Defences To Negligence

Question 0

S1(1) of the 1945 Act.

Answer 0

Specifies that damages will be reduced where damage is suffered partly as a result of the claimants fault, and partly as a result of another party.

It is the damage, not the accident, that must result partly from the fault of each party.

Question 1

Defences to negligence:

1) Contributory negligence.

Answer 1

Since 1945 (Law Reform (Contributory Negligence) Act, contributory evidence has been a partial defence to the majority of actions in tort, particularly tort.

-WHERE THE COURT FINDS ‘FAULT’ ON THE PART OF BOTH THE CLAIMANT AND THE DEFENDANT HAS CONTRIBUTED TO THE DAMAGE SUFFERED -damages subsequently reduced to the extent the court thinks just and equitable.

Question 2

Jones v Livox Quarries Ltd 1952

Answer 2

Claimant worked in a quarry and was riding on the back of a traxcavator.
The vehicle rounded an obstruction and whilst stopping to change gear was run into from behind by a dumper truck and the claimant was injured.

Lord Denning: ‘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 hurt himself; and in his reckonings he must take into account the possibility of others being careless’.

Question 3

Owens v Brimmel 1977

Answer 3

The claimant and he defendant went out drinking together in Cardiff and both of them consumed about 8/9 pints each.
On the way home the D drove negligently into a lamp post.
Held that the claimant was 20% contributory negligent in getting in the car with a driver whom he knew to be drunk.

Question 4

Froom v Butcher 1976

Answer 4

Lord Denning: the question is not what was the cause of the accident but rather that was the cause of the accident?
The accident was caused by the bad driving; the damage was caused in part of the bad driving of the defendant and in part by the failure of the plaintiff to wear a seatbelt.

Question 5

Apportionment

Answer 5

According to S1(1) the apportionment should reflect relative responsibility for the damage suffered.

Question 6

Froom v Butcher 1976

Answer 6

-applied a reduction formula for contributory negligence if a seatbelt was not worn.
Similar formula for the neglect of wearing a cycle helmets and motorcycle helmets.

Question 7

Core v IBC 2008

Answer 7

D’s negligence caused an accident in which the claimant was physically injured.
The accident led to depression which in turn led to his suicide.
-the first instance judge held against the claimant on the basis that there was no substantial findings of relevant fact to contributory negligence.
Lord Bingham: assessed the contributory negligence at 0% when the case reached the House of Lords on grounds of insufficient evidence.

Question 8

St George v Home Office 2008

Answer 8

Claimant had been an abuser of drugs and alcohol since 16.
Inmate at Brixton prison for theft.
He was allocated the top bunk- despite making it known that he suffered from withdrawal seizures and prone to epileptic fits.
He fell from the bunk as a result of a seizure and was left severely paralysed.

At first instance the judge awarded damages of 85%, a 15% reduction to reflect the claimants lifestyle decisions.
On appeal the Court of Appeal reversed this 15% contributory negligence as I) the claimant’s injury was not ‘partly the result’ of his own fault.
Ii) it was not just or equitable to reduce damages having regard to the claimants share in responsibility for the injury. - particularly as he told the prison of his history with seizures.

Question 9

VOLENTI NON FIT INJURIA: Willing acceptance of risk.

Answer 9

A defendant will escape liability for the consequences of negligence if the claimant has expressly, or impliedly, agreed to accept the legal risk associated with that negligence.

-claimant cannot sue if consents to the risk of damage.

Question 10

Morris v Murray 1991 - Court of Appeal.

Answer 10

Claimant and D spent the afternoon drinking, leaving him with an alcoholic concentration of 3 times over the limit.
The D then suggested they go for a flight in his light aircraft for which he held a pilots licence.
-the pilot was killed and the claimant passenger injured.
-held that the defendant was not liable as the claimant had consented to risk thus waiving his rights.

Question 11

ICI v Shatwell 1965

Answer 11

Two brothers were employed by appellants as shot firers.
They chose to prohibit regulation and an explosion occurred, injuring them both.
- House of Lords held by a majority that the defence of volenti should success as there had been a deliberate decision to disobey knsrtructions rather than a careless collaboration between the men.

Question 12

Wooldridge v Sumner 1963

Answer 12

Volenti is not applicable in cases were a spectator is injured.

Question 13

Exclusion of liability -

Answer 13

The defendant may claim that he explicitly excluded or limited liability by a notice or contractual terms.

Question 14

EX TURPI CAUSA NON ORITER ACTIO - Illegality

Answer 14

The law will not assist a claimant who has based his action on an illegal act.
-generally narrowly applied.

Question 15

Ashton v Turner 1981

Answer 15

Plaintiff was 1 of 3 men involved in a car crash, while driving at speed after committing a burglary.
- his negligence failed owing to the defence of illegality, with the court finding that no duty of care was owed to him in that context.

Question 16

Pitts v Hunt 1991

Answer 16

The plaintiff had been a passenger on a motorbike and was injured when it crashed after he had knowingly encouraged the driver to race while drunk.
Claim failed on the grounds of illegality.
Majority of the court of appeal held that it was not possible to set a standard of care.

Question 17

Reasons for illegality as a defence.

Answer 17

1) would be an affront to the public conscience and therefore against public policy, to allow the claimant to use the law to recover compensation in the circumstances
2) that in the case of an illegal enterprise is difficult or impossible for the court to set a standard of care.

Question 18

When will illegality apply?

Answer 18

There must be a close connection between a serious illegal act and the basis for the claim.
-illegality would defeat a claim by a burglar injured owing to his partners negligent handling of explosives while trying to break into a safe; would not have applied if partner had crashed the car on the way to go.

Question 19

Gray v Thames Trains 2009

Answer 19

Claimant was a passenger who suffered post traumatic stress disorder and killed someone in a road rage incident.
Pleaded guilty to manslaughter on grounds of diminished responsibility.
Sued the defendant who has been negligent in causing the crash.
Lord Hoffman: justification for accepting the defence of illegality in this case it would be inconsistent for a court for a sentence imposed owing to a criminal act for which he was responsible.

Question 20

2010 Law Commission Report

Answer 20

Concluded that it endorsed the direction in which the common law was developing in cases such as Gray.

Question 21

Limitation Periods in which to bring an action.

Limitation Act 1980.

Answer 21

Tort claims which involve personal injury caused by negligence, nuisance or breach of duty must be started within 3 years of the cause of action.