Defences

Question 1

Volenti non fit injuria

Answer 1

No harm can be done to one who consents

Requirements:

1. Must have agreed to the risk: this can be express/implied (c.f. Nettleship v Weston)
2. Must have had full knowledge of the nature and extent of the risk (Morris v Murray)
3. Must have made a voluntary decision - their consent must have been freely given.

Question 2

ICI v Shatwell [1965] HL

Answer 2

Held: Where two fellow employees combine to disobey an order deliberately, and they know the risk involved and are hurt, volenti non fit injuria is a complete defence for their employer in an action by either based on the employer’s vicarious liability for the other’s negligence or breach of statutory duty.

Question 3

Morris v Murray [1991] CA

Answer 3

Held: A passenger who knowingly and willingly embarks on a flight with a drunken pilot is barred from obtaining damages by the defence of volenti.

Question 4

Reeves v Metropolitan Police Commissioner [2000] HL

Answer 4

Held: The defence of volenti non fit injuria was inappropriate in the present case. A prisoner whose suicidal tendency arises from his detention cannot be said to have consented to the risk of harm created by the detention.

However damages were reduced by 50% for contributory negligence: the deceased had responsibility for his own life and since his intentional act while he was of sound mind was a substantial cause of his death, the defence of contributory negligence succeeded.

Question 5

s. 2(1) UCTA 1977

Answer 5

A person cannot by reference to any contract term or to a notice given to persons generally or to particular persons exclude or restrict his liability for death or personal injury resulting from negligence.

Question 6

s. 65(1) CRA 2015

Answer 6

A trader cannot by a term of a consumer contract or by a consumer notice exclude or restrict liability for death or personal injury resulting from negligence.

Question 7

Contributory Negligence

Answer 7

s.1(1) LR(CN)A 1945

3 requirements:

1. C must have been negligent (Hones v Livox Quarries)
2. C’s actions must have contributed to teh damage suffered (Froom v Butcher)
3. If the first two points have been met, the court will consider the extent to which it should reduce the claimant’s damages.
   
   • When calculating the reduction, the court may take into account the claimant’s age. (Jackson v Murray)

Note: this defence is not available for assault or battery (Co-operative Group (CWS) Ltd v Pritchard)

Question 8

Jackson v Murray [2015] UKSC 5

Answer 8

Held: The Inner House’s finding that a school child was contributorily negligent to an extent of 70% in a driver-pedestrian crash was overruled and replaced with a value of 50% because there was no reasonable reason to conclude that the cliamant was more responsible for the crash than the defendant driver.

Obiter dicta

• Difference between a qualitiative and quantitative assessment of blame/ reduction. Purely quantative appeals are not allowed ( Court won’t change a reduction of 20% to a reduction of 40%), howeever quantitative appeals are allowed (court are willing to change a reduction of 40% to a reduction of 60%).

Question 9

Jones v Livox Quarries [1952] CA

Answer 9

Held: A claimant who had disobeyed orders by riding on the back of a traxcavator was 1/5 contributorily negligent for injuries he suffered when a dump truck crashed into the back of teh traxcavator.

Lord Denning MR: “Just as actionable negligence requires the foreseeability of harm to others, so contributory negligence requires the foreseeability of harm to oneself. A person is guilty of contributory negligence if he ought reasonably to have foreseen that, if he did not act as a reasonable, prudent man, he might be hurt himself: and in his reckonings he must take into account the possibility of others being careless.”

Question 10

Froom v Butcher [1976] CA

Answer 10

Held: Where injuries resulting from a road accident would have been prevented or lessened if a fitted seat belt had been worn, the failure to wear a seat belt amounts to contributory negligence on the part of the plaintiff and damages awarded should therefore be reduced.

Lord Denning: “is guilty of contributory negligence if he ought reasonably to have foreseen that, if he did not act as a reasonable prudent man, he might be hurt himself”. The question here is not the cause of the accident but the cause of the damage. He says that here the damage was 20% “caused” by the failure to wear a seat belt and “If the plaintiff was to blame in not wearing a seat belt, the damage is in part the result of his own fault”. NB He is not drawing any distinctions between blame, fault and causation. He is right to refrain from doing so, since it leads to massive confusion- see Reeves.

The injured party has a duty to lessen or mitigate the damages and therefore, if he fails to do so, he must take some share of the responsibility for the accident.

Question 11

Co-operative Group (CWS) Ltd v Pritchard [2011] CA

Answer 11

Held: Where a claimant sued a defendant for damages for the torts of assault and battery, as a matter of law, the defendant could not assert that there was contributory negligence on the part of the claimant such that any damages awarded might be reduced under the Law Reform (Contributory Negligence) Act 1945.

Question 12

St George v Home Office [2008] CA

Answer 12

Held: A prisoner who fell out of a top bunk bed while suffering a withdrawal seizure, thereby sustaining a head injury that resulted in brain damage, should not have his damages reduced for contributory negligence. Although he was at “fault”, within the meaning of the Law Reform (Contributory Negligence) Act 1945 s.1(1) , in becoming addicted to drugs and alcohol in his mid-teens, the addiction was not a potent cause of the injury.

• If S’s injury had been partly the result of his fault in becoming addicted to drugs and alcohol, it would not have been just and equitable to reduce his damages having regard to his share in the responsibility for his injuries. He had told prison staff about his addiction and previous seizures. The staff knew or ought to have known that he might suffer from withdrawal seizures, yet they placed him in a top bunk. S’s position was analogous to that of a patient admitted to a rehabilitation clinic for the express purpose of being weaned off his addiction to drugs. If the same thing had happened to such a patient, his damages would not be reduced for contributory negligence.

Question 13

Illegality or “ex turpic causa non orirtur action“

Answer 13

No action may be based on an illegal cause

• Provides a complete defense where the claimant’s cause of action arises in connection with the claimants own illegal act.

Question 14

Hall v Herbert [1993] 2 SCR 159

Answer 14

Held: McLachlin J in the Canadian Supreme Court stated the defence of illegality should only apply in very limited circumstances based on the courts’ duty to preserve the integrity of the legal system for example where Claimant is attempting to profit from his illegal act or to circumvent a criminal penalty.

It did not apply here as it was a drunk driving case and the Claimant was not seeking to profit from his illegal conduct or circumventing the criminal law. His damages were, however, reduced by 50% for Contributory Negligence.

Question 15

Revill v Newbury [1996] CA

Answer 15

Held: Claimant was attempting to break in to Defendant’s shed. Defendant shot Claimant. CA decided that Defendant was liable; he could not rely on the illegality defence even though Claimant had been convicted of burglary.

Reasoning

• The illegality defence is underpinned by the principle that “there is a public interest which requires that the wrongdoer should not benefit from his crime.”
• If the court found Claimant as barred by illegality, no trespasser could ever claim — an outcome not envisaged by the Occupiers Liability Act 1984.
• Therefore Modern test is based on causation — the key issue is the extent to which Claimant’s illegal act caused his harm. (as opposed to merely giving occasion for harm to occur)
  
  • See Lord Hoffman in Gray [2009] citing with approval Sir Murray Stuart Smith

Question 16

Gray v Thames Trains [2009] HL

Answer 16

Held: A rule of law that was based on public policy and which was an aspect of the principle of ex turpi causa precluded a person from recovering compensation either for losses suffered in consequence of his own criminal act or for damage that was the consequence of a sentence imposed on him for a criminal act. A claimant who had committed manslaughter as a result of psychological problems caused by the negligence of a third party was therefore precluded from recovering from that third party general damages and loss of earnings flowing from his crime.

Question 17

Delaney v Pickett [2011] CA

Answer 17

Held: The damage suffered by D had not been caused by his, or his and P’s, criminal activity. It had been caused by P’s tortious act in the negligent way in which he drove his car. In those circumstances the illegal acts were incidental, no defence of illegality, meaning D was entitled to recover his loss from P.

Reasoning:

• Claimant was a passenger in Defendant’s car. Defendant crashed, injuring Claimant. They were carrying cannabis in the car and were convicted of PWITS. CA held that Defendant could not rely on the defence, there was no causation. Key test is “Was the injury truly a consequence of Claimant’s unlawful act or was it a consequence of the unlawful act only in the sense that it would not have happened if he had not been committing an unlawful act”. Here, Claimant’s criminal act only “gave occasion” for Defendant’s tort, but the “immediate cause” of Claimant’s injury was Defendant’s driving.

Question 18

Joyce v O’Brien [2013] CA

Answer 18

Held: C and D had engaged in a joint criminal enterpirse and during the getaway C was injured due to D’s negligent driving and therefore sued D for damages. D was able to use the defence of illegality, and was therefore not liable in damages for injuries suffered by C.

Reasoning

• The principle of ex turpi causa was applicable where the character of a joint criminal enterprise was such that it was foreseeable that a party to the enterprise could be subject to unusual or increased risks of harm as a consequence of the pursuit of those criminal activities, as any resulting injury could properly be said to be caused by the claimant’s criminal act even if it resulted from the negligent or intentional act of another party to the illegal enterprise.

Gray [2009] applied

Question 19

Patel v Mirza [2016] UKSC 42

Answer 19

Held: A claimant who satisfied the ordinary requirements of a claim for unjust enrichment should not be debarred from enforcing his claim simply because he was seeking to recover money paid pursuant to a contract to carry out an illegal activity.

Threfore Mr Patel was entitled to sue Mr Mirza for unjust enrichment even though the money given by P to M had been in order to place illegal financial bets based on inisder knowledge.

Reasoning:

• Lord Mansfield said in Holman v Johnson (1775) 1 Cowp 341, 343 that “no court will lend its aid to a man who founds his cause of action upon an immoral or an illegal act” [1]. Behind this maxim, there are two broad policy reasons for the common law doctrine of illegality as a defence to a civil claim. First, a person should not be allowed to profit from his own wrongdoing. Second, the law should be coherent and not self-defeating, condoning illegality by giving with the left hand what it takes with the right hand [99]. The reliance test expressed in Tinsley v Milligan [1994] 1 AC 340 bars the claimant if he/she relies on the illegality in order to bring the claim. This test has been criticised and Tinsley should no longer be followed [110].
• The essential rationale of the illegality doctrine, as explained by the Supreme Court of Canada in Hall v Hebert [1993] 3 RCS 159, is that it would be contrary to the public interest to enforce a claim if to do so would be harmful to the integrity of the legal system.

Question 20

Henderson v Dorset Healthcare University NHS Foundation Trust [2018] CA

Answer 20

Currently on appeal to UKSC

Held: That a woman who was negligently treated by the NHS trust and subsequently went on a psychotic episode where she killed her mother, was barred by the doctrine of illegality for cliaming damages for her loss of liberty costs of therapy, share in her late mother estate, etc.

Reasoning:

• The issue is whether the NHS can avoid paying damages for the foreseeable consequences of their tort – i.e. psychiatric consequences of murdering her mother and her loss of liberty, on the basis that the illegality defence negates their own responsibility because there was no insanity plea under the M’Naghten Rules meaning that legally she must be treated as responsible, despite the findings of the criminal judge that she had no significant responsibility for the crime.