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Defences Flashcards

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1
Q

What does volenti non fit injuria mean?

A
  • “To a willing person, injury is not done”
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2
Q

What must a defendant prove to use volenti successfully? Is it a complete defence? Is knowledge of risk conclusive? What about consent given under pressure?

A
  • Defendant must prove that the claimant had knowledge of the risk and willingly consented to accept that risk
  • Complete defence
  • It MAY be evidence of consent but won’t be conclusive
  • Consent given under pressure will not amount to a defence
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3
Q

Give three cases where the defence of volenti was used

A
  • Smith v Baker (1891)
  • Imperial Chemical Industries v Shatwell (1965)
  • Kirkham v Chief Constable of Greater Manchester (1990)
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4
Q

What happened in Smith v Baker (1891)? What did the defence say? What was held?

A
  • Claimant worked in a quarry, told his boss that he was uncomfortable with the risky working conditions and then was later injured by falling debris from a crane
  • Defence said volenti - the claimant had turned up to work every day and therefore was content to work in a dangerous job
  • HELD - the claimant had not consented to work in a job where the employer was not maintaining the required standard of care and in the claimant’s case he was pretty much obliged to work in the quarry as he had no other options
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5
Q

What happened in Industrial Chemical Industries v Shatwell (1965)? What was held?

A
  • Two claimants disobeyed their employer’s instructions and tested an electric circuit with insufficient wiring, causing them to sustain injuries
  • HELD - claimants were engaged in an activity of their own choosing, against the wishes of the employer so volenti worked as a defence
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6
Q

What happened in Kirkham v Chief Constable of Greater Manchester (1990)? Held?

A
  • Mr Kirkham had made two suicide attempts
  • Police failed to tell the prison that he was a suicide risk
  • He committed suicide in the cell
  • HELD - volenti no defence as Mr Kirkham was not of sound mind
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7
Q

Explain the effect of disclaimers and exclusion clauses on tortious acts. Do exclusion clauses provide a defence? Provided what? However? According to what Act? Although? What relationship would this not be allowed for? Why?

A
  • Exclusion clauses in contract can offer complete defences
  • Provided that the claimant was made fully aware of the contents
  • However, liability cannot be excluded in a contract between consumers
  • The Unfair Contract Terms Act 1977
  • Although such a clause may work between businesses
  • Not between a business and a consumer
  • The courts would see this as an inequality of bargaining power
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8
Q

What effect has the Road Traffic Act 1988 had on volenti? Example case?

A
  • A driver of a car cannot say that a passenger gets into their car entirely at their own risk and use volenti as a defence for any injury
  • Pitts v Hunt (1991)
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9
Q

What happened in Pitts v Hunt (1991)? What was held? What defence succeeded?

A
  • Claimant was a passenger on a motorbike being ridden by the defendant. The defendant was drunk and the claimant knew this, encouraging him to drive recklessly
  • HELD - because of the Road Traffic Act 1988 volenti was not available as a defence
  • Defence of illegality more appropriate and succeeded
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10
Q

What happened in Morris v Murray (1990)? What was held? What was held on appeal?

A
  • Drunk defendant and claimant decided to fly the defendant’s plane. It crashed, killing the defendant and injuring the claimant
  • Trial judge awarded damages
  • On appeal the CoA accepted volenti and overturned the decision
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11
Q

Give four cases where volenti was used in the context of sporting activities

A
  • Simms v Leigh RFC (1969)
  • Wooldridge v Sumner (1962)
  • Smoldon v Whitworth (1996)
  • Blake v Galloway (2004)
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12
Q

What happened in Simms v Leigh RFC (1969)? What was held? Was the club liable?

A
  • Claimant tackled opponent and momentum carried him into a wall, breaking his leg
  • HELD - a duty of care was owed but the tackle was within the rules of the game
  • Volenti applied so club not liable
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13
Q

What happened in Wooldridge v Sumner (1962)? What was held?

A
  • Photographer hit by horse at horse show

- HELD - volenti - the claimant had chosen to position himself close to risk such errors (made by rider) affecting him

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14
Q

What happened in Smoldon v Whitworth (1996)? Held? Why?

A
  • Referee allowed a scrum to collapse, which caused the claimant to suffer neck injuries
  • Volenti raised as a defence but dismissed so defendant liable
  • Claimant had consented to the risk of playing but not to having a negligent referee
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15
Q

What happened in Blake v Galloway (2004)? What was held? Why?

A
  • Two 15 year olds were throwing bark at each other
  • One got hit in the eye
  • The game was throwing bark, which is exactly what caused the injury so there was no departure from the game and volenti offered a defence
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16
Q

Are the courts eager to accept volenti as a defence? Why?

A
  • In practice they are often reluctant

- Volenti is a complete defence

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17
Q

The courts have been reluctant to accept a defence of volenti since what Act? Preferring to do what? Why?

A
  • The Law Reform (Contributory Negligence) Act 1945
  • Preferring to apportion loss between the parties
  • Approaching loss on the basis of contributory negligence is seen as a more fair approach
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18
Q

What does contributory negligence do?

A
  • Reduces the damages payable by the defendant according to the extent to which the claimant’s own carelessness contributed to their injuries
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19
Q

Is contributory negligence a limited defence in terms of availability of use?

A
  • No, it is a defence that can be used for a wide range of torts
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20
Q

What used to happen if a person was even partly responsible for the harm done to them? Was this deemed fair? What happened as a result?

A
  • They could not recover anything in tort
  • This was deemed unfair
  • Parliament passed the Law Reform (Contributory Negligence) Act 1945
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21
Q

What does the Law Reform (Contributory Negligence) Act 1945 say?

A
  • That a claim in which the claimant is somewhat responsible for the act which caused their injuries, the claim need not fail, but the damages should be reduced to reflect the liability of the claimant
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22
Q

What two things must be proved in order for a defence of contributory negligence to succeed?

A
  • The claimant failed to take care of their own safety in a way that at least partially caused their injuries
  • The claimant failed to recognise that they were risking their own safety even though the reasonable person would
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23
Q

What was held in Baker v Willoughby (1969)?

A
  • On appeal gunshot wound held by the CoA to be an intervening act and the claimant was found 50% responsible for the first injury as he had failed to get out of the way (had plenty of time to do so)
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24
Q

Give two examples of issues that would suggest contributory negligence

A
  • The lack of a seatbelt in RTAs

- Pedestrians not using a crossing that was nearby and getting hit by a vehicle

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25
Q

What did Spearman v RUH Trust (2017) Highlight?

A
  • Highlighted the need for claimants in negligence (Occupiers Liability 1957) to objectively show the kind of care that the average man in the street would
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26
Q

What happened in Spearman v RUH Trust (2017)? What was held? Why?

A
  • Spearman admitted to hospital in hypoglycemic state, wandered through an unlocked and unmarked door and fell off the roof, injuring himself
  • Claimant not contributorily negligent
  • He wasn’t in a state of mind that would allow him to appreciate the danger
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27
Q

What happened in Badger v MOD (2006)? Held? Why?

A
  • Claimant had contracted lung cancer as a result of exposure to asbestos at work and died. Widow claimed against employer
  • High Court awarded damages but reduced them by 20%
  • He had made his condition worse by smoking even though the health risks of smoking were widely known
28
Q

What happened in Blackmore v Department of Communities and Local Government (2017)? Held? Why?

A
  • Heavy smoker worked with asbestos and contracted lung cancer
    HELD - claimant 30% liable on a contributory negligence basis
  • The dangers of smoking were apparent but the court felt that this was overweighed by the dangers posed to workers handling asbestos
29
Q

What are the limits on contributory negligence? (3)

A
  • Courts have recognised that children are less likely to recognise risky conduct than adults
  • The standard of care for a rescuer is that of a reasonable rescuer rather than that of a reasonable person
  • In an emergency situation, the courts have accepted a person may not have the time to take the best course of action
30
Q

What is the limit on volenti in regard to rescuers?

A
  • The courts take the view that members of the public trying to help should not be penalised by the defence
31
Q

Give three cases that concern the use of volenti in regard to rescuers/helpers

A
  • Haynes v Harwood (1935)
  • Chadwick v BRB (1967)
  • Cutler v United Dairies (1933)
32
Q

What happened in Haynes v Harwood (1935)? What was held?

A
  • Policeman tried to control two bolting horses in order to save two members of the public
  • HELD - he was acting in his statutory duty and could not be said to have voluntarily accepted the risk of being injured (volenti didn’t work)
33
Q

What happened in Chadwick v BRB (1967)? What was the issue? What was held?

A
  • Claimant suffered severe psychiatric damage after helping when a train crashed
  • ISSUE - should volenti apply to rescuers?
  • HELD - volenti does not apply on public policy grounds as it would mean penalising people who risk their safety to help others
34
Q

What happened in Cutler v United Dairies (1933)? What was held?

A
  • Claimant tried to stop runaway horses that had run into a field and was injured
  • Volenti operated - there was no danger to anyone and he accepted the risk by getting involved
35
Q

Give four cases concerning children and contributory negligence

A
  • Goughs v Thorns (1966)
  • Morales v Eccleston (1991)
  • Yachuk v Oliver Blais Co Ltd (1949)
  • Evans v Souls Garage (2001)
36
Q

What happened in Goughs v Thorns (1966)? What was held? Why? What did Denning say?

A
  • Lorry driver stopped and signaled 13 year old to cross
  • Overtaking lorry killed her
  • HELD - taking account of her age, she had not fallen below the expected standards of care so was not contributorily negligent
  • Denning said a child should only be found contributorily negligent if they are at an age where they could reasonably be expected to take precautions for their own safety
37
Q

What happened in Morales v Eccleston (1991) Held? Why? Appeal?

A
  • Eccleston ran over an 11 year old who followed a football into the road without looking
  • HELD - Eccleston should’ve seen him (road dry + visibility good) and so held to be 80% to blame
  • On appeal - held that the child was contributorily negligent 75% as he ran into the road without looking
38
Q

What was held in Yachuk v Oliver Blais Co Ltd (1949)? Why?

A
  • 9 year old boy deemed not contributorily negligent when he was sold and played with gasoline, burning himself
  • At his age, he could not have been expected to know of the dangers
39
Q

What was held in Evans v Souls Garage (2001)? Why? What is the rule?

A
  • 13 year old boy deemed 1/3 contributorily negligent when he was sold and played with gasoline
  • He was deemed to have known of the dangers
  • RULE - children must be adjudged to know of risk and dangers in order to be contributorily negligent
40
Q

Give two cases concerning the standard of care required of claimants in emergency situations

A
  • Baker v TE Hopkins & Sons (1959)

- Jones v Boyce (1816)

41
Q

What happened in Baker v TE Hopkins & Sons (1959)? What did the defence say? What was held? Why?

A
  • 2 men employed to clean a well but told not to go down there yet because of fumes - they didn’t listen
  • Dr tried to rescue them but all died
  • Defendant said that the doctor going down the well was an intervening act and sought volenti as defence
  • HELD - no intervening act and no volenti. It was foreseeable that the Dr would try to help and his actions were not unreasonable
42
Q

What happened in Jones v Boyce (1816)? What was held? Why?

A
  • Claimant riding on top of defendant’s coach when the reins broke and it looked like it was going to topple over
  • He jumped and broke his leg and the coach didn’t topple
  • HELD - no contributory negligence as he had acted reasonably
43
Q

What happened in Reeves v Metropolitan Police Commissioner (1999)? What was held? Why?

A
  • Man on suicide watch committed suicide
  • HELD - defendant liable (literally on suicide watch) but Lynch held 50% contributorily negligent as he was of sound mind
44
Q

If there was no avoiding the accident and the losses would have been just the same then the defence of contributory negligence will not help the defendant. Give a case that illustrates this

A
  • Smith v Finch (2009)
45
Q

What happened in Smith v Finch (2009)? Held?

A
  • In a collision with a motorbike the claimant suffered serious injury to the back of his head
  • Agreed on the facts that normal cycling helmets would not have protected this area, hence there was no contributory negligence for not wearing one
46
Q

What are the two factors taken into account in apportioning blame?

A
  • Causation - the extent to which the defendant’s own actions caused their own injuries
  • Culpability - the relative blameworthiness of the claimant and defendant for the claimant’s injuries
47
Q

What happened in Stapley v Gypsum Mines Ltd (1953)? What was the action brought for? Held?

A
  • Mr Stapely killed in mining accident while acting against employer’s orders
  • Mr Dale had briefly left that part of the mine and was uninjured so Mrs Stapely brought an action against the employer for breach of statutory duty in relation to the actions of Mr Dale
  • Trial judge found for claimant but reduced damages by 50% for contributory negligence and then by 80% on appeal
48
Q

In what case did the CoA suggest reductions in damages awarded to claimants in car accidents who failed to wear a seatbelt? What are they? (3)

A
  • Froom v Butcher (1976)
  • If the claimant’s injuries would have been avoided altogether if they wore a seatbelt: 25% reduction
  • If the claimant would have received less serious injuries: 15% reduction
  • If the injuries would have been the same regardless: No reduction
49
Q

What happened in McHugh v Okai-Koi (2017)? Held?

A
  • McHugh jumped on Okai’s bonnet
  • When def braked claimant fell, hit head and died
  • Liability apportioned 25/75 in favour of claimant as Okai shouldn’t have driven with claimant on bonnet
50
Q

What was held in Badger v MOD (2005)?

A
  • Contributory negligence assessed at 20% to reflect when the claimant would have had no excuse to not be informed of the risk of smoking
51
Q

What happened in Jackson v Murray (2015)? Held?

A
  • 13 year old girl hit by car at night

- originally held 90% contributorily negligent but 50% on appeal

52
Q

What does ex turpi mean?

A
  • No action arises from a dishonourable claim
53
Q

Why will claims arising out of criminal activity be invalid on public policy grounds?

A
  • People do not want to see crimes awarded
54
Q

What happened in Ashton v Turner? What was held?

A
  • Two burglars trying to escape in defendant’s car (crashed)

- HELD - claimant cannot sue because ex turpi

55
Q

What happened in NCB v England (1954)? What was held?

A
  • Injury caused by negligent claimant was not illegal so could still claim, but because of contributory negligence held 25% accountable
56
Q

What was held in Delaney v Pickett (2011)?

A
  • Claimant’s possession of cannabis was merely incidental and so the claim was allowed
57
Q

What happened in Joyce v O’Brien (2014)? Held?

A
  • Claimant fell off van while trying to keep stolen ladders from falling out
  • HELD - ex turpi
58
Q

What happened in Vellino v CC of Greater Manchester (2001)? Held?

A
  • Claimant tried to sue for injuries sustained while running from the police
  • HELD - nope. Illegal so ex turpi
59
Q

What was held in Revil v Newberry (1996)?

A
  • Claimant contributorily negligent as their activity was illegal but the defendant was also to blame for taking disproportionate measures to protect his property
60
Q

What was held in Hounga v Allen (2014)?

A
  • It wouldn’t be morally correct to allow defence of ex turpi as the defendant had taken advantage of the claimant’s status as an illegal immigrant
61
Q

What three principles were laid down in Patel v Mirza (2016)?

A
  • In order to tell whether a claim has been tainted by illegality the courts must check:
  • The underlying purpose of the illegality in question
  • Any other aspect of public policy that might be offended if the defence worked
  • Whether the court is acting proportionately in the case by allowing/denying the defence
62
Q

Sometimes people suing in tort whose claim might fail for illegality could succeed if what? Example case?

A
  • If they have a legitimate human rights issue

- Al-Hassan-Daniel v Revenue and Customs Commissioner (2010)

63
Q

In deciding whether illegality should succeed as a defence what should the court look at? (5)

A
  • Seriousness of illegality
  • Claimant’s knowledge and intent
  • Would denying the claim be a deterrent?
  • Would denying claim be fair or proportionate?
  • The link between the illegal act and the facts that gave rise to the claim
64
Q

Give a case that concerns statutory authority as a defence in tort

A
  • X v Bedfordshire CC (1996)
65
Q

What was held in X v Bedfordshire CC (1996)?

A
  • Statutory authority works unless defendant acted unreasonably
66
Q

What three defences do not apply in negligence?

A
  • Necessity
  • Mistake
  • Inevitable Accidents

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