Future losses, including the cost of psychotherapy and a care worker.
The respondent argued that the defence of illegality barred the appellant’s claim.

Question 21

Lewis Ranwell v G4S Health Services

illegality - insanity

Answer 21

It held, by a majority of 2 to 1, that a person who deliberately and unlawfully kills whilst insane is not barred by the defence of illegality from suing mental health services for allegedly failing to treat him properly.

Underhill LJ, giving the leading judgment (with which Sharp LJ agreed), acknowledged that the question was not an easy one but held that as a matter of legal coherence and public confidence the law does not and should not generally apply the illegality defence where the Claimant does not know what they are doing is wrong and has no moral culpability for their actions.

Andrews LJ, dissenting, considered that as a matter of public policy there is nothing disproportionate about precluding someone who intended to kill, and did so, from bringing a claim in negligence in reliance on their deliberate and unlawful act. She concluded that the policy rule preventing such claims should not rest on nice distinctions between having little or no personal responsibility because of the state of the Claimant’s mental health at the time.

Question 22

• Owadally v Planology Ltd [2023] EWHC 339 (KB)

illegality - strict liability

Answer 22

• Allowed to go ahead despite heads of damage including the fine imposed and cost of criminal trials (narrow rule) as well as some heads of damage caught under the wider rule in Gray – much would depend on C’s knowledge whether they were in breach.

=> If you want to succeed you must show that you have no knowledge at all that you are in breach.

– action against professional advisors for failing to warn of planning requirements, which made claimants guilty of a statutory strict liability offence – attempt to exclude parts of claim through illegality defence

Question 23

RO v Gray [2021] EWHC 2770 (QB) –

illegality

if case of unilateral illegality – it is not clear that you would ever be able to have an illegality defence in that context.

Answer 23

• Gray distinguished on basis C was not charged (and that the criminality was ‘relatively minor’, and applying the three-stage Patel approach, illegality defence dismissed.

[179] ‘It is difficult to imagine (ignoring joint enterprise cases) that the integrity of the law could ever be damaged by the courts coming to the aid of a seriously injured claimant if his injuries were caused by the negligence of the defendant. In such a case the integrity of the law is far more likely to be damaged by a refusal to assist. As Hale LJ (as she then was) observed in Parkinson v St James and Seacroft University Hospital NHS Trust [2002] QB 266, para 56, the right to bodily integrity is the first and most important of the interests protected by the law of tort’

C engaged in ‘deplorable and disgraceful’ conduct (including deliberately ramming C’s car) but was not charged – D’s chased C’s car and deliberately ran in it off the road, C suffered serious injuries – could there be an illegality defence?

Question 24

Stoffel & Co v Grandona:

illegality

NB: Gray was upheld in Henderson but with respect to the particular context in Gray. There is scope for Gray but not in all illegality cases (may then use the three stage approach in Patel)

Answer 24

Supreme Court evaluates three stages of Patel test

1. Purpose of the prohibition (criminalisation of mortgage fraud) would not be enhanced by denying the claim;
2. Other relevant policies suggested reasons why claim should be allowed (enforcing professional duties, recognising importance of property rights);

If balance of 1 and 2 factors is that defence should not apply, no need to consider whether applying defence is proportionate.

But, as it was argued, consider proportionality point [36]-[43] and would have found in claimant’s favour on that as well.

Facts: Claimant had been party to a mortgage fraud, but her solicitors had been negligent in not registering documents to give lender a mortgage over the property, claimant was liable on the personal covenant in the mortgage

Question 25

White v Blackmore [1972] 2 QB 651

Answer 25

Note that an exclusion of liability defence is different from a volenti defence:

Question 26

Jackson v Murray [2015] UKSC 5

contributory negligence

• Section 1(1) of the 1945 Act does not specify how responsibility is to be apportioned. Decided cases show two aspects to apportionment: the respective causative potency of the parties’ acts and their respective blameworthiness. The court consistently imposed a high burden on drivers to reflect the potentially dangerous nature of driving. [20-26] There is no demonstrably correct apportionment. Since different judges may legitimately take different views of what is “just and equitable” in particular circumstances, those differing views should be respected, within the limits of reasonable disagreement.
• The Extra Division provided only a very brief explanation of their apportionment of 70%. They rightly considered that she did not take reasonable care for her own safety, but regard has to be had to her circumstances. She was only 13. An assessment of the defender’s speed in the circumstances was far from easy. Attempting to cross a relatively major road with a 60mph speed limit, after dusk and without street lighting, is not straightforward, even for an adult. The Extra Division considered that the defender’s behaviour was “culpable to a substantial degree”, with which Lord Reed agrees. Overall the Extra Division’s reasoning does not provide a satisfactory explanation of their conclusion that the pursuer bore the major share of responsibility. Lord Reed considered the defender’s conduct played at least an equal role to that of the pursuer in causing the damage and was at least equally blameworthy. He therefore allows the appeal and awards 50% of the agreed damages to the pursuer.
• Dissent:Not to look or to knowingly run into the path of the car displayed a very high degree of carelessness. The Extra Division were entitled, because of the extent of her blameworthiness, to attribute to the pursuer the major share of responsibility.

Answer 26

The Supreme Court allows Ms Jackson’s appeal by a majority of 3-2 (Lord Hodge and Lord Wilson dissenting) and awards her 50% of the agreed damages.

Facts: Ms. Jackson, the pursuer, was struck by a car driven by the defender when she crossed a road near her home after alighting from a school bus. The incident occurred on the evening of January 12, 2004, on an unlit, 60 mph road. The defender was driving at 50 mph with his lights on. Ms. Jackson, aged 13 at the time, passed behind the bus, paused briefly, then stepped into the road and ran into the path of the defender’s car, resulting in serious injuries.

The Lord Ordinary found the defender negligent for not driving at a reasonable speed, which could have prevented the accident. However, the court also attributed the primary responsibility for the accident to Ms. Jackson’s failure to look or respond sensibly to the oncoming car. Her contributory negligence was assessed at 90%.

The Inner House of the Court of Session revised this assessment, reducing her contributory negligence to 70%, acknowledging her actions but also emphasizing the defendant failure to take reasonable care.

Question 27

Fitzgerald v Lane

contributory negligence

Answer 27

House of Lords

Substituted an apportionment of 50% to be divided between the defendants. The court is to first assess the full damages and then assess the degree to which the claimant contributed to their own injuries. Then reduce the damages accordingly. A claimant is not to be over compensated simply because there are two defendants.

The claimant walked across a pelican crossing when the lights for pedestrians were red. He was struck by the first defendant and bounced off the bonnet on to the path of the car driven by the second defendant. He suffered tetraplegia. The claimant was unable to establish whether it was the first impact or the second impact which caused the tetraplegia. The trial judge held that the three were equally at fault with both defendant’s travelling too fast and not paying sufficient attention. He assessed the damages at £596,553 and order the two defendants to pay one third of that amount. The defendants appealed. Both defendants appealed against the apportionment of the damages in that if the judge held they were equally at fault the claimant should have his damage reduced to 50%. The second defendant also argued that he was not the cause of the tetraplegia.

Court of Appeal:

Held:
1. As the claimant was unable to prove which impact was the cause of the tetraplegia, it was for each of the defendants to demonstrate that that they were not the cause. If they were unable to do so they would be jointly liable. (This point was not appealed and has since been overruled in Willsher v Essex)
2. The trial judge was correct in the apportionment of loss under the Law Reform (Contributory Negligence) Act 1945. The defendants appealed this point to the House of Lords.