Defences to Negligence

Question 1

Defences to Negligence

Answer 1

1) Volenti non fit injura - C’s consent
2) Illegality
3) Contributory negligence

Question 2

Woolridge v Summer

Answer 2

For volenti to apply, C must consent to the breach of duty in the full knowledge of the nature and extent of the risk - consent to just a RISK of injury is insufficient

Question 3

Dann v Hamilton

Answer 3

Asquith J held that volenti only applies in two main situations:

1) D created an obvious danger which C chose voluntarily to go into
2) C impliedly gave D permission to act in a certain way

Question 4

ICI v Shatwell

Answer 4

Volenti applies where C has extensive knowledge about the risk, especially where they have been trained to follow rules in order to avoid it

Question 5

Morris v Murray

Answer 5

C accepting a ride from someone drunk in an aeroplane was so glaringly obvious that he voluntarily accepted the risk of injury and waived his right to compensation

Question 6

Corr v IBC Vehicles

Answer 6

For volenti to apply, C’s consent must be truly informed and voluntary - it was not in this case because C’s psychiatric illness prevented them from properly weighing up the risks

Question 7

Reeves v Metropolitan Police Commissioner

Answer 7

Volenti does NOT apply to individuals in custody - nature of duty here is to prevent any self-harm

Question 8

s.1(1) Law Reform (Contributory Negligence) Act 1945

Answer 8

CN is no longer a full defence, but the damages awarded to C shall be reduced to the extent that the court feels is just and equitable in light of C’s CN

Question 9

Jones v Limox Quarries

Answer 9

Test for CN under s.1(1) of the 1945 Act is whether C failed to take the care that a reasonable, prudent person would have taken for their own safety

Question 10

Froom v Butcher

Answer 10

C’s failure to wear a seatbelt = CN, even though they were not mandatory at the time and only 20% of people wore them. Court does not look at what the majority of people do, but what the reasonable person ought to do

Question 11

Yachuk v Oliver Blais Co

Answer 11

Age is a relevant factor for CN - young children cannot be subject to CN

Question 12

Gough v Thorne

Answer 12

Lord Denning affirmed Yachuk that young children can never be liable for CN, whereas Salmon LJ suggested that the comparison should be with what the reasonable 13 year old person would have done in that situation

Question 13

Smith v Finch

Answer 13

CN did not apply because it would have made no difference to C’s injuries - if the same damage to C would have occurred anyway, then CN does not apply

Question 14

Jones v Limox Quarries

Answer 14

Where C’s carelessness can obviously lead to the sort of injury suffered by himself, causation is met for CN - so C disregarding the rules and driving the quarry vehicle negligently could clearly lead to injury, so CN applied

Question 15

St George v Home Office

Answer 15

Court needs to consider whether C’s contribution has fed into damage, or if it is too remote in time, place and circumstances for CN to apply

C was a drug addict and so his contribution wasn’t sufficiently close in time, place and circumstances for CN to apply

Question 16

Froom v Butcher

Answer 16

It is causation of damage that is required, NOT causation of the accident itself. C had not contributed to the accident, but did contribute to the damage by not wearing a seatbelt - so CN applied

Question 17

Reeves v MPC

Answer 17

HL made CN reduction for prisoner suicide in custody - while there was a duty to prevent self-harm in prison, C was still of sound mind when committing suicide - so D is still liable, but CN applied and damages were apportioned 50/50

Question 18

Corr v IBC Vehicles

Answer 18

Worker suffered injury which led to depression and later suicide. 3-2 majority held that CN did apply because there was some kind of choice, even though it was a distorted one due to C’s depression

Question 19

Illegality

Answer 19

This does NOT only apply to negligence, but also applies to other torts.

‘Ex turpi causa’

Question 20

Les Laboratories Servier v Aptoex

Answer 20

SC said that the definition of turpitude (wrongfulness) follows from the illegality defence. Lord Sumption explained that illegality is not actually a defence, but judicial abstention limited to acts which involve the interests of the state - i.e. criminal acts being deterred

Question 21

Different approaches to illegality

Answer 21

a) Criminality irrelevant
b) Impossibility of ascertaining standard of care
c) Relevant for FJR limb of Caparo
d) Prevents C from relying on illegality
e) Causation/consistency between tort and criminal law
f) Focus on public policy

Question 22

Revill v Newberry

Answer 22

C’s illegal activity by trespassing did not prevent C’s claim - purpose of tort law is to compensate damage suffered by C

Question 23

Pitts v Hunt

Answer 23

Joint illegal activity meant that it was impossible to ascertain the appropriate standard of care, so D could not rely on illegality of C’s conduct

Question 24

Vellino v Chief Constable of Greater Manchester

Answer 24

CA used C’s illegality in the fair, just and reasonable to impose a duty on D assessment - majority held that C’s illegality prevents the duty of care in itself, so C has no claim due to their illegality

Question 25

Hewison v Meridian Shipping

Answer 25

C cannot recover damages for the element of the claim that involved his own illegal activity - so C couldn’t recover the loss of future earnings because this element relied on his illegality

Question 26

Gray v Thames Trains

Answer 26

Distinction between the wide and narrow versions of illegality

Wide = C cannot claim compensation for losses suffered as a consequence of their own criminal conduct
Narrow = C cannot claim compensation for loss resulting from the imposition of criminal sanctions

Lord Hoffmann said that C’s claim failed because of causation - situation fell within the wide version of illegality as C’s loss of earnings was caused by their own illegal conduct

Whereas Lord Roger argued that the real reason for the claim failing was to avoid inconsistency between tort and criminal law - imposition of criminal sanction should cut off prior liability for D

Question 27

Hounga v Allen

Answer 27

Court took a very different approach to illegality as a ‘defence’ to negligence - weighed up the various public policy factors in determining whether C’s claim should succeed, despite C’s illegal conduct

Question 28

Les Laboratories Servier v Aptoex

Answer 28

SC was sceptical of public policy approach in Hounga v Allen and argued that it would make illegality too discretionary. So cast some doubt over the public policy factors test