Defences to negligence claims Flashcards
Law Reform (Contributory Negligence) Act 1945
Where damage is suffered which is partly due to Cs fault and any other persons’, damage will be reduced to such extent as the court thinks just and equitable having regard to claimant’s share in responsibility.
Fault def in s4 - acts/omissions which give rise to liability in tort or would (apart from this act) give rise to the defence of contr neg.
Can deliberate conduct from C amount to cont neg? (Suicide cases)
Yes - Reeves - Man killed himself and was of full capacity.
Although suicide didn’t break causal link, it did contribute to the deceased’s death and so 50% reduction.
Similar principle in Corr v IBC - did not break causal link but deduction for contr. neg justified
Froom v Butcher (seatbelts)
Failure to put on seatbelt can give rise to contributory negligence.
Although accident caused by D, the injuries were almost entirely due to failure to wear seatbelt - damages reduced by 20%.
Jackson v Murray - equally blameworthy?
Child stepped out onto road with low visibility, D driving too fast and hit her.
50% apportionment = equally blameworthy
St George v Home Office - Prison liability for dodgy placement
No contributory negligence. C’s addiction (which led to seizure risk) was too remote from the injury (fall from bunk). Prison knew the risk and negligently placed him on top bunk.
Not fair, just, or equitable to reduce damages.
Key Point: Prior fault (addiction) not enough for contributory negligence if it’s too remote from the immediate cause of injury.
Campbell v Advantage Insurance - passenger of drunk driver
Objective standard - Group of friends went out drinking. Claimant sat in the passenger seat and was drunk, and his drunk friend drove.
A reasonable person would have appreciated that the man was too drunk - 20% share reduction.
Can the 1945 Act apply to a claim for breach of contract?
Primo Fund v Bank of Bermuda (Cayman) Ltd:
Definition of ‘fault’ in s4 refers to conduct (‘other act or omission’) not cause of action - so it does apply.
Volenti
Two requirements:
1. Actual knowledge of the risk of injury created by D’s negligence
2. Voluntary acceptance of that risk
Morris v Murray - drunkenness
Two people drank together before deceased decided to fly plane. Plaintiff drove car to airfield and helped start and refuel aircraft. Aircraft crashed, held claim not available since volenti applied - it was such an obviously dangerous act, that he had to have accepted the risk.
C being intoxicated does not mean volenti doesn’t apply.
ICI v Shatwell - ignoring employers’ regulations
Two employees ignored employers’ regulations in using explosives, got injured. Held they voluntarily assumed the risk of injury.
Wooldridge v Sumner - volenti for sports spectators?
Sportsmen only liable for spectators if they show blatant disregard for safety - reckless or deliberate harm.
Volenti of limited utility in recreational activity cases, since it is very unlikely that C will be volens to risk created by unreasonable behaviour.
Exclusion of liability relevance to volenti?
For agreements falling under the statutes, presence of an exclusion of liability clause in an agreement or notice cannot of itself be used to show the voluntary acceptance of any risk (UCTA 1977, CRA 2016)
Gray v Thames Trains - Illegality and claims which result from criminal acts
Man involved in rail crash, personality change involved him killing someone later on. He claimed for loss of earnings in imprisonment and other heads of damage.
Taking wide approach, held no compensation since all the heads of damage resulted from his own criminal act.
Patel v Mirza - Facts and judgement
Insider trading, P transfers money to M.
Scheme failed, M doesn’t return money, and argues that no claim in contract could be enforced because the whole contract was illegal.
Held that whether a claim is against public interest due to illegality depends on 3 factors:
1. Purpose of the prohibition which has been transgressed, and whether denial of the claim would further that.
2. Any other relevant public policy
3. Whether denial of the claim would be proportionate, keeping in mind punishment is a matter for criminal courts.
One relevant public policy is that you should not be able to profit from your own wrongdoing. Another is that the law shouldn’t be self-defeating and condone illegality.
Henderson v Dorset - post-Patel consideration of Gray
C stabbed M, claiming it was due to M’s negligence.
Sued for similar heads of damage as in Gray, but the SC rejected this and affirmed Gray.
Pre-Patel cases are still good law if they are Patel-compliant
Gray is compliant as it considers public policy - not being able to profit from your wrongdoing and keeping the law coherent.
Stoffel v Grondona - post-Patel choice to find no illegality defence
Mortgage fraud case - solicitors made a mistake then pleaded defence of illegality to argue they shouldn’t be held liable.
Applied Mirza:
Purpose of the prohibition (criminalisation of mortgage fraud) would not be enhanced by denying the claim – there would be no impact.
Other relevant policies suggested reasons why claim should be allowed (enforcing professional duties, recognising importance of property rights)
If balance of 1 and 2 factors is that defence should not apply, no need to consider whether applying defence is proportionate.
Focus of the illegality defence is keeping the law coherent. Preventing profiting off your own wrongdoing is a relevant consideration but not the whole purpose of the defence.
Lewis-Ranwell v G4S - Application of Gray and Henderson to insane victims?
Does the law in Gray and Henderson apply to claimants who are insane?
Held they are not responsible for their actions, so can recover.
A killer may also be a victim if suffering from serious mental illness and let down by those who were meant to look after them.
RO v Gray - applying Mirza to aggressive driving
C had aggressive and violent confrontations with D, who rammed him off the road.
D argued C’s behaviour barred him from compensation.
Court applied Mirza, considering for policy that tortfeasors should generally have to pay, wanted to discourage vigilantism, and the burden on the NHS if we didn’t allow compensation here.
There would be no harm to the coherence of the law here, as C would not be recovering for his own criminal conduct but for the violent act of D. It would also be disproportionate to prevent the claimant from recovering for losses he had suffered.
Statutory illegality defence s329 CJA 2003 for trespass
Can have a defence if you were stopping C from doing some illegal act.
UCTA
S1: Defines negligence and scope of act
S2: No exclusion or restriction of liability in negligence for death or personal injury.
Any other damage restricted must fulfill requirement of reasonableness.
Where a contract excludes or restricts liability, signing it does not indicate voluntary acceptance of risk.
Doesn’t apply to consumer contracts or consumer notices but CRA does
S11: Defines and sets out criteria to consider for reasonableness
CRA 2015
S65: No exclusion or restriction for death or personal injury resulting from neg in consumer contracts
No voluntary acceptance of risk
S66: S65 does not apply to insurance contracts or contracts for creation/transfer of interest in land
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S65 effect on occupier’s liability
