Defences - illegality

Question 1

what does the claimants and defendants have to show

Answer 1

C:
duty owned
breach of duty/causation
damage and damage is not too remote

D:
They can meet the requirements of any defence e.g. consent on which they seek to rely
Prove on the balance of probabilities that they can meet the relevant requirements

Question 2

illegality general rule

Answer 2

the illegal or wrongful nature of C;s conduct may bar their claim in tort

Holman V Johnson - lord mansfield - no court will lend aid to a man who founds his cause of action upon an immoral/illegal act - if D can show on the balance of probabilities

Question 3

illegality and causation

Answer 3

D must estab a causal connection between claimants wrongful conduct by their own choice and the harm suffered by C - National coal board v England

Question 4

2 conceptions of illegality

Answer 4

public policy consideration - compensating C would be shocking to the public conscience - kirkham v chief constable of greater manchester police

C’s participation in criminality or wrongdoing makes it impossible for judges to specify a standard of care

Question 5

joint illegality activity

Answer 5

pitts v hunt
2 men - 16 and 18 travelling on motorbike, uninsured and 16 year old is unlicensed and being used recklessly - 16 year old driving it and 18 year old encouraging it on ways contrary to criminal law, ends up on wrong side of wrong, collides with other vehicle, 16 year old killed, 18 year old severely injures - 18 year old brings negligence claims against estate of 16 year old - fails as illegality defence accepted

policy based judgement - to compensate C would go against Parls intention of enacting road traffic leg

Question 6

revill v newbury

Answer 6

D = elderly gentlemen who fears his shed is going to be broken into by a burglar - emotional state and determined to do what he can to prevent a burglary - in shed and he is wakened by noise of claimant trying to break shed open, old man takes out shot gun, loads it and fires, harming the claimant - damages awarded to C but reduced by 2/3 on grounds of contributory negligence - in part author of own misfortune

Question 7

Clunis V camden and islington health authority

Answer 7

C = mentally ill and compulsory hospitalised in psych hospital by operation of mental health act 1983 - treated and discharged into the community (isolated life with little psych support in which C;s mental state deteriorates) - takes himself to tube station and plunges knife in unprovoked attack into Z who dies - C = prosecuted, not guilty of murder but manslaughter since C runs diminished responsibility then sues health authority in negligence and health authority pleads illegality - CoA accepts as 2 relevant conditions = satisfied

1 - illegality/ criminality - homicide at stake here
2 - C could presume to know his conduct = wrongful

Question 8

henderson v dorset health university NHS foundation trust

Answer 8

C (paranoid schizophrenic) stabbed her mother to death while living in the community having been previously hospitalised

D made successful use of the defence of illegality - SC declined to depart from the HoLs in Gray and concluded that C should not be overruled and supported
SC applied the approach to the defence of illegality adopted in Patel V Mirza where court identified 3 considerations as relevant when determining whether C should succeed

1 - underlying purpose of the prohibition which has been transgressed
2 - public policies which may be rendered ineffective or less effective by denial of the claim
3 - application of the law with a due sense of proportionality