Defences to negligence

Question 1

Three defences

Answer 1

• Voluntarily assuming the risk
• Illegality
• Contributory negligence

Question 2

Voluntarily assuming the risk

Answer 2

A complete defence.
“one who has invited or assented to an act being done towards him cannot, when he suffers it, complain of it as wrong” (Smith v Baker [1891])

Question 3

Two types of assuming the risk

Answer 3

• Where C consents to the specific harm caused by D and the risk of that harm (it must be shown that C was aware of the risk)
• Where C consents to D excluding their liability for any harm caused (limited in contract law)

The two types are somewhat analogous (White v Blackmore [1972]).

Question 4

White v Blackmore [1972]

Answer 4

C’s husband was killed watching a motorbike race after a chain of events led to him being thrown into the air. C did not know of all the risks present but there was sufficient notice around the ground excluding liability which was held to be vlaid.

Question 5

Establishing the defence

Answer 5

D must show that C agreed to or voluntarily took the risk of the harm that materialised.

Question 6

Consent to risk requirements

Answer 6

1. C knew the nature and extent of the risk of harm
2. C voluntarily agreed to it (Morris v Murray [1991])

Awareness is not enough - they must agree to it (Dann v Hamilton [1939]).

Question 7

Dann v Hamilton [1939]

Answer 7

Although the claimant very well knew of the drunken state of a driver of a car he was entering, stating to a third party that ‘If anything is going to happen, it will happen’ does not constitute consent of the risk of harm from an accident which eventuated.

Question 8

Nettleship v Weston [1971]

Answer 8

Knowledge is not enough, a waiver to a claim for negligence must be given.

This was approved in Reeves v Commissioner of police for the Metropolis [2000].

Question 9

Morris v Murray [1991]

Answer 9

This case used a more lenient test. Two drunk men went for a spin on one of their airplanes, and when it crashed C claimed for negligence. However it was held by entering and preparing the plane he had knowledge and had consented to the risk present.

Question 10

Slater v Clay Cross [1956]

Answer 10

The actual injury that occurred should be consented to, not a different type of injury.

Question 11

Condon v Basi [1985]

Answer 11

In sport, C would consent to a risk of being tackled or fouled, but not a career ending tackle.

Question 12

Illegality

Answer 12

A complete defence.

It denies recovery to certain claimants injured while committing unlawful activities.

Question 13

Gray v Thames Trains [2009]

Answer 13

This case pointed out two formulations of the defence:

• That civil claims cannot lie in recovery for criminal sanctions for someone’s own unlawful act
• Civil claims cannot lie on incidents during illegal activity

Thus in this case,C was injured in a train crash and as a result of his PTSD he killed someone. He claimed on D for a loss of earnings as a result of his detention but D found the illegality defence.

Question 14

Euro-Diam v Bathurst [1990]

Answer 14

You should not be able to claim where it would be an affront to the public conscience where it would appear to aid a criminal act.

Question 15

Trivial illegal acts

Answer 15

Are unlikely to bar a claim. If a tort is committed during an illegal act which is totally unrelated, then they may be able to recover (National Coal Board v England [1954]).

Question 16

Pitts v Hunt [1991]

Answer 16

D and C went out drinking together; C encouraged D to drive recklessly on his motorbike with him on the back. They had an accident and D died and C was injured; his claim in negligence was defended for illegality as the driver was underage, drunk and unlicensed.

Question 17

Delaney v Pickett [2011]

Answer 17

This case doubted the Pitts test: two traffickers were carrying marijuana illegally and as a result of D’s negligence C was injured in a car crash. Despite C carrying out an illegal act at the time, it was unrelated to the nelgigence and thus illegality failed.

Question 18

Justifications for illegality

Answer 18

Deterrence
Not to condone or assist wrongdoers
Belief that bad men should get less

Question 19

Clunis v Camden HA [1998]

Answer 19

A mentally ill man killed another and claimed on the HA for negligently letting him free. His claim was dismissed on illegality.

Question 20

Vellino v Chief Constable Manchester [2001]

Answer 20

A man who suffered injuries after jumping from a second floor window was rejected redress for police negligence to prevent him from injuring himself during arrest because it arose directly from his illegal act of resisting arrest.
Established that the defence of illegality may not be relied on where ‘although the damage would not have happened without the criminal act of the claimant, it was caused by the tortious act of the defendant’

Question 21

Revill v Newbury [1996]

Answer 21

D shot C while C was trying to steal from his shed - the defence of illegality was dismissed as D used excessive force.

Question 22

Contributory negligence

Answer 22

Calculates the amount of damage is attributed to your own act and reduces damages accordingly.
It is a partial defence.
Defined by s1(1) of the Law Reform (Contributory Negligence) Act 1945:
Where any person suffers damage as a result partly of his own fault and partly of the fault of any other person or persons, 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 of the damage.

Question 23

Establishing contributory negligence

Answer 23

Three questions are asked:

1. Did C fail to exercise reasonable care their own safety?
2. Did this failure contribute to C’s damage?
3. By what extent should C’s damage be reduced? – this is an important question in establishing the reduction in the claim

Question 24

1. Did the claimant fail to exercise reasonable care for their own safety?

Answer 24

This is a reasonable man standard though modfiied for children in Probert v Moore [2012]).
In Jones v Livoz Quarries [1952] C riding on the back of traxcavator contributed to his injuries as both him and the lorry driver that crashed into the traxacavator negligently passed the but for test.

Question 25

Other instances of contributory negligence

Answer 25

• Pulling out in front of a police car which was speeding and had its light flashing (Armsden v Kent Police [2009])
• Attempting to cross the road when the red pedestrian light was on (Rehill v Rider Holdings [2012])
• Jumping off an indoor climbing wall (Pinchbeck v Craggy Island [2012])
• Mooning cars in the middle of the road while drunk (Ayres v Odedra [2012])

Question 26

2. Did this failure contribute to the claimant’s damage?

Answer 26

They must contribute to their own damage.
In George v Home Office [2008] it was found that a prisoner falling from a top bunk was not contributorily negligent to his own damages after having an epileptic fit due to drug and alcohol withdrawal. So despite him being the but for causant, it was not sufficiently close.

Question 27

3. By what extent should the claimant’s damage be reduced?

Answer 27

this looks at the comparative blameworthiness of both parties.

Question 28

Young v Kent CC [2005]

Answer 28

A 12 year old boy climbed on the roof of a house to retrieve a football, both him and the owner of the house were equally negligent (damages reduced by 50%).

Question 29

Froom v Butcher [1972]

Answer 29

Not wearing a seatbelt when being negligently hit by a car reduced damages by 20%.
It has been extended to motorbike helmets (Capps v Miller [1989] and bicycle helmets (Smith v Finch [2009])

Question 30

Stanton v Collinson [2010]

Answer 30

A teenager did not have his damages reduced when not wearing a seatbelt as it was found that wearing one would not have reduced the damages he suffered.

Question 31

Stinton v Stinton [1995]

Answer 31

Damages will be reduced by 30% if the driver is drunk unless the passenger encourages them to speed.