Defences to Negligence Flashcards
Overview of defences
a) Voluntary assumption (complete)
b) Contributory negligence (partial)
c) Illegality (complete)
Elements of the voluntary assumption defence
a) Some (voluntary) agreement
b) Knowledge of the risk
c) Degree of danger
Current state of the law
Lack of clarity about scope of the defence and when it applies
Examples where there is NO voluntary assumption of risk
Sporting context (Wooldridge v Sumner)
Self inflicted injury (Corr v IBC Vehicles, Kirkham v CC Greater Manchester Police, Reeves v Metropolitan Police Commisioner)
Examples where there IS voluntary assumption of risk
ICI Ltd v Shatwell (knowledge of risk sufficeint)
Morris v Murray (joyride in plane with high degree of danger, voluntariness)
Contributory negligence
S.1(1) of Law Reform (Contributory Negligence) Act 1945
Interpretation of fault
S.4 of Law Reform (Contributory Negligence) Act 1945
Standard Charters Bank v Pakistan Shipping Co Ltd (No. 2 and 4)
Steps to show contributory negligence
a) Relevant fault
b) Claimant’s injury was partly the result of the claimant’s fault
c) Apportionment (just and equitable)
Relevant fault
a) Standard of care required for own safety (Jones v Livox Quarries)
Seatbelt in car: Froom v Butcher
Motorcycle: O’Connell v Jackson
Pedal cyclist: Smith v Finch
b) Suicide - personal autonomy retained (Corr v IBC Vehicles)
c) Children (not guilty generally) (Gough v Thorne)
But depends on nature of particular danger, child’s capacity to understand (Galbraith’s Curator ad Litem v Stewart (No.2)
Causation
Foreseeability (Jones v Livox Quarries)
Distinction between cause of accident and cause of damage (Froom v Butcher)
History of abuse etc may not be relevant (St George v Home Office)
Apportionment
Froom v Butcher
a) Causative potency
b) Blameworthiness
Should not challenge the judge’s numbers (Jackson v Murray)
Illegality at first
Sufficient causal connection between illegality and injury (Pitts v Hunt, Delaney v Pickett, Joyce v O’Brien)
“Inextricably linked” (Cork v Kirby MacLean Ltd)
“Sufficiently serious” criminal conduct (Vellion v CC Greater Manchester Police)
Wrong must involve dishonesty (Les Laboratoires Servier v Apotex Inc)
Now: Rule based approach
Gray v Thames Trains Ltd
a) Narrow rule: cannot avoid penalty imposed by the criminal law
b) Broad rule: cannot recover for consequences of own criminal act
Now: Public policy approach
Hounga v Allen: balancing public policy concerns
Patel v Mirza: ‘contrary to public policy to enforce a claim if….it would harm the integrity of the legal system’
Reconcile: rule-based Gray to achieve consistency and protect integrity of the system, which is the objective in Patel (Henderson v Dorset Healthcare University NHS Foundation Trust)
