Defences

Question 1

What are the key general defences a defendant may raise in a negligence claim, and how do they impact liability?

Answer 1

The general defences are:

1. Consent (Voluntary Assumption of Risk): A complete defence that eliminates the defendant’s liability entirely if the claimant voluntarily accepted the risk of harm.
2. Contributory Negligence: A partial defence that reduces the claimant’s damages in proportion to their own fault.
3. Illegality (Ex Turpi Causa): A complete defence barring recovery if the claimant’s injury arises directly from illegal activities.

These defences allow courts to either mitigate or entirely reject claims based on the claimant’s conduct or public policy considerations.

Question 2

What are the two essential elements required for the defence of consent (voluntary assumption of risk) to succeed? How are these elements applied in practice?

Answer 2

Elements of Consent:

1. Knowledge of the Risk:
   * The claimant must have full knowledge of the nature and extent of the risk.

• Example: In Dann v Hamilton (1939), the court held that simply knowing the driver was drunk was insufficient to prove that the claimant consented to the risk.

2. Willing Acceptance of the Risk:
   * The claimant must voluntarily accept the risk. Mere knowledge is not enough (“sciens is not volens”).
   * Example: In Morris v Murray (1990), the claimant willingly helped a drunk pilot prepare for a flight, which was deemed implicit acceptance of the risk.

Statutory Note:
Under Section 149 of the Road Traffic Act 1988, the defence of consent cannot apply to motor vehicle passengers where insurance is mandatory.

Question 3

Why is the defence of consent rarely successful in cases involving employees or rescuers? Provide case examples.

Answer 3

1. Employees:
   * Employees often lack genuine freedom to consent because of their obligation to perform assigned tasks.

• Case Example: In Smith v Baker (1891), an employee injured by a crane load was not found to have consented to the risk simply because he continued working despite awareness of the danger.

2. Rescuers:
   * Rescuers act under moral, social, or legal compulsion and are not considered to have willingly accepted the risk.

• Case Example: In Haynes v Harwood (1935), a policeman injured while stopping runaway horses was not found to have consented to the risk, as he acted to protect others.

Question 4

What is contributory negligence, and what two elements must a defendant establish for this defence to apply?

Answer 4

Contributory negligence is a partial defence that reduces damages proportionate to the claimant’s fault.

Elements:
1. Carelessness on the Claimant’s Part: The claimant failed to take reasonable care for their own safety.

2. Causal Connection: The claimant’s carelessness contributed to the harm suffered.

Example:
In Fred and Gavin’s Case, Fred caused an accident by failing to give way, but Gavin’s speeding contributed to his injuries. Gavin’s damages were reduced in proportion to his fau

Question 5

How does contributory negligence impact the damages awarded, and what principles guide courts in assessing reductions

Answer 5

Under Section 1(1) of the Law Reform (Contributory Negligence) Act 1945, damages are reduced based on the claimant’s share of responsibility.

Principles:
1. Culpability: Courts assess the relative blameworthiness of the claimant and defendant.

2. Causation: Courts evaluate how much the claimant’s actions contributed to the harm.

Case Example:
* In Reeves v Metropolitan Police Commissioner (1999), the deceased’s damages were reduced by 50% because his actions (hanging himself while in custody) contributed to the harm.

Question 6

Provide detailed examples of contributory negligence in specific contexts, such as seatbelts, crash helmets, and drunken passengers.

Answer 6

1. Seatbelts:
   
   • In Froom v Butcher, a claimant’s failure to wear a seatbelt contributed to their injuries. Damages were reduced in proportion to the impact of not wearing a seatbelt.
     2. Crash Helmets:
   • In Capps v Miller, a motorcyclist’s head injuries were exacerbated by not wearing a helmet. Damages were reduced similarly to seatbelt cases.
     3. Drunken Passengers:
   • In Owens v Brimmell, passengers injured in an accident involving a drunk driver had their damages reduced, even if they were too intoxicated to appreciate the risk.

Question 7

How do courts assess contributory negligence in specific groups, such as children, rescuers, and employees?

Answer 7

Standards for Specific Groups:
1. Children:
* Courts consider the child’s age and maturity.
* Case Example: In Gough v Thorne (1966), a 13½-year-old girl crossing the road based on a lorry driver’s signal was not found contributorily negligent, as her actions were reasonable for her age.
2. Rescuers:
* Courts judge rescuers based on the “reasonable rescuer” standard, with allowances for emergencies.

• Case Example: In Baker v TE Hopkins & Son Ltd (1959), a doctor who died attempting a rescue was not found contributorily negligent.

3. Employees:
   * Courts consider workplace conditions that may impair vigilance.

• Case Example: In Caswell v Powell Duffryn Associated Collieries Ltd (1940), the repetitive and noisy environment of a mine reduced the care expected of the employee.

Question 8

What is the defence of illegality (ex turpi causa non oritur actio), and when does it apply? Provide case examples.

Answer 8

Illegality bars a claimant from recovering damages if their injury arises directly from their illegal activities, based on public policy.

Requirements for Illegality to Apply:
1. There must be a close connection between the illegal activity and the injury.

2. Allowing recovery would contradict public policy.

Case Examples:
* Ashton v Turner (1981): A claimant injured during a getaway from a burglary was barred from recovery.
* Pitts v Hunt (1990): A passenger encouraging reckless driving as part of joint illegal conduct was denied recovery for injuries.

Contrast:
In Adriana’s Case, where a claimant parked illegally and suffered damage due to another driver’s negligence, the defence of illegality did not apply because the parking offence was unrelated to the injury.

Question 9

How do courts address contributory negligence in “dilemma cases,” where claimants are forced to act in response to danger created by the defendant?

Answer 9

If the claimant acts reasonably in response to imminent danger caused by the defendant’s negligence, they will not be found contributorily negligent.

Case Examples:
1. Jones v Boyce (1814): A passenger who jumped from a negligently driven coach to save himself was not found contributorily negligent because his actions were reasonable in the “agony of the moment.”
2. Sayers v Harlow UDC (1958): A claimant injured while trying to escape a negligently maintained public toilet had her damages reduced by 25% because her actions, while understandable, were partly unreasonable.

Question 10

How does a claimant’s failure to wear a seatbelt affect the likely percentage reduction in damages for contributory negligence?

Answer 10

The likely reduction in damages depends on the extent to which wearing a seatbelt would have mitigated the claimant’s injuries:
1. 25% Reduction:
* If the claimant’s injuries would have been completely avoided had a seatbelt been worn.

2. 15% Reduction:
   * If the claimant’s injuries would have been less severe had a seatbelt been worn.
3. 0% Reduction:
   * If wearing a seatbelt would have made no difference to the severity of the injuries.

Key Case Reference:
* Froom v Butcher: This tariff was established to guide courts in determining reductions for failure to wear a seatbelt.