Defences Flashcards
Latin for voluntary assumption of risk
volenti non fit injuria
What is the defence of volenti
where C consents to risk of harm then suffers harm when risk materialises, he is barred from a claim
(Mere knowledge is not enough)
(NO NEED to prove consent to injury, just that he consents to RISK)
Wooldridge v Summer
horse photographer case
- sort of an opposition to the defence?
- doesn’t look at C’s state of mind
- looks at D’s perceptions not whether C consents (what D ought to know or does know C is aware of/assumed)
ABOUT THE STANDARD OF CARE (D didn’t go beyond what a reasonable person in these circumstances ought to have done)
When does the Defence Apply?
Dann v Hamilton
(Case where men slowly get drunk on a driver including driver)
TWO main situations:
1. Where D created an obvious dangerous situation which C voluntarily chooses to go into
- if C impliedly gives D permission to act a certain way
- mere knowledge is not enough
- awareness is not enough
- HAS TO BE PERMISSION and ACCEPTANCE
ICI v Shatwell
Case with long wires and shot-firers
- volenti defence satisfied
- had training and knew about the risk, so when they didn’t use long wire they were deemed to have impliedly ACCEPTED carelessness
Morris v Murray
(drunk friends on plane flight)
- volenti defence satisfied
- distinguished from Dann v Hamilton because getting on a plane is much more dangerous and extreme and it was less of a gradual drunkeness more a drunken escapade heavily fraught with dangerous activity
- also a bit problematic that if C were more drunk D may not be able to use volenti defence
- seems like an objective test though because look at what C’s conduct shows he accepted
Corr v IBC Vehicles
Acceptance of risk must be truly voluntary
suicide was not, done because of depression meaning he couldn’t weigh things up
Reeves v Metropolitan Police Commisioner
Cannot use volenti defence if D had a special duty that would conflict
- here a measured thought-out suicide isn’t volenti because D has a duty to prevent C harming himself
- looking at nature of duty again
Contributory Negligence pre-1945
Courts had to be really inventive to stop slight CN barring a claim completely
= used “last chance of avoiding damage” test (Dennis v Mann)
= used “constructive last chance” test even (British Colmbia Electric Railway v Loach)
Law Reform (Contributory Negligence) Act 1945
CN not a complete defence, courts can no apportion damages to reflect C’s fault/contribution to own damage
Jones v Livox Quarries
OBJECTIVE TEST FOR CN
- CN is whether C failed to take care that a reasonable, prudent person would take for their own safety
Froom v Butcher
OBJECTIVE test is not based on majority
- what C would do is what REASONABLE person would do
- even though most don’t wear seatbelt, its about the reasonable person (who would wear a safety harness if its available)
Smith v Finch
Same principle as Froom v Butcher - CN is based on what a reasonable person would do
- not tied down by majority
- even though most don’t wear helmets, Courts construct that a reasonable person would
Yachuk v Oliver Blais
Children cannot be expected to exercise any care for their own safety
- No CN can be found against children that age
Gough v Thorn
NO CN because girl was 13.5yr-old
Denning LJ - said young child can never be guilty of CN but older one could be (depends now whether you would say they were to blame for not taking precautions)
Salmon LJ - took a very precise approach of comparing C to a ‘reasonable 13.5 year old girl’
- reached same conclusion but very specific and seems unsensible
Causation for CN
C’s carelessness has to be shown too ave made some difference to the injury that C suffered or CN does not apply
e.g. Smith v Finch - made no difference that C didn’t wear a helmet
Did c’s carelessness really contribute?
Jones v Linox Quarries
Whether what C did was background history or whether it was contribution to the damage
- example of someone accidentally shooting him from the top of the quarry - then what C did isn’t relevant to his injury
St George v Home Office
Drug addict since 16 arrested and suffered head injuries falling from top bunk of prison after being arrested for theft because of withdrawal symptoms
- D admitted liability for putting him on top bunk but argued CN
- NOPE C’s act of being a drug addict was too remote in time, place and circumstance to be deemed to be CN
Causal link is to the DAMAGE not to the accident in CN
Froom v Butcher - C tried to argue that him not wearing a seatbelt didn’t contribute to the crash
Standard Chartered Bank v Pakistan Shipping Co
Only torts that allowed defence of CN pre-1945 can use CN as a defence post-1945
Co-Operative Group v Pritchard
Confirmed Standard Chartered Bank - battery was not a tort you could use CN for before, so you can’t now either
- what about new torts!
Jackson v Murray
APPORTIONMENT IN CN
- cannot arrive at an absolutely precise figure for CN assessments just a rough and ready figure
- but in accidents with motorist and pedestrian, motorist is more at fault because he has more potential to cause damage than pedestrian
Standard Guidelines for CN apportionment?
Denning LJ tried to suggest this in Froom v Butcher
(say 25% for all cases where C didn’t wear a seatbelt)
this was not adopted by later courts
CN apportionment very case by case
St George v Home Office - no reduction because D knew C suffered from drug addiction so D should be fully responsible
Reeves v Commissioner of Police - NO CN in this case, but obiter, HL said balance “different strands of policy” (e.g. public responsibility for people in prison, but C was of sound mind = 50/50)
Corr v IBC Vehicles
- Minority: 0% due to D’s role creating the situation
- Majority: 20% due to some kind of choice albeit distorted
