Defences to Negligence Flashcards
Voluntarily assuming the risk:
Volenti non fit injuria - ‘no wrong done to the willing’.
Complete defence.
1) Knew the nature and the extent of the harm.
2) Voluntarily agreed to it.
Lord Denning in Nettleship v Weston: “knowledge of the risk of injury is not enough. Nothing will suffice short of an agreement to waive a claim for negligence.”
Damn v Hamilton:
Voluntary assumption of risk:
[1939]
Claimant was injured in a card accident and the defendant driver had been drinking.
“You should be like me, if anything is going to happen, it will happen.”
Asquith J held that although the claimant was aware the defendant had been drinking, she had not consented to, or absolved him of any liability for, any negligence on his part that might cause her harm.
Morris v Murray:
Voluntary assumption of risk:
[1991]
After spending an afternoon drinking, the defendant had consumed over half a bottle of whisky, and he and the claimant decided to take his aeroplane for a spin. The claimant drove to the airfield and helped to prepare the plane for take-off, and then got in. Shortly after the plan crashed, killing the defendant and seriously injuring the claimant.
CoA held that because the claimant was not so drunk he was able to appreciate the nature of the risks involved and had gone aboard nonetheless.
Illegality:
Complete defence.
A claimant ought not to be able to recover damages for losses they suffer while engaged in criminal activity: ex turpi causa non oritur actio (‘no action may be found on an illegal act’).
Lord Hoffman - ‘it is offensive to public notions of fair distribution of resources that a claimant should be compensated (out of public funds) for the consequences of his own criminal conduct.’
Gray v Thames Trains
Illegality:
[2009]
Claimant developed PTSD after being involved in the Ladbroke Grove rail crash. Two years later under the effects of the condition, stabbed and killed a pedestrian in a road-rage incident and was convicted of man slaughter.
He sued for damages for loss of earnings and reputation.
Rejected his claim.
Pitts v Hunt:
Illegality:
[1991]
Claimant and defendant teenagers who spent the evening drinking and then went home on the defendant’s motorcycle. Although claimant knew he was drunk, underaged and unlicensed, he rode pillion and encourage the defendant to ride in ‘a reckless and irresponsible way.’
CoA denied claimant’s claim on negligence on the basis of illegality.
Delaney v Pickett:
Illegality:
[2011]
Claimant and defendant were transporting a large quantity of cannabis when the defendant negligently lost control of the vehicle.
CoA allowed his appeal on the basis that ‘as a matter of causation the damage suffered by the claimant was not caused by his criminal act.’
Contributory negligence:
Partial defence.
Law Reform (Contributory Negligence) Act 1945
In order for the defence to be raised, three questions need to be addressed:
1) Did the claimant fail to exercise reasonable care for their own safety?
2) Did this failure contribute to the claimant’s damage?
3) By what extent should the claimant’s damages be reduced?
CN - Did the claimant fail to exercise reasonable care for their own safety? Case:
Jones v Luvox Quarries Ltd [1952]
Claimant was riding on the back of a slow-moving tracked vehicle, contrary to company regulations, when a dumper truck crashed into the back of it seriously injuring the claimant.
Sued his employer.
CoA held: ‘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 be hurt himself’. Reduced 20%.
CN - by what extent should the claimants damages be reduced? Case:
Should be ‘just and equitable having regard to the claimant’s share in the responsibility for the damage.’
Comparative blameworthiness - if the parties are equally to blame the damages will be reduced by 50%.
From v Butcher [1976]
The claimant suffered head and chest injuries and a broken finger when his car hit by defendant. Not wearing a seat belt, but no statute requiring it. He was held contributorily negligent in respect of the injuries he would have avoided if he had worn a seatbelt.
The Froom v Butcher guidelines:
Level of injury prevented completely - 25%.
Less severe injury - 15%.
No difference - 0%.
