General Defences Flashcards
Bowater v Rowley Regis Corporation
Scott LJ: a man cannot be said to be truly ‘willing’ unless he is in a position to choose freely, and freedom of choice predicates, not only full knowledge of the circumstances on which the exercise of choice is conditioned, so that he may be able to choose wisely, but the absence from his mind of any feeling of constraint so that nothing shall interfere with the freedom of his will.
Plea of volenti failed as the claimant did not have the freedom to make a choice. He was forced to obey the foreman’s orders.
Obiter: if an employee is paid ‘danger money’ to undertake employment with a risk of considerable danger to the employee, the defence of volenti may succeed. In such a case, the employee had a free choice on whether or not to embark on that employment.
Smith v Baker
- The claimant was not in a position to make a free choice as to whether he should continue working in a situation with a risk of injury to himself.
- In the early 19th century, employees were assumed to consent to the risks attached to their jobs as the courts did not believe that the relationship of employer/employee was an equal one and an employee may have been afraid not to go to work for fear of losing their job.
> As a response to societal and political changes at the end of 19th century, judicial thinking changed as in this case.
> The approach taken in this case has been followed since it is unusual for a volenti defence to succeed in an employer/employee situation.
> The defendant raised the defence of volenti, alleging that the claimant knew that it was a dangerous practice and had complained that it was dangerous but continued anyway.
> The court rejected this argumnt because although the claimant knew of the risk and continued to work, there was no evidence that he had voluntarily undertaken the risk of injury. - Merely to work does not indicate voluntary consent.
Nettleship v Weston
Defence of volenti did not apply; as the friend had checked the defendant’s insurance cover, that meant that he did not abandon his rights to compensation. His damages were reduced by 50 er cent to reflect the degree of his own fault.
Lord Denning: Knowledge of the risk of injury is not enough. Nothing will suffice short of an agreement to waive any claim for negligence. The plaintiff must agree expressly or impliedly to waive any claim for any injury that may befall him due to lack of reasonable care by the defendant: or more accurately due to the failure by the defendant to measure up to the duty of care which the law requires of him.
White v Blackmore
It is rare for the courts to imply agreement to accept a risk.
Defence of volenti did not succeed as he had agreed to the risk of racing but not the negligent construction of the spectator area. However, the notices were effective in excluding liability for his death.
Wooldridge v Sumner
The claim failed as there was no breach of duty. However, the court said that consent to risk of injury is not enough as there must be consent in full knowledge of the nature and risk of property.
Pitts v Hunt
Volenti was not available due to the provisions of the Road Traffic Act 1988, and the claim failed.
Imperial Chemical Industries Ltd v Shatwell
Defence of volenti succeed because the employee was not under pressure to take a risk but deliberately chose a dangerous way in which to work.
The claimant and his brother had not taken the recognised precautions when testing detonators.
Defence succeeded, because the claimant was fully aware of the risk he was taking by not taking precautions and had consented to the risk and potential damage.
Condon v Basi
Question for the court: what was the standard of care expected of a football player? As part of this, the court considered what risks were acceptable.
The court decided that the standard of care varies, according to the level of expertise the player has.
The defendant was in breach of duty as the tackle was reckless, even with regards to the standard expected of a local league player.
Sayers v Harlow Urban District Council
Claim in false imprisonment failed but she succeeded in negligence. However, her damages were reduced, as she had been contributory negligence when she tried to escape. Has she not done so, she would not have been harmed at all.
Jayes v IMI (Kynoch) Ltd
A claimant can be 100 per cent contributory negligence and this would have the same effect as the defence of volenti.
The claimant was held to be 100 percent contributory negligence, after he admitted that he knew that what he had done was foolish.
Anderson v Newham College
It suggested that Jayes had been decided per incuriam and it should not be followed.
> If the fault lies entirely with the claimant, the defendant cannot be at fault as the chain of causation has been broken.
> A claimant’s contributory negligence should reduce the defendant’s liability, not get rid of it completely.
The college was found to have failed to keep the floor free of articles likely to cause a trip. However, the claimant was greatly to blame, as he was not looking where he was going.
At trial, the claimant’s damages were reduced by 90 per cent for his contributory negligence. Both the claimant and the defendant appealed.
The court held there was a breach of duty. Liability was apportioned at 50/50, because it would have been reasonably practicable to turn the board around and the claimant should have been looking where he was going.
The court aid that Jayes should not be followed by trial judges and it should continue to be ‘a decision which probably is confined to its own facts’.
Gough v Thorne
- Lord Denning: there is no age under which a child cannot be held to be contributory negligence. However, the expected knowledge and awareness of a child at a particular age will be considered.
- At trial, the claimant’s contributory negligence was assessed at 30 per cent, but on appeal, the Court of Appeal disallowed the deduction.
> Lord Denning: a very young child cannot be guilty of contributory negligence. An older child may be; but it depends on the circumstances. A judge should only find a child contributory negligence if she was old enough that she could reasonably be expected to take precautions for her own safety: a child, even at 13, has not the same road sense as an adult. - The court held that taking into account her age, she had not fallen below the expected standard of care and was not contributory negligence.
Yachuk v Oliver Blais Co. Ltd
The court held the seller liable. The child was not found to be contributory negligence at all, as he could not be expected to know the dangers of playing with petrol.
Evans v Souls Garage
Defendant was found to be negligent when he illegally sold petrol to underage boys, but damages were reduced by one-third for contributory negligence, as the claimant knew that playing with petrol was dangerous.
Probert v Moore
Claimant was not contributory negligence in any way.
Pittaway QC J: an ordinary 13 year old should not be expected to consider taking the same level of precautions as an adult. It would be asking too much of her to say that she should not have started to walk home at all, waited for her mother or accepted a lift, or should not have started to walk home without borrowing a high visibility jacket, reflective markings or torch from stables.
