Defences

Question 1

What are the three defences?

Answer 1

Consent
Contributory negligence
Illegality

Question 2

What is consent known as?

Answer 2

Volenti non fit unjuria

Question 3

When is consent an applicable defence and what must the defendant show?

Answer 3

Where the claimant has consented to the risk/s and therefore cannot complain of consequential damage.
Must show that C:
1. Had capacity to give valid consent to the risks
2. Agreed to the risk of injury
3. Had full knowledge of the nature and extent of the risks
4. Agreed voluntarily

Question 4

Is consent a complete defence?

Answer 4

Yes

Question 5

Case example for consent?

Answer 5

Reeves - HoL said D could not use consent as a defence

Question 6

Will general knowledge suffice for the ‘knowledge of nature and extent of risks’ defence?

Answer 6

No - it has to be full knowledge

Question 7

Case examples for ‘had full knowledge of the nature and extent of the risks’ defence?

Answer 7

Morris v Murray [1991]
- C accepted lift with drunken pilt. C also drunk. C not so drunk as to be incapable of understanding nature and extent of the risk. Embarked knowing D was drunk and likely to be negligent.
Stermer v Lawson [1977]
- D lent C motorbike without sufficient instructions - C inexperienced so D could not establish consent as C unaware of dangers.

Question 8

May agreement to the risk of injury be express or implied?

Answer 8

Yes - it can be either or

Question 9

Is knowledge of the risk alone the same as consenting to it?

Answer 9

No - see Dann v Hamilton [1939] - C was passenger who knew driver was drunk. Defence of consent failed - knowing of risk does not amount to consent.
See also Nettleship v Weston [1971]: C driving instructor who sued pupil. Asked about insurance; C had not consented to risk of injury - wanted to ensure he could obtain compensation if pupil were negligent.

Question 10

What sort of conduct would indicate implied agreement?

Answer 10

Morris v Murray: ‘meddling with an unexploded bomb’ (drunken pilot): implied agreement to run risk of injury.
See also: Murray v Harringay [1951] (hockey puck) and Poppleton v Trustees of the Portsmouth Youth Activities Committee [2008] (climbing wall).

Question 11

What’s meant by agreed voluntarily?

Answer 11

he claimant decided to subject themselves to the risk free of any constraint: Bowater v Rowley Regis Corporation [1944]

Question 12

In an employment scenario, are employees who know of the risks of their job voluntarily running those risks?

Answer 12

No - they may have little real option if they wish to keep their job (Smith v Charles Baker & Sons [1891]).
However; does not mean employees never held to have consented to risks - ICI v Shatwell [1965].

Question 13

What’s the situation of voluntarily agreeing to risks in the context of rescue cases?

Answer 13

Baker v T.E. Hopkins & Sons Ltd [1959]: doctor rescues workmen trapped down mine.
Whilst he agreed to risk, not voluntarily. Acted out of impulsive desire to save life.

Question 14

Limits on consent (by statute)?

Answer 14

S 149 of the Road Traffic Act 1988: prevents use of consent used on passenger/motorist claims
Unfair Contract Terms Act 1977 (UCTA) and Consumer Rights Act 2015 (CRA): s65(1) and (2).
- Also s 2 - course of business.

Question 15

What’s the most commonly raised defence?

Answer 15

Contributory negligence

Question 16

Is contributory negligence a complete defence?

Answer 16

No - partial

Question 17

Where’s the basis of contributory negligence found?

Answer 17

s 1 Law Reform (Contributory Negligence) Act 1945 - provides that if a person suffers damage partly through their own fault and partly through the fault of another, their damages are to be reduced by such percentage as the court considers just and equitable.

Question 18

As per s 1 (1) Law Reform (Contributory Negligence) Act 1945, what needed for a finding of contributory negligence?

Answer 18

(a) The claimant failed to take reasonable steps for their own safety; and
(b) This failure contributed to the claimant’s damage.

Question 19

Three case law examples for claimants failing to take reasonable steps for their own safety?

Answer 19

Davies v Swan Motor Co [1949] - C standing on steps of lorry rather than inside it.
Owens v Brimmell [1977] - passenger knew driver had consumed excessive alcohol/went drinking with driver.
Sayers v Harlow UDC [1958] - C got stuck in D’s toilet cubicle - tried to escape, fell and got injured. Damages reduced by 25%.

Question 20

Special considerations for Cs failing to take reasonable steps for their own safety?

Answer 20

1. ‘Dilemma principle’ or emergencies (Jones v Boyce (1816)).
2. Age of claimant (children) (Gough v Thorne [1966] or Gannon v Rotherham MBC (1991)).
3. Rescuers (generally protected from contributory negligence - but see - Harrison v BRB [1981] negligently helped create emergency in first place).
4. Nature of duty (St George v Home Office [2008] - claimant prisoner fell out of top bunk bed during seizure caused by withdrawal from drugs).

Question 21

Would a failure to wear a seatbelt be contributory negligent if the seat belt would have reduced/avoided injury?

Answer 21

Yes - Froom v Butcher [1976] even though failing to wear a seat belt does not cause the accident - same applies to helmet

Question 22

How does the court decide the deduction which is made?

Answer 22

court has a DISCRETION on how great a reduction to make. The claimant’s degree of culpability will generally be expressed in percentage terms.
court looks at what is just and equitable in all the circumstances of the case and will be likely to order a greater reduction if the claimant has contributed to the accident as well as his injury.
Froom v Butcher [1976] QB 286, Lord Denning suggested a reduction of 25 per cent if the wearing of the seat belt would have avoided injury,15 per cent if it would have reduced it and 0% if it would have made no difference. - these vary dependant

Question 23

What’s the general rude when it comes to consent and contributory negligence together?

Answer 23

As a general rule, where courts are unwilling to apply the defence of consent, they apply the defence of contributory negligence.

• As consent is full defence and contributory negligence is partial, court will often choose contributory negligence due to policy reasons.
• See Reeves (damages reduced 50%)

Question 24

Any way of saying illegality?

Answer 24

ex turpi causa non oritur actio - ‘no action may be based on an illegal cause’
Essentially: ‘can the courts impose criminal penalty with one hand, but award compensation with the other?’

Question 25

Illegality case re. manslaughter?

Answer 25

Clunis v Camden and Islington Health Authority [1998].

Question 26

Judges have struggled with deciding when defence of illegality is relevant - what’s the suggested two step approach?

Answer 26

1. has the claimant committed an illegal (or possibly grossly immoral) act?
2. apply the test in Patel v Mirza - take into account earlier decisions which turn on similar facts

Question 27

What’s the Patel v Mirza [2016] test?

Answer 27

In assessing whether the public interest would be harmed in that way, it is necessary
a) to consider the underlying purpose of the prohibition which has been transgressed and whether that purpose will be enhanced by denial of the claim
b) to consider any other relevant public policy on which the denial of the claim may have an impact and
c) to consider whether denial of the claim would be a proportionate response to the illegality, bearing in mind that punishment is a matter for the criminal courts.
LORD TOULSON

Question 28

What do you need to consider under (c) of the Patel v Mirza test (i.e. whether denial of claim would be proportionate response to illegality…)?

Answer 28

• “the seriousness of the conduct, its centrality to the contract [in tort cases, presumably one considers its centrality to the tort], whether it was intentional and whether there was marked disparity in the parties’ respective culpability”.

Question 29

Cases decided before Patel will not generally have taken this approach: three examples?

Answer 29

Delaney v Pickett [2011] - C injured in driving accident; found to be carrying cannabis; illegality defence failed as injury not caused by illegal act.
Pitts v Hunt [1991]: both C and D heavily intoxicated: joint illegality made it impossible to apply a standard of care - illegality would have been satisfied as injury caused by illegal act.
Consider CENTRALITY of illegal act to the claim.
Hounga v Allen [2014]: C entered UK illegally, worked as UK for D. C was abused by D; D raised defence of illegality, this failed as closeness of illegality and tort failed - no connection.