Defences Flashcards
what are the 3 main defences in negligence?
- illegality (ex turpi causa)
- contributory negligence
- consent (voluntary acceptance of consequence)
what is the ex turpi causa maxim?
the illegal or wrongful nature of C’s conduct may bar their claim in tort
what is the root of the illegality defence? (incl. case)
public policy - ‘no court will lend its aid to a man who founds his cause of action upon an immoral or illegal act (Holman v Johnson, Lord Mansfield)
what is required to run the illegality defence? (incl. case)
National Coal Board v England - D must establish a causal connection between (i) C’s wrongful conduct and (ii) the harm suffered by C
illegality and judicial discretion? (incl. case)
Pitts v Hunt (Dillon LJ) - even though C was engaged in illegal activity which brought about their injury, it does not automatically bring it about that his claim for damages because of D’s negligence must be dismissed
what is the UK conception of the illegality defence? (incl. case)
based on considerations of public policy e.g. compensating C would be ‘shocking to the public conscience’ or send out an undesirable signal to criminals and other wrongdoers (Kirkham v Chief Constable of Greater Manchester Police)
what is the Australian conception of illegality?
C’s participation in criminality or wrongdoing makes it impossible for judges to specify a standard of care (Jackson v Harrison)
HL criticism of the scope of illegality? (incl. case)
- Tinsley v Milligan - HL disapproved the ‘public conscience’/’shock’ test
- Lord Goff: the ‘shock’ test amounts to saying that judges have a discretion to refuse relief
joint illegal activity? (incl. case)
- Pitts v Hunt - no duty of care will be recognised between participants to a joint criminal enterprise if the enterprise is such that it would be impossible or not feasible to ask how much care the reasonable person in D’s position would have taken in the circumstances.
- Beldam LJ: to compensate C would be at odds with Parliament’s intentions in enacting road traffic legislation (policy-based reasoning)
can C sue their own victim? (incl. case)
- Revill v Newsbury - yes
- C tried to break into D’s shed; D used a shotgun to defend himself
- damages awarded to C; sum awarded reduced by 2/3
academic commentary: response to Revill (incl. quote)
- Weir - the authority of the Pitts decision was ‘dismissed’ - it caused an imbalance as C can sue their victim (Revill), but not their accomplice (Pitts)
- ‘Many more decisions like this and the Court of Appeal will forfeit the respect of lawyer and lay[person] alike’
example of a case in which illegality was relied upon successfully
- Clunis v Camden and Islington Health Authority - C was found guilty of manslaughter and sued D in negligence for lack of psychiatric support after being discharged from hospital.
- illegal act (manslaughter) was found and C knew or could be presumed to know that his conduct was wrongful
- policy aspect - deterring criminal acts
principle of consistency? (incl. case)
- Gray v Thames Trains Ltd - illegality defence applied; the civil law must be applied in ways that are consistent with any criminal sentence already imposed
- Canadian case law has identified consistency as the sole justification for the illegality defence (Hall v Hebert)
other than consistency, what are the different justifications for the illegality defence? (incl. case and 2 academics)
- deterrence (Clunis v Camden and Islington Health Authority)
- retribution (‘just deserts’)
- maintaining the integrity of the legal system (Weir)
- outlawry - C is effectively put beyond the law’s protection (Hervey)
the HL on justifications for the illegality defence? (incl. case)
different reasons could be invoked in different circumstances (Lord Hoffmann, Gray v Thames Trains Ltd)
what is ‘turpitude’?
base or shameful’ baseness; vileness; depravity; wickedness
illegality and immorality? (incl 2 cases)
- Nayyar v Denton WIlde Sapte (Hamblen J) - ‘the principle of ex turpi causa can extend to immoral as well as illegal acts and may apply to improper conduct envincing serious moral turpitude’
- Safeway Stores Ltd v Twigger (Flaux J) - the maxim ex turpi causa ‘is not limited to criminal acts’; ‘there must be an element of moral turpitude or moral reprehensibility involved’
academic commentary: illegality and immorality
Gouldkamp - ‘the decisions in Nayyar and Safeway Stores have taken tort law in the wrong direction insofar as the maxim ex turpi causa is concerned’
‘Although the law of tort is not short of rules that suffer from obscurity in both justification and scope, the maxim ex turpi causa stands out as particularly problematic in these respects.’
what are some considerations relevant to the illegality defence? (incl. case)
Patel v Mirza (Lord Toulson):
1. ‘the underlying purpose of the prohibition which has been transgressed’
2. ‘public policies which may be rendered ineffective or less effective by denial of the claim’
3. application of the law with ‘a due sense of proportionality’
cases in which the Patel approach has been used
- Stoffel & Co v Grondona
- Henderson v Dorset Health University NHS Foundation Trust
what was the courts’ decision in Henderson?
- D successfully pleaded illegality
- SC declined to depart from the HL decision in Gray v Thames Trains and concluded that Clunis should not be overruled
academic commentary: illegality in the supreme court
- O’Sullivan - ‘presumably… in a novel case the court will move by incremental analogy from existing precedent, aided by Patel’s trio of considerations’
- although is still sceptical about this approach - ‘does listing considerations for and against, then somehow “weighing” them, actually provide much guidance in related but different fact patterns?’
what is the defence of consent? (incl. case)
Bowater v Rowley Regis Corporation - in order for D to rely on this defence, C must voluntarily agree to run the relevant risk(s)
knowledge in consent defence (incl. 3 cases)
- Woolridge v Sumner - C must have full knowledge of the relevant risks
- Smith v Austin Lifts - test of knowledge is objective
- Dixon v King - constructive knowledge (i.e. what C ought reasonably to have known) is not a sufficient basis on which to invoke the defence
what is the scope of the consent defence? (incl. case and commentary)
- Nettleship v Weston (Denning MR) - ‘[t]he defence of volenti non fit injuria… has been severely limited’
- Markesenis and Deakins - ‘By and large, … courts adhere to the view that in employment cases the defence should be applied “with extreme caution”’
consent and the road traffic act 1988
s.149(3) - invalidates any agreement to restrict a driver’s liability to a passenger where the driver is required to be insured.
case involving the Road Traffic Act 1988
Morris v Murray - intoxication does not render C incapable of appreciating risk and consenting to it
what is vicarious liability?
- form of secondary liability - imposed on one person for the tort of another
- the tortfeasor remains potentially liable
- was there a sufficiently close connection between the tort and the employment relationship?
consent case involving vicarious liability claim
- ICI v Shatwell - the claimant must give consent to the risk freely
- where there is a full knowledge of the risks and deliberate act causing the injury, voluntary assumption of risk rather than contributory negligence is applicable; they apply in distinct situations
- carelessness (contributory negligence) vs deliberate action with awareness of risk (consent/vicarious liability)
consent and sporting activities (incl. 2 cases)
- Gleahorn v Oldham - consent can only be raised where D had acted in accordance with the ordinary rules of the game
- Simms v Leigh Rugby Football Club - rugby league player thrown against wall in the course of a tackle and was held to have assented to run the relevant risk(s)
consent and rescuers
what is contributory negligence? (incl. legislation)
Law Reform (Contributory Negligence) Act 1945, s.1(1) - where C’s ‘damage’ arises partly from his or her own ‘fault’ and partly from D’s ‘fault’, courts are required to apportion responsibility for the losses
- losses should be apportioned on a ‘just and equitable’ basis
how can D run a contributory negligence defence?
- D must establish (i) ‘fault’ on C’s part (applying the reasonable person standard); and (ii) factual and legal causation
- principle of personal responsibility - essentially saying that C failed to take reasonable steps to secure their own safety
what is the scope of a contributory negligence defence?
- partial defence
- Nance v British Columbia Electric Railway Co Ltd - acts as ‘a shield against C’s claim
how is the reasonable person standard to be applied in defences of contributory negligence? (incl. case)
- Stapley v Gypsum Mines Ltd (Lord Asquith) - ‘The question [of contributory negligence] must be determined by applying common sense to the facts of each case’
- this implies strong judicial discretion in these types of cases
- the consequent high levels of uncertainty put risk-averse Cs at a disadvantage
applications of the RPS in case law (4 cases)
- Froom v Butcher - if C, a passenger in a car, fails to wear a seatbelt, D may plead contributory negligence
- Owens v Brimmell - Contributory negligence may be pleaded where a passenger consents to be driven by an intoxicated driver
- Gregory v Kelly - contributory negligence may be pleaded where C drives a vehicle he or she knows to be defective
- Morales v Ecclestone - 11yo child held to be 75% accountable, having run into the road and been struck by D’s car
case in which contributory negligence has failed
Jones v Boyce - held that a reasonable person who truly believed that there was an imminent risk of the carriage crashing would jump off
apportionment of damages in contributory negligence (statute)
The Civil Liability (Contribution) Act 1978 s.1 - damages will reflect each parties’ contribution
sequencing of negligence and contribution (incl. case)
Fitzgerald v Lane - address question of contributory negligence first, then consider contribution
