Defences (rev notes)

Question 1

4 defences to tort claims

Answer 1

• consent = volenti non fit iniuria
• Illegality = ex turpi causa non oritur actio
• Exclusion of liability
• Contributory negligence

Question 2

Volenti - principle

Answer 2

D will not be liable if can show that C accepted consequences of D’s tortious conduct.

=> “a man who freely and voluntarily incurs a risk of which he has full knowledge cannot complain of injury if that risk materialises and causes him damage” (Lord Reid in ICI v Shatwell)

Question 3

Volenti - requirements (3)

Answer 3

• An agreement
• voluntarily made
• with full knowledge of the risk

Question 4

Volenti - complete defence

Answer 4

= if successful, bars C from recovery

=> see eg ICI v Shatwell

Question 5

Volenti - exception

Answer 5

Road Traffic Act 1988, S. 149(3) : where C = passenger suing driver D in negligence, D cannot rely on C’s consent as a defence

Question 6

Volenti - something more than voluntary placing oneself in position where known risk might materialise

Answer 6

= Nettleship v Weston, Dann v Hamilton

Question 7

Volenti - law reluctant to penalise rescuers

Answer 7

Baker v TE Hopkins and Sons Ltd : 2 emp of D endangered by carbon monoxide fumes while working, C doctor tried to rescue them, all 3 died – CA rejected D’s ag that C had accepted risks inherent to rescue : it would be ‘ungratious’ + ‘neither rational nor seemly’ to say to

Question 8

Volenti - sports

Answer 8

Participants in game considered to have consented to the sort of physical impact which is a normal pt of the game => so no tort to consent to as long as standard of care btw players not breached

Question 9

Illegality - principle

Answer 9

A claimant cannot be allowed to recover damages for losses suffered as a consequence of his own illegal act = Gray v Thames Trains

=> /!\ doesn’t mean that someone engaged in some unlawful act will always be prevented from recovering damages in tort for harm done to him by others : C’s illegal conduct must be an immediate cause of the damage for illegality to bar the claim = Delaney v Pickett

Question 10

Illegality - Patel v Mirza test

Answer 10

weigh (policy) reasons to allow against reasons to refuse the defence + consider whether denial of claim = proportionate response to illegality

(confirmed that applied to tort in Henderson v Dorset Healthcare)

Question 11

Illegality - eg of successful pleas

Answer 11

• Ashton v Turner (1982): C & 2 others driving away as fast as they could after committing burglary, car crashed, C injured sued D driver => established negligence but claim failed bcs illegality (not possible to set a standard for duty of care ‘reasonable burglary escape’)
• Pitts v Hunt (1991) : C = passenger on motorbike, encouraged driver to race while drunk, injured in crash => CA rejected claim on grounds of illegality, bcs not possible to set a standard of care

Question 12

Illegality - narrow rule

Answer 12

= Lord Hoffman in Grey v Thames Train

Narrow rule = you cannot recover for damage which flows from […] punishment lawfully imposed upon you in consequence of your own unlawful act” [29]

=> Justification = need to avoid inconsistency btw civil and criminal law : civil court can’t compensate C for a sanction lawfully imposed on him by crim court which found him resp for a crim act

Question 13

Illegality - wide rule

Answer 13

= “you cannot recover compensation for loss which you have suffered in consequence of your own criminal act” [29]

=> justification: “it is offensive to public notions of the fair distribution of resources that a claimant should be compensated (usually out of public funds) for the consequences of his own criminal conduct.”

Question 14

Illegality - causation

Answer 14

Causing smth ≠ providing the occasion for someone else to cause smth = Lord Hoffman in Grey

=> Contrast Delaney v Picket and Joyce v O’Brien

Question 15

Illegality - causation - Delaney v Picket

Answer 15

C&D transporting drugs, C injured in crash caused by D’s negligence

=> CA refused to bar the claim on the grounds of illegality bcs cause of C’s injury = D’s negligent driving, not C’s illegal conduct (= possession of drugs)

Question 16

Illegality - causation - Joyce v O’Brien

Answer 16

C&D stole ladders, C fell out of back of the van as they fled (D driving v fast)

=> HL allowed D to bring illegality defence bcs foreseeable that such a joint crim enterprise (theft) created increased risk of harm due to dangerous driving (when trying to get away), and the risk materialised

=> C’s injury can be said to have been caused by the crim activity, even if resulted from negligent or intentional act of another party to the crim act

=> foreseeability of risk is relevant to whether illegal conduct = cause of injury for purpose of illegality defence

Question 17

Illegality - the debate - objections to illegality

Answer 17

• Unjustified windfall for D, who may be equally implicated in illegality
• Should courts help a C who has behaved illegally

Question 18

Illegality - the debate - justifications for illegality

Answer 18

• need to avoid inconsistency btw civil and criminal law => civil court can’t compensate C for a sanction lawfully imposed on him by crim court which found him resp for a crim act (applies to narrow rule only) – Lord Hoffmann in Grey v Thames Train at [29]
• “it is offensive to public notions of the fair distribution of resources that a claimant should be compensated (usually out of public funds) for the consequences of his own criminal conduct.” – Lord Hoffmann in Grey v Thames Train at [29]
• In joint crim enterprise cases: diff to set a standard of care – wtf is ‘reasonable criminal conduct’?
  /!\ concentrate (Carol Brennan) suggests that court doesn’t want to rather than can’t

Question 19

Exclusion of liability- principle

Answer 19

= D can claim that he expressly excluded or limited liability by notice or contractual term

If C = a consumer: regulated by CRA 2015, s62 and 65
Otherwise, UCTA 1977, s2

Question 20

Exclusion of liability - consumers - CRA 2015, s62

Answer 20

Requires terms / notices in consumer contracts to be fair:

“a term [or notice] is unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties’ rights and obligations […] to the detriment of the consumer.”

Question 21

Exclusion of liability - consumers - CRA 2015, s65

Answer 21

(1) “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”

(2) Knowing or agreeing to term or notice NOT voluntary acceptance of any risk

(3) ‘personal injury’ includes “any disease and any imparment of physical or mental condition”

(4) Negligence = breach of
* Contractual obligation to take reasonable care or exercise reasonable skill
* CL duty to take reasonable care or exercise reasonable skill
* Occupier’s common duty of care (OLA 1957)

(5) Immaterial whether breach of duty inadvertent or intentional or whether lb direct or vicarious

Question 22

Exclusion of liability - UCTA 1977, s2

Answer 22

(1) A person cannot exclude or restrict liability for death or personal injury resulting from negligence

(2) For other kinds of loss / damage: term or notice purporting to exclude liability must satisfy requirement of reasonableness

(3) Agreement or awareness of term / contract purporting to restrict lb NOT voluntary assumption of risk

Question 23

Contributory negligence - principle

Answer 23

when C partly to blame for the injury he complains of, court should apportion damages accordingly / reduce damages ‘to such extent as [it] thinks just and equitable’

= s1 Law Reform (Contributory Negligence) Act 1945

Question 24

Contributory negligence - statute

Answer 24

“Where any person suffers damage as the result partly of his own fault and partly of the fault of any other person(s), a claim in respect of that damage shall not be defeated by reason of the fault of the person suffering the damage, but the damages recoverable in respect thereof shall be reduced to such extent as the court thinks just and equitable having regard to the claimant’s share in the responsibility for the damage”

Question 25

Contributory negligence - elements of CN

Answer 25

• C has suffered damage due to the fault of D
• C is partly at fault for the damage / loss complained of

Question 26

CN - not available as df to intentional torts

Answer 26

= Co-operative group Ltd v Pritchard (2011)

Question 27

CN - rational (at CL before 1945 Act)

Answer 27

“a plaintiff whose failure to take care for his own safety was a cause of his injury could not sue” (Lord Hoffman in Reeves)

Question 28

CN - fault (1) - defº & limbs

Answer 28

= “negligence, breach of statutory duty or other act or omission which gives rise to a liability in tort” (s4 LRCNA 1945)

=> 2 limbs = Lord Hope in Reeves, Aitkens LJ in Co-op case
1) D’s conduct: fault = ‘various acts or omissions which give rise to liability in tort’

2) C’s conudct : “negligence, breach of staturory duty or other acts or omissions which would, but for the Act, have given rise to the defence of contributory negligence at CL”

Question 29

CN - fault (2) - wide interpretation

Answer 29

‘Fault’ of C includes intentional acts as well as negligence = Reeves

+ interpreted widely :
* Eg Reeves: suicide = ‘fault’ for purpose of CN finding
* 13yo failing to see car coming at unreasonable speed towards her when crossing the road after getting off bus = fault in Jackson v Murray

Question 30

CN - fault (3) contribution to damage, not accident

Answer 30

C must have contributed to the damage (or the loss), not necessarily to the event or accident that caused it

=> Frequent cases = failure to take precaution for his own safety

=> eg Froom v Butcher (1976) = failure to wear a seatbelt case

Question 31

CN - fault (4) - foreseeability of harm

Answer 31

Requirement that ‘harm to oneself’ be a forseeable csq of C’s conduct = Lord Denning in Jones v Livox Quarries

/!\ presumably harm of a type linked to conduct (eg person not wearing a seatbelt wouldn’t be CN for injury caused by getting shot)

Question 32

CN - causation (1) - cause vs circumstance

Answer 32

Denning LJ in Jones v Livox Quarries : question = whether C’s CN was a cause or a circumstance of the injury

• “a matter of common sense more than anything else” => every case depends on its facts
• “foreseeability is not the decisive test of causation. It is often a relevant factor, but it is not decisive”
• CN not relevant to completely unrelated risk: eg if C had been shot by negligent sportman, his conduct wouldn’t be a cause of his injury, just the circumstance of it

Question 33

CN - causation (2) - material contribution

Answer 33

C’s conduct must have materially contributed to the injury, doesn’t need to be main cause)
* Jones v Livox Quarries, Foom v Butcher = cases where it did
* St George v Home Office = case where it didn’t

Question 34

CN - causation (3) - cause of damage, not accident

Answer 34

the question is not what was the cause of the accident but what was the cause of the damage” (Froom v Butcher)
=> doesn’t matter that accident or event not caused by C, if C’s fault introduced circumstance that lead to him suffering more damage (eg failure to wear seatbelt or helmet)

Question 35

CN - causation (4) - remoteness

Answer 35

Normal rules of causation and remoteness generally apply :

=> eg of remoteness = St George v Home Office

/!\ exception where D is under a duty to prevent an act, occurrence of that very act not a novus actus / doesn’t break chain of causation, even if free and deliberate act of C = Reeves

Question 36

CN - apportionment of damages (1) - general rule

Answer 36

Where C is found to be CN, damages should be reduced “to such extent as the court thinks just and equitable, having reagrd to the claimant’s share in responsibility for the damage”

=> Jackson v Murray : consider
* blameworthiness : how far did C’s conduct fall below the standard of the reasonable man ?
* causation : what portion of the damage was caused by C’s conduct ?

Question 37

CN - apportionment of damages (2) - seatbelts

Answer 37

= guidelines from Froom v Butcher :

dep on extent to which injury could have been prevented by wearing a seatbelt
* Whole injury : damages reduced by 25%
* A portion of the injury : damages reduced by 10%
* None of the injury (seatbelt would have made no difference) : damages should not be reduced