Defences

Question 1

Introduction

Answer 1

• General defences are contributory negligence, consent (volenti not fit injuria) and illegality (ex turpi causa), can be for negligence and some other torts
  -If Cl can prove all elements of tort (duty, breach and causation of damage in case of neg), Def prima facie liable for harm suffered by Cl, but may be able to escape or reduce liability if they can prove, on balance of probabilities, a defence.
• defence of consent and illegality are complete defences, so escape liability altogether. Contrib neg leads to reduction in damages awarded, reflects Cl own duty of care in accident to extent their lack of care contributed to damage suffered.

Question 2

Contributory negligence - historical approach

Answer 2

• At common law, if Cl injury caused partly by their own fault and partly by negligence of Def, Cl could recover nothing.
  -Butterfield v Forrester 1809 - Def wrongfully obstructed road with a pole, Cl rode violently down road at dusk and was thrown off his horse by pole which could be seen from distance of approx 100yds. As Cl had contributed to his own injury Def was not liable.
• Severity was mitigated by “rule of last opportunity” - Cl could recover despite hi own fault if Def could have avoided accident and Cl couldnt.
  -Davies v Mann 1842 - Cl negligently turned his donkey loose on highway and Def drove into it negligently. Def was liable as he might have avoided consequences of Cl’s negligence.
  -When Def puts Cl in dilemma, Cl may react to situation in manner which was ill-advised when considered in hindsight. In situation, Cl will not be contrib neg if course of action adopted was reasonable in circumstances as they appeared at the crucial time as in Jones v Boyce 1816 where Cl formed opinion that coach which travelling was about to crash so jumped from top of coach and broke leg on landing. Coach brought to safe halt later down road, and on facts Jury held Cl had acted in reasonable and prudent manner in “agony of the moment” which had been created by Def’s neg

Question 3

Modern approach - Statutory regime

Answer 3

• all or nothing approach at common law could result in unfairness and in 1945 Ct given general power to apportion damages when Law Reform (Contributory Negligence) Act 1945) passed, and remains relevant authority.
  -s1(1) states where any person suffers damage as result partly of his own fault and partly of fault of any other person, claim in respect of damage shall not be defeated by reason of fault of person suffering damage but damages recoverable shall be reduced to extent Ct thinks just and equitable having regard to Cl share in responsibility for the damage.
• “Fault” defined at s4 as negligence, breach of statutory duty or other act or omission which gives rise to liability in tort or would, apart from the Act, give rise to the defence of contrib neg.
  Applies to Negligence, Employers liability, Occupier’s liability. Doesnt apply to intentional interference with chattels or trespass to persons.
• Ct of A asked to consider contrib neg in Barnes v Nayer 1986 - Def convicted of manslaughter of Cl wife. in civil action raised 3 defences, based on allegation that Deceased had provoked attack that killed her - none successful. On q of contrib neg, May LJ saw Def response as out of all proportion to alleged provocation. Normal defence in less extreme circumstances would be self defence
  -Co-Operative Group Ltd v Pritchard 2011 - Miss P worked for co-op, requested days holiday that was refused by manager. She confronted manager, as she was shouting and swearing at him manager asked her to leave. She refused he grabbed her by arms, struggle ensued and she bit manager. Miss P sought damages from Co-Op on basis they were vicariously liable for battery and assault by manager - Co-Op argued damages should be reduced under Act given her conduct had caused or contributed to assault.
  -Trial J and Ct of A found that since contrib neg had not been defence available for intentional torts of assault and battery prior to intro of 1945 act, still not available as defence following intro of act.
  -To establish contrib neg Def must prove Cl was at fault and Cl’s contrib neg was cause of injuries suffered.

Question 4

Fault of Claimant

Answer 4

• Def not based on argument that Cl owes a duty of care to Def. All that is necessary is that Cl failed to take reasonable care for their own safety. - While motorcyclist owes no duty to other road users to wear helmet, by not doing so they are guilty of contrib neg if they suffer head injuries in accident while not wearing one (O’Connell v Jackson 1972)
• contrib neg requires foreseeability of harm to oneself - person guilty of contrib neg if they ought reasonably to have foreseen that if they didnt act as reasonable person would have acted, they might be harmed. - Test is objective - what would reasonable person have done in Cl situation?
• Cl failure to take reasonable care of their own safety may also be a cause of accident in which they are injured, but S1 LR(CN)A 1945 requires causal connection with damage suffered to be established before defence successful.
• person may place themselves in dangerous position which exposes them to risk of involvement in accident in which they are harmed, for ex standing on side steps of lorry and being hit by overtaking vehicle (Davies v Swan Motor Co 1949) or taking lift with driver who has been drinking as in Owens v Brimmell 1977 where Cl damages reduced by 20% to take account fact that they accepted lift from driver they knew was drunk.
• no legal obligation to question driver about ability to drive or how much had to drink before agreeing to be passenger
  -Booth v White 2003 - was argued by Def that contemporary attitudes to drink driving imposed responsibility on passer to obtain info about capacity of driver to drive safely. Rejected by Ct of A - had passenger known of driver’s drinking, Cl would have been contrib neg but law didnt require passenger to enquire.
• Cl may take up position which isnt dangerous in itself but where failure to take precautions increases extent of harm which they may suffer - for ex not wearing seatbelt.
  -Froom v Butcher 1976 - Cl suffered following injuries in car accident caused by Def neg: broken ribs, bruises to chest, head abrasions and broken finger. First 2 could be avoided if wore seatbelt. Lord Denning said “accident is caused by bad driving. Damage caused in part by bad driving of Def and in part by failure of Cl to wear seatbelt”. Damages reduced by 25% if damage would have been prevented by wearing seatbelt and 15% if damage would have been less severe. If failure to wear seatbelt makes no difference, then no reduction.
• wording of s1(1) LR(SN)A 1945 gives Ct unfettered discretion to reduce damages it thinks just and reasonable. Ct of A confirmed there are persuasive public policy considerations supporting use of formula, which includes degree of certainly that it provides to parties to encourage settlement. Would require facts or a rare and exceptional nature to lead to a higher proportion of contrib neg being applied.
• need for careful examination of nature of Cl fault can be found in Dorning v PR of Paul Rigby (Deceased) 2007 - Cl riding motorbike along road at appropriate distance behind motorbike ridden by Def, who was negligent in negotiating bend in road. R motorbike hit car on opposite side of road and caused explosion and R killed. Cl reacted to explosion in front of him, braked heavily causing him to lose control of his bike, which slid across road and into field. Trial J found against Cl on basis would not have negotiated bend successfully regardless of accident ahead. Ct of A found on balance of probabilities Cl would have safely negotiated bend had other rider not fallen, but he was riding too close to R so 20% reduction in damages.

Question 5

Fault of Claimant (2)

Answer 5

• Certain situations where Ct will be reluctant to find contrib neg on part of Cl, not certain whether is an age below which child cant be guilty of contrib neg. In considering contrib neg of child in RTA, Ct take into acc that child is “vulnerable road user” and will consider what is just and equitable in determining childs share of responsibility for accident.
  -Russell v Smith 2003 - was held while 10yr old cyclist was primarily responsible for accident, it was just and equitable to reduce damages only by 50% to reflect Cl age.
  -Jackson v Murray 2015 - 13yr old child stepped out from behind school bus and was hit by Def driving too fast and not keeping proper look out, and sustained severe injuries. Trial J reduced damages payable by 90%. Ct of A reduced by 70%. Sup Ct considered 13yr old doesnt exercise same level of judgment as adult but if Def had been driving at reasonable speed and paying proper attention he could have avoided Cl. Parties equally responsible and damages reduced by 50%.
• Ct will be slow to find contrib neg when worker injured in accident at work - regard should be had to dulling of sense of danger through familiarity, repetition, noise, confusion. fatigue and preoccupation at work (Caswell v Powell Duffryn Collieries 1940).
  -Badger v Ministry of Defence 2005 - Cl husband died after being exposed to asbestos by MOD - in claim for damages Ct found husband’s smoking had also contributed to lung cancer and reduced damages by 20% to reflect contrib neg.
• If person attempts to rescue another and is injured in attempt, Ct will be reluctant to find rescuer was careless in own safety.
  -Harrison v British Railways Board 1981 - Cl, guard on train, was injured when attempting to pull passenger onto moving train. As guard contravened employer’s instructions to apply break, he was found to be contrib neg and damages were reduced by 20%
• if Def neg has placed Cl in dilemma, Cl may not be regarded as contrib neg if they act in reasonable way and are injured attempting to avoid greater injury (Jones v Boyce). To take advantage, Cl must show they were placed in dilemma by Def neg, acted in reasonable apprehension of danger and method by which attempted to avoid danger was reasonable.
  -Cl in Sayers v Harlow Urban District Council 1958 was found to be 25% contrib neg when she attempted to climb out of public loo in whcih she was trapped, by putting weight briefly on toilet roll holder.
  -Brandon v Osborne Garrett & Co Ltd 1924 - broken glass fell from roof of Def shop imperilling Cl husband. Cl grabbed husband but injured herself trying to take him to safe place. Had she had remained where she was, she wouldnt have been injured. Was held not contrib neg.

Question 6

Causation

Answer 6

• Not necessary that Cl’s neg contributes to accident - neg must contribute to the damage that Cl has suffered.
  -Jones v Livox Quarries 1952 - Cl was riding on tow bar of vehicle when another vehicle negligently ran into it and injured him. Damages reduced as partly responsible for own injuries, this was a risk he had exposed himself to by his own negligence.
• same principle applies where Cl involved in car crash caused by Neg and isnt wearing seatbelt. If they would have suffered no or reduced injuries if was wearing a seatbelt their damages would be reduced, but if they would have suffered injuries even if wore seatbelt there would be no reduction as failure to wear hadnt contributed to injury.
• if Cl lifestyle choices in period before accident make them more vulnerable to harm when Def behaves negligently.
  -Judgment of Dyson LJ in St George v Home Office 2008 includes examination of principles which defence of contrib neg based. In his opinion, Cl fault in becoming addicted to drugs and alcohol in mid-teens wasnt “potent cause” of his brain damage. It was too remote in time, place and circumstance and was not sufficiently connected with negligence of prison staff, instead it was no more than part of history which led to his being a person whose medical and psychological conditions were as they were when he was admitted to Brixton prison
  -Calvert v William Hill Credit Ltd 2008 - Calvert was compulsive gambler and had several telephone accs with bookmakers, including Defs. When Calvert informed Def that he wanted to close account with them he was told he had been placed on an internal self-exclusion scheme but in fact he remained able to place bets with them and continued to gamble and lose substantial amounts of money. Then sued for neg which had caused him the financial losses he had gone on to suffer.
• Trial J found that even if there had been a breach of limited duty to restrict his access to telephone gambling with them for period of time under self exclusion scheme, Cl losses hadnt been caused by that breach, rather he would simply have gone on placing those bets with other bookmakers. Even if causation had been established, Cl damage would have been substantially reduced by his own contrib neg
• Calvert appealed and said that for contrib neg he was suffering from compulsive disorder at relevant time. Appeal dismissed, Any duty of care owed by Def to Cl was limited to them helping him control his gambling, not to protect his from continuing to gamble and risk of financial loss from the gambling. If duty, breach and causation had been established, pathological condition from which Calvert suffered wouldnt have been good reason to reduce his damages under principles of contrib neg but did continue to gamble during periods of clarity of thinking and would have led to reduction of 30%
• imprudent lending policy can constitute contrib neg, for ex, where loan made in reliance on neg val of security for loan as in Platform Home Loans v Oyston Shipways Ltd 1999 where Cl lender had imprudently made a non-status loan of sum which represented 70% of value of property used as security for loan. Lack of care for its own interests was determined to represent 20% contrib neg.
  -LR(CN)A 1945 didnt change rules for determining whether contrib neg existed or whether Cl neg was sole cause of their injuries.

Question 7

Apportionment

Answer 7

-s1(1) LR(CN)A 1945 provides that Cl’s damages shall be reduced by such extent as Ct thinks is just and equitable having regard to Cl share in the responsibility for damage. Ct consider causative potency and comparative blameworthiness.
- possible for Cl to bear greater responsibility for their injury as shown in Stapley v Gypsum Mines 1953 where S and D, 2 miners of equal status employed by Def were ordered to bring down dangerous part of the roof and not to resume their normal work until they had. Attempt was unsuccessful so jointly abandoned it and resumed normal work - roof fell and S was killed. Widow sued Def as being vicariously liable for D’s neg. Held that D’s neg in disobeying orders was cause of S’s death but S also guilty of contrib neg and damages reduced by 80%.
- cant be finding of 100% contrib neg. Sedley LJ noted in Anderson v Newham College 2003 “If there is liability, contrib neg can reduce its monetary quantification, but cannot legally or logically nullify it.
-Fitzgerald v Lane 1988 - Cl stepped into traffic on busy road, struck by 1st Def car and thrown into path of 2nd Def car. Both Defs neg and Cl contrib neg. Trial J allocated 1/3 to each and reduced damages by 1/3. H of L said wrong approach and where Cl’s fault is cause of accident, Ct should first determine proportion of Cl’s blame and then determine contributions of separate tortfeasors. Cl was considered to be just as much to blame as Defs and damages reduced by 50%.
-Bland v Morris 2006 - coach driver was found to be 2/3 to blame for collision in which her coach was damaged and several passengers on coach were either killed or injured. M pulled coach onto side of road and put hazards on after minor traffic incident but didnt move passengers off coach, which was the hit by lorry driven by B. M hoped to rely on argument that following driver was normally held to be the blame in a collision between 2 motor vehicles. Ct of A acknowledged normal rule but identified additional element on facts of current case that M had a separate, specific and direct responsibility for people on her coach, which made her proportion of responsibility for their injuries greater.

Question 8

Defence of consent or volenti non fit injuria

Answer 8

• Latin phrase interpreted as “one who has invited or assented to act being done toward him cannot, when he suffers from it, complain of it as a wrong” per Lord Herschell in Smith v Baker 1891.
• is complete defence to Cl action - person can consent to an act which would otherwise amount to the commission of a tort. Tort must have been committed before defence becomes relevant.
  -Woolridge v Sumner 1963 - Ct of A concerned with injury to spectators at sporting event allegedly caused by neg of participant. Ct stated that before volenti became relevant, Def had to be in breach of duty. Standard of care owed by participant to spectator was not to act with reckless disregard for spectator’s safety. Def competing in horse show, took wrong line while galloping around arena and caused Cl to think that he was in horse’s path. Cl fell into horse’s path, while attempting to pull another spectator out of the way, despite temporary lapse of skill and control on Def part, he wasnt negligent. As no tort was committed, volenti wasnt relevant.
• in case of intentional torts, defence is called simply consent. Patient who signs consent form for operation cant sue surgeon, who carried out intended operation for battery. In trespass of land the consent is described as leave and licence given expressly or impliedly to person to enter land or premises.
• in relation to neg defence takes form of assumption of risk. Requires agreement by Cl:
  . To accept the risk
  . with knowledge of risk
  . voluntarily accepted

Question 9

Agreement

Answer 9

• Def must establish that Cl consented to legal risk, that is, risk of being the victim of tort for which there will be no claim at law.
• where contract between parties Def may attempt to exclude liability for neg using term in contract and then argue Cl has agreed to take legal risk upon themselves. May be subject to UCTA 1977 or CRA 2015. Both acts prevent exclusion of liability for death or personal injury arising from neg and make any exclusion of liability of damage to property subject to test of reasonableness or fairness.
• written contract between parties not essential
  -Buckpitt v Oates 1968 - Cl accepted lift in car carrying notice stating that passengers travelled at own risk. Amounted to express agreement - now void under s149 Road Traffic Act 1988.
  -Cts generally reluctant to imply agreement that Cl will accept risk of injury, but there are situations where they may be prepared to do this.
  -ICI v Shatwell 1965 - 2 brothers works for ICI as shotfirers jointly agreed to disobey employer’s orders and stat regulations. Tested detonators without taking required precautions and Cl was injured in explosion. ICI was sued as being vicariously liable for other brother’s breach of stat duty - as defence of volenti would have been available to brother if he was being sued, was available to Def. Ct was prepared to imply agreement from facts.
  -Blake v Galloway 2004 - group of boys playing with bark chippings threw chippings at each other and chip thrown by Def hit Cl in eye. Ct of A found that by participating in game Cl had impliedly consented to risk of a blow to his body, providing the bark was thrown in accordance with tacit understanding about conventions of game.
• Ct reluctant to apply consent when has been passenger accepting lift from drunk driver
  -Dann v Hamilton 1939 - Cl willingly travelled in car driven by driver she knew was drunk, but Ct not prepared to infer she had assumed risk of Def neg - now covered by RTA 1988 as requires those persons using motor vehicles to have insurance and s149 RTA 1988 provides that antecedent agreements or understandings shall not be effective to negate or restrict such cover.
  -Pitt v Hunt 1990 - Ct of A considered claim of pillion passenger seriously injured in accident involving motorbike he was riding. Friend and Cl had been drinking heavily and Cl encouraged driver to ride in reckless fashion. Ct of A satisfied that Cl was volens but stat provision applicable precluded defence being used, so defence of ex turpi causa was used successfully and claim was defeated.
• may seem unfair to refuse to apply defence to passengers who have been reckless to their own safety, Ct are able to redress balance using defence of contrib neg.
• Some situations when compulsory 3rd party insurance provisions dont apply.
  -Morris v Murray 1990 - Cl agreed to be flown in Def’s light airplane piloted by Def, Both men had been drinking heavily, Def crashed plane killing himself and injuring Cl. Defence of volenti was successfully pleaded by Def estate. In Dann Asquith J found passenger hadnt implicitly consented to risk of neg but “may be cases in which drunkenness of driver at material time is so extreme and so glaring that to accept a lift from him is like engaging an intrinsically and obviously dangerous occupation, intermeddling with unexploded bomb or waling on edge of unfenced cliff”. Cant apply to cases re passenger in RTA due to s149 RTA 1988, Ct of A were able to apply it to Cl in Morris

Question 10

Knowledge

Answer 10

-Cl cannot be held to have agreed to accept risk unless they understand risks involved.
- In Canadian case Stermer v Lawson 1977 Def allowed Cl, a young inexperienced driver to borrow motorbike but didnt give any instructions. Was found liable to Cl for injuries sustained when young rider crashed. Cl didnt have sufficient knowledge of the risks involved so defence of consent didnt apply.

Question 11

Voluntariness

Answer 11

• Mere knowledge and acceptance of risk isnt by itself establish defence - risk must be accepted voluntarily.
• Means some categories of Cl where Cts very reluctant to find that Cl has consented, for ex, employees, children and rescuers.
  -Smith v Baker 1891 - Cl was employed by Defs in quarry, he was told to work under crane lifting heaving stones which sometimes fell, one fell and injured him. Volenti had no application to harm sustained from neg of employers. Worker knew of risk of harm to himself that work entailed, the reason he kept working was to keep his job and not because he accepted the risk - apparent consent was not real as he had no choice whether to come to work or not each morning.
• volenti rarely available to employer sued by employee but limited exception created by H of L in facts of ICI v Shatwell. In most workplace accidents employee is seen as having no genuine choice other than to continue working but there are occasional cases where employee deliberately adopts dangerous practice - free choice between different courses of action is essential.
• Cts reluctant to find that rescuer acts voluntarily and volens at risk.
  -Haynes v Harwood 1935 - Cl policeman was injured when horses, neg left unattended, bolted and he attempted to stop them. As bystanders were in danger, it was held policeman had not exercised freedom of choice which was essential for defence of volenti.
  -if no one is in any real danger then volenti is applicable (Cutler v United Dairies 1933). Doesnt only apply to professional rescuers, applies to anyone that attempts a rescue with reasonable chance of success (Chadwick v British Transport Commission 1967)

Question 12

Relationship between contributory negligence and volenti

Answer 12

• facts of case often give rise to possibility of defence of contrib neg, or defence of volenti.
  -Ct only tend to accept defence of volenti in more extreme cases.
• alternative defence of contrib neg allows Ct to take account of any “fault” on part of Cl in much more equitable way by reducing damages rather than rejected claim.
  COMPARE
  CN - apportionment just and equitable basis (s1(1) LR(CN)A 1945)
• Fault on part of both Def and Cl (s4 LR(CN)A 1945)
• Evidence is lack of reasonable care on Cl part for own safety in context of danger created by Def
• Causal link between alleged CN and damage caused to Cl must exist whether CN relates to accident itself, the extent of damage or both.

VOLENTI - total defence if successfully established by Def
- can be express but usually implied consent on Cl part to run specific task created by tort committed by Def.
- evidence of both knowledge of risk posed by Def and willingness to take that risk.
- Actionable wrongdoing on part of Def must be shown

Question 13

Rescue Cases

Answer 13

• where A neg places B in danger and C gets physically injured while attempting or effecting rescue of B, 3 arguments may be relevant - volenti, contrib neg and causation.
• volenti generally not available against rescuer because bona fida rescuer is motivated by desire to assist victim and cannot be said to choose the risk
• Ct reluctant to find that rescuer has been contrib neg because rescuer acts in agony of the moment in dangerous situation created by Def.
• Similar where person who has been rescued is person who is negligent (Baker v Hopkins 1959). In general no one owed duty to anyone else to preserve their own safety, but if by their own carelessness person puts themselves in position of peril of a kind that invites rescue, they would in law be liable for any injury caused to someone who they ought to have seen would attempt to come to their aid. Exception is duty of masters of ships at sea to rescue, if this is possible without serious risk to own ships, persons at danger in sea (s6 Maritime Conventions Act 1911).
  -Baker v Hopkins - Dr B went down well to assist 2 workmen who had suffered carbon monoxide poisoning. All 3 died and successful actions brought against employer of workmen - one workmen 10% contrib neg for going into well without instructions. Duty owed by neg person is owed directly to rescuer and isnt dependent on there being a duty to help person in danger.
• rescuers action may be regarded as break in chain of causation, but as it is foreseeable that if a person is injured someone may attempt to rescue it is unlikely.

Question 14

Illegality or ex turpi causa non oritur actio

Answer 14

• Cts may deny cause of action to Cl who suffers damage while participating in immoral or illegal course - this is principle of ex turpi cause non oritur actio
• underlying justification is public policy - Cts will not assist person who is guilty of illegal conduct, to do so would be affront to public conscience in that it might appear to encourage Cl or others to engage in similar illegal activities
  -Ashton v Turner 1981 - Cl and Def made getaway from robbery in car driven by Def, car crashed and Cl injured. Held no duty of care owed to Cl on grounds of ex turpi causa. Also provided defence in Vellino v Chief Constable of Greater Manchester 2002 where Cl, well known criminal was seriously injured when jumped from window to escape Police.
• not every criminal offence will trigger maxim; must be sufficiently serious.
  -Shadbolt v Stefanatica 2018 - Ct refused to apply doctrine of ex turpa causa where illegality was limited to failure to obtain MOT cert. If speeding driver is involved in accident caused by negligence by another driver, speeding driver unlikely to be met with defence.
• not every action undertaken during a criminal activity will be subject to defence. Must be inextricable link between criminal activity and injury suffered. Character of joint criminal enterprise is such that it is foreseeable that party to enterprise could be subject to unusual or increased risks of harm as consequence of pursuit of those criminal activities (Joyce v O’Brien 2013)
  -Hounga v Allen 2014 - Cl entered UK illegally to work as au pair for Def. Def severely mistreated Cl who initiated no of claims in both contract and for harassment and discrimination. Sup Ct held that illegality defence didnt defeat stat tort of discrimination claim on basis there was not a “sufficiently close connection between illegality and tort to bar the claim”. Ct weighed up range of factors and policy arguments to determine whether allowing claim would run contrary to public policy and felt that to uphold defence of illegality would run contrary to public policy against trafficking which favoured protection of victims.
• very much based on policy considerations and often used by Cts to prevent Cl recovering comp for losses arising from their own criminal activities, even though arguable that Def’s neg was cause of criminality.
  -Clunis v Camden and Islington Health Authority 1998 - Cl alleged that Def had negligently discharged him from hospital that he had been detained for treatment of mental disorder. Once discharged, he killed someone and was convicted on manslaughter on ground of diminished responsibility. Mr Clunis Counsel tried to convince Ct of A that maxim ex turpi causa had no application in tort action and in his clients cause of action didnt depend on proof that he was guilty of manslaughter but Drs should have reasonably foreseen circumstances in which he was likely to commit homicide. Lordships held maxim did provide valid answer to Cl’s claim since central issue related to his own criminal activity.
  -Gray v Thames Trains 2009 - Mr G had been involved in Ladbroke Grove rail crash in 1999 which was caused by admitted neg of Thames Trains, he suffered minor physical injuries but substantial psychiatric damage. Led to change of personality and bouts of anger. 2 years after, he stabbed and killed a pedestrian - he was found guilty of manslaughter on ground of diminished responsibility and sentenced to indefinite detention in hospital.
• Mr G continued to claim for comp of losses caused by crash before killed victim, but added other alleged losses to his claim - loss of earnings while detained, comp for detention itself and his feelings of remorse as well as loss of reputation. Also claimed that he should be indemnified against possible future claims against him by victims dependents. Losses claimed after arrest were suffered as result of his conviction for manslaughter and fell within rule shouldnt benefit from own criminal behaviour.
• also applies to fraud - H of L considered application of principle in unusual situation involving one-man company trading as Stone Rolls Ltd (Moore Stephens (a Firm) v Stone Rolls Ltd 2009) - sole beneficial owner of company X was fraudulently channelling money through co, One defrauded bank sued Stone Rolls Ltd and X to recover losses. Stone Rolls went into liquidation and liquidators sued accountants, Moore Stephens alleging they failed to discover X’s dishonesty. Def admitted had been neg in failing to identify fraudulent activity but argued that illegal actively of X should be attributable to co, Stone Rolls Ltd as well.
• 3 Law Lords said fraud of person who was one man band could be treated by fraud committed by company itself - Stone Rolls not considered victim of X fraud. As result of majority view, accountants escaped responsibility for professional negligence.

Question 15

Illegality (2)

Answer 15

• some commentators argued for reform of law so to lead to apportionment of damages when defence established.
  -Reeves v Commissioner of Police of Metropolis 1999 - prisoner in custody hanged himself in cell. Liability apportioned equally between prisoner and Def using principles of defence of contrib neg. Law Commissioner considered defence of illegality in 2010 but didnt recommend legislative reform re how defence relates to tort cases. Commission took view that Cts developing principles of ex turpi causa in way that is consistent with policy rationales behind defence and apply these to “do justice”.
  -Ct continued to develop principles underlying application of defence.
  -Patel v Mirza 2016 - Sup Ct considered app of illegality defence in connection with claim based on unjust enrichment. Majority held 2 main policy reasons for defence - 1 person shouldnt profit from own wrongdoing, 2 law should be coherent.
• Cts should decide on whether defence should apply to defeat claim on basis of 3 considerations:
  . underlying purpose of law that has been trangressed.
  . impact of denying claim on any other relevant public policy issue
  . whether denying claim would be proportionate response to illegality in question.
• considered this was not right way to develop law in this area as it required the Ct to exercise discretion in each case and make value judgments as to what public interest was vs interest of parties to the case.
• in Lord Sumptions view the “range of factors” approach “converts a legal principle into exercise of judicial discretion in the process of exhibiting all vices of ‘complexity, uncertainty, arbitrariness and lack of transparency’ of present law”.
  -‘range of factors’ approach confirmed by majority decision of Sup Ct in Henderson v Dorset Healthcare Trust 2020 - Cl suffered paranoid schizophrenia and stabbed mother to death while having psychotic episode; pleaded guilty to manslaughter on ground of diminished responsibility and was detained in hospital. Brought claim in neg against Def, seeking damages arises out of death of her mother. Def admitted had been neg in failing to return her to hospital despite her obviously psychotic state but disputed liability for damages claimed on basis of illegality. claim dismissed by lower Ct on basis of illegality.
  -appealed to Sup Ct seeking to distinguish case from Gray, or for Gray to be departed from and Clunis rule overruled on basis that these cases are not compatible with approach in Patel. Sup Ct dismissed appeal; couldnt be distinguished from Gray and decision in Gray not incompatible with flexible approach to illegality defence in Patel. Applying 3 considerations from Patel, led to conclusion that defence did apply on facts, although suffered from diminished responsibility she retained degree of responsibility and would be inconsistent to make her a ‘victim’
  -Stoffel & Co v Grondona 2020 - Cl brought claim against sols for prof neg but Cl was (unknown to sols) engaged in mortgage fraud. Sols neg failed to register lease in Cl name; as result unable to use this to repay debt owed to Mortgage co and brought claim against sols who sought to defend claim on basis of illegality. Trial J found defence of illegality couldnt apply - Def appealed, in Ct of A Ct applied trio of considerations approach in Patel and also found defence failed; particularly important in reasoning was public policy consideration that clients should have effective remedy against neg sols. Sup Ct agreed, key issue was to avoid inconsistencies in law and denying Cl remedy wouldnt deter fraud or protect mortgagees against fraud.
• on other hand, important that clients had effective remedies against neg sols. On basis illegality defence not apply. Sup Ct noted that was necessary to consider 3rd consideration in Patel, applying the defence to prevent Cl recovering comp would be disproportionate as fraud wasnt central to claim, but merely background.