Defences

Question 1

Who must raise and prove defences?

Answer 1

The defendant, on the balance of probabilities.

Question 2

Are defences mutually exclusive?

Answer 2

No it is possible to raise more than one in the same claim.

Question 3

What are the elements fo violent?

Answer 3

Capacity to give valid consent

Knowledge of the risks

Agreement to the risk of injury

Agreement is voluntary

Question 4

What class differs with respect to capacity to give valid consent in volenti?

Answer 4

children / mental health issues

Kirkham v Chief Constable fo Greater Manchester

Reeves v Commissioner of the Police for the Metropolis.

Question 5

Cases on knowledge of the risk in volenti?

Answer 5

Morris v Murray: a subjective test - did the individual claimant have knowledge of the risk? - C had been drinking but not drunk enough not to appreciate the risk.

Question 6

Agreeing to the risk cases?

Answer 6

Nettleship v Weston

Dann v Hamilton

Morris v Murray

Ratcliffe v McConnell

Sacco v Chief Constable of South Wales Constabulary.

Question 7

Nettleship v Weston

Answer 7

knowledge of pupil being a learner driver did not mean the teacher consented to being injured. Especially since he inquired as to her insurance before agreeing to lessons.

Question 8

Dann v Hamilton?

Answer 8

Can only impliedly agree to risk of injury provided the risk is so extreme it is equivalent to ‘meddling with an unexploded bomb’.
On the facts, claimant getting into a car with a drunk driver did not consent as the driver was not drunk enough.

Question 9

Morris v Murray?

Answer 9

Claimant impliedly consented to risk of injury when he got into a plane with a pilot with whom he had drunk 17 whiskeys.

Question 10

Ratcliffe v McConnell?

Sacco v Chief Constable of South Wales Constabulary

Answer 10

drunken student dived into a swimming pool having not checked depth.

17-year-old claimant hit head having jumped from a police van. Drunken state did not negate defence of volenti.

Question 11

Agreement in sports cases?

Answer 11

Hall v Brooklands Auto Racing Club

Smoldon v Whitworth

Condon v Basi

Question 12

Agreement in employment context?

Answer 12

Smith v Charles Baker: worker did not consent to a crane dropping a stone on his head. May consent to risks inherent in on’e’s job but not to injuries due to lack of care.

Question 13

Condon v Basi?

Answer 13

consent failed where a foul tackle resulted in a broken leg. It amounted to a reckless disregard for the claimant’s safety.

Question 14

Smoldon v Whitworth?

Answer 14

Consent failed when scrum collapsed and claimant was injured. Referee was at fault for not enforcing scrum rules.

Question 15

Hall v Brooklands Auto Racing Club?

Answer 15

spectators did not consent to car crashing through railings as the dangers were caused by negligence and not to the normal dangers of the sport.

Question 16

Volenti in employment?

Answer 16

Bowater v Rowley Regis Corp: it is very rare for volenti to succeed in employment contexts.

ICI v Shatwell: volenti succeeded as employer had ensured shot firers were properly trained. They knew the risks of using short wires (equivalent to meddling with an unexploded bomb) and there was no evidence of coercion from the older onto the younger brother.

Question 17

Baker v Hopkins?

Answer 17

Doctor advised not to go down well with poisonous fumes but did so to save others and died. As he was a rescuer volenti did not succeed even though he had capacity to give consent and knew of the risks.
He was acting under a ‘compulsion’ to save people - therefore not voluntary.

Question 18

Horse cases?

Answer 18

Haynes v Harwood: police officer tried to stop a bolting horse

Cutler v United Diaries: similar to above but horse had come to rest and posed no danger so claimant lost their claim.

Question 19

Firemen and agreement?

Answer 19

Ogwo v Taylor: risk inherent in the firemen’s job was not voluntary.

Question 20

UCTA case?

Answer 20

Johnstone v Bloomsbury: junior doctor claimed compensation for damage to health through working long hours. Had contractually agreed to do so (therefore volens was argued) but Court of Appeal suggested such terms, were subject to UCTA.

Question 21

Pitts v Hunt?

Answer 21

Courts are reluctant to say criminals owe a duty to one another. No liability found and therefore no need for ex turnip when claimant rode pillion with defendant who was drunk and uninsured.

Question 22

Vellino v Chief Constable of Greater Manchester?

Answer 22

Claim of a serial offender who had jumped from his window to evade arrest failed. Court would not recognise police as being under a duty to prevent the injury of someone they were arresting.

Question 23

Ashton v Turner?

Answer 23

Ex Turpi

compensation denied to a passenger injured by his getaway driver as they had been involved in a burglary

Question 24

For ex turpi to succeed what must the behaviour be like?

Answer 24

Sufficiently serious

Marsh v Pauline clare : corruption and handling of stolen cars

Nayyar v Denton Wilde Sapte: payment of a civil law bribe was not a crime but morally reprehensible.

Kirkham v Chief Constable of Greater Manchester
Reeves v Commissioner of Police of the Metropolis

Question 25

Cases on the claimant’s activity being causally related to loss?

Answer 25

Sacco v Chief Constable of South Wales

Beaumont v Ferrer

Delaney v Pickett

Question 26

Delaney v Pickett?

Answer 26

D and C involved with possession and intent to supply cannabis but cause of loss was negligent driving

Question 27

Beaumont v Ferrer?

Answer 27

ex turpi appropriate as cause of boy being injured when taxi accelerated after their friends jumped put having not paid. He had jumped out and landed on his head.

Question 28

Gray v Thames Trains?

Answer 28

Claimant contracted PTSD after a train crash. Personality changes caused him to stab a stranger. He tried to claim loss of income after being sent to a mental institute. Was held to be against public conscience to allow loss of earnings to be claimed for their own criminal acts.

Question 29

Why is contributory negligence particularly useful?

Answer 29

an alternative to finding that the claimant’s actions break the chain of causation. (e.g. Reeves v Commissioner of the Police for the Metropolis reduction of 50%).

Question 30

what is the test for n and what cases sets it out?

Answer 30

1. did the claimant fail to take reasonable care of themselves
2. did the failure contribute to their loss.
3. was the injury within the type of risk run by the claimant

Jones v Livox

Question 31

The claimant failed to take reasonable care fo themselves cases?

Answer 31

From v Butcher : not compulsory to wear seatbelt but safer to do so.

O’Connell v Jackson : motorcyclist not wearing helmet.

Jones v Livox : lift on back fo a forklift truck.

Question 32

Causal link in CN cases?

Answer 32

Stapley v Gypsum Mines: don’t get too technical, use common sense.

From v Butcher: setabelt %s = 25 if avoided injury, 15 if reduced, 0 if no effect.

Jones v Livox : claimant out himself at risk knowing he could fall.

Question 33

What are the special situations to consider for the type of injury must be within the type of risk run by the claimant?

Answer 33

Children

Emergencies

Question 34

Children cases?

Answer 34

Gough v Thorner: 13 year old got mowed down by a car –> less cautious fo risk as a 13-year-old.

Jackson v Murray : no automatic bar to reducing damages,. 13 year old ran out from behind a bus –> 50% reduction in damages.

Question 35

emergency cases?

Answer 35

Sayers v Harlow

Jones v Boyce

Harrison v BRB

Question 36

Sayers v Harlow?

Answer 36

woman trapped in a public loo fell and injured herself trying to climb out on a loo roll dispenser. Even in an emergency a little foolish so damages reduced by 25%

Question 37

Jones v Boyce?

Answer 37

Passenger on top of a coach which he believed was a bout to tip over, jumped off and broke his leg. As an emergency did not have time to assess all the risks.

Question 38

Harrison v BRB?

Answer 38

rescuers are generally protected unless they negligently helped create the emergency situation (as happened here).