Negligence 4 (Defences)

Question 1

Defences

Answer 1

• Even if the claimant manages to prove that a duty which was owed was breached and that that breach caused damage, s/he may not recover any -compensation.
• This is because the defendant may be able to rely on a defence.
• We will look at a situation where the amount of damages paid may be reduced because of the claimant’s own negligence and one defence – volenti non fit injuria

Question 2

Contribution/Contributory

Answer 2

These two words, although sharing the same root, have different meanings in law.

• A contribution is where more than one persons pays towards a cost.
• Contributory (as in contributory negligence) is where the claimant has made matters worse by his/her own actions.
• We are only concerned with contributory which, although listed as a defence, does not actually excuse the defendant from paying compensation, but rather reduces the amount to be paid.

Question 3

Contributory Negligence

Answer 3

• Contribution - Where damage results from the actions of several people, then defendants can claim a contribution towards the payment they have to make from the other parties at fault. See the Civil Liability (Contribution) Act 1978.
• With contributory negligence, if the damage suffered by Claimants is, in part, due to their own negligence, then the amount of damages they receive is reduced.

Question 4

Contributory Negligence 2

Answer 4

• This was not always the case. At common law a finding of contributory negligence against the claimant meant that the defendant was not required to pay any damages at all.
• Then the law became confused as the courts attempted to ameliorate its worst effects.
• Eventually a statute was needed to sort out the mess.
• Law Reform (Contributory Negligence) Act 1945

Question 5

Law Reform Act 1945

Answer 5

Where any person suffers damage as the result partly of his own fault and partly of the fault of any other person or persons, a claim in respect of that damage shall not be defeated by reason of the fault of the person suffering the damage, but the damages recoverable in respect thereof shall be reduced to such an extent as the court thinks just and equitable having regard to the claimant’s share in the responsibility for the damage

Question 6

The 1945 Act

Answer 6

• Applies to all forms of damage suffered by a claimant , including death and personal injury as well as property damage
• ‘Fault’ includes breaches of other tortious obligations or a statutory duty as well as negligence.
• Generally a claimant is not affected by the contributory negligence of third parties. However, there is an exception known as vicarious liability, which can make an employer liable for the torts of her/his employees.

Question 7

Causation

Answer 7

Claimants might be partly at fault for the injury they sustain e.g. by stepping into the road without checking then being hit by a speeding car.
What is required is that the claimant’s own negligence contributes to the damage s/he sustained, e.g. Not wearing a seatbelt means that the passenger suffers more severe injuries than s/he would have had a seat belt been worn.
It is essential that the injury to the claimant must be within the broad scope of the risk created by his/her own carelessness.

Question 8

Jones v Livox Quarries Ltd (causation example)

Answer 8

• Here, in contravention of his employer’s instructions, C was riding on a tow bar at the back of a vehicle which was rear-ended by another vehicle. C was severely injured.
• It was argued on C’s behalf that his position on the vehicle was not the cause of the accident
• Held: He was riding somewhere that was not a proper place to travel and was at risk of falling off. Injury was foreseeable and the exact cause of the injury immaterial. C was 20% at fault for his own injuries

Question 9

Duty of Care

Answer 9

The Claimant does not have to owe a duty of care to the defendant.
It is sufficient to establish that the claimant failed to take reasonable care of her/his own safety and this contributed to the injury sustained.

Question 10

Standard of Care

Answer 10

‘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 hurt himself; and in his reckoning he must take into account the possibility of others being careless’
(Jones v Livox Quarries)
In practice claimants are treated more leniently than defendants by the courts

Question 11

Contributory negligence and certain classes of claimant.

Answer 11

Some concessions are made, with regard to contributory negligence, to claimants who are

• Children
• The Infirm
• Workers
• In emergency situations

Question 12

Children

Answer 12

• There is no minimum age below which children are presumed incapable of contributory negligence.
• The age of the child will be taken into account when deciding whether s/he contributed to own injury.
• “A judge should only find a child guilty of CN if he or she is of such an age as can reasonably be expected to take precautions for his or her own safety.”
• The court looks at what level of care can be expected of the ‘ordinary’ child of the same age.
• Objective rather than subjective test.

Question 13

Parental responsibility

Answer 13

• If a child’s parents also bear some responsibility for the injury s/he suffers at the hands of a third party, the third party has to pay the damages, but can seek a contribution from the child parent’s liability by joining them as second defendants.
• e.g. A child with no road sense being allowed to play on a road unsupervised, when s/he is knocked down by a car driven negligently.
• Child sues car driver who adds the parents as second defendants

Question 14

Yachuk v Oliver Blais Co Ltd (children example)

Answer 14

Child, 9 years old, lied to petrol station attendant when buying petrol, saying needed for his mother’s car. In fact wanted for a game. Child ended up being burnt. Sued petrol station owner for negligence.
PC held that the attendant had acted carelessly in selling the petrol and could not get out of liability by claiming he was lied to by the child.
In other words, nothing excused such an obvious breach of duty as selling petrol to a 9 year old.

Question 15

The Infirm

Answer 15

Age may affect what is regarded as being reasonable care for own safety.
An elderly man is less able to take evasive action that a younger man.
Poor eyesight will affect the ability to see on-coming traffic when crossing a road.

Question 16

Workers

Answer 16

When assessing whether or not workers have taken reasonable steps to care for their own safety, allowances will be made for – 
Familiarity dulling danger,
Repetition,
Noise,
Confusion, 
Fatigue,
Preoccupation with work

Question 17

Caswell v Powell Duffryn Assoc Collieries (workers example)

Answer 17

C employed to keep conveyor belt clean in mine was killed when it started whilst he was cleaning it.
Held: as the lever to start the machine was some distance from the spot where it had to be cleaned, and as there was no safe system of signalling to prevent it from being started whilst being cleaned, the Ds were liable, as they had not shown that it was not reasonably practicable to avoid the accident.
No contributory negligence by C in this case.

Question 18

Emergencies

Answer 18

Where, in an emergency, a claimant has taken reasonable steps for his/her own safety that, in hindsight, were not needed, s/he will not be guilty of contributory negligence.
Jones v Boyce – C fearing that the stage coach he was riding on was being driven in a way that would make it overturn, leapt off – breaking leg.
D held liable for the injury even though the coach did not, in fact, overturn.

Question 19

Multiple defendants

Answer 19

In allocating damages between a careless claimant and more than one negligent defendant, the first step is to deduct from the total award of damages, the share due to the claimant’s own CN
Then the Ct will determine how the liability is to be split between the defendants
-e.g. An award of £100 reduced by 20% for CN by claimant. Two defendants each equally liable pay £40 each to the claimant as each 50% liable.

Question 20

Knowledge

Answer 20

For Volenti non fit injuria to succeed as a defence it must be shown that the claimant had full knowledge not just of the fact that there was a risk, but also full knowledge of the nature and extent of that risk.
The test is subjective – what did that actual claimant know?

Question 21

drunkenness

Answer 21

If the claimant was intoxicated when s/he decided to run the risk that led to injury, this may affect his/her ability to consent.
The more intoxicated the claimant is the more likely that the defence of volenti will not be available.
Mere knowledge that there is a risk is insufficient for the defence to operate.

Question 22

Smith v Baker (drunkeness example)

Answer 22

A man drilling holes for a Rly Co was injured when a stone fell from a bucket being swung over his head by a crane. This happened at times and without warning.
Held: the mere fact that he carried on working under such conditions did not mean that he voluntarily accepted the risk.

Question 23

Voluntary agreement

Answer 23

The claimant must have a choice of whether or not to take a risk – the agreement to do so must be genuinely voluntary.

• Bowater v Rowley Regis Corp – C employed to collect rubbish and provided with horse and cart. One day got excitable horse. Protested, but had to take it out. It bolted; he was injured. He sued.
• The defendants argued that they were not negligent and/or there was contributory negligence by the claimant and/or the defence of volenti non fit injuria applied

Question 24

Sporting events - players

Answer 24

Those who participate in sporting events may be held to have accepted the risks that go with the sport. But participants still owe each other a duty of care, but less of a duty than would be present outside the sporting arena.
In Condon v Basi the C suffered a broken leg as a result of a late and dangerous tackle by D (for which the D was sent off).
Held: if a player fell below the standards of care reasonably expected of those taking part in a game, he would be liable to anyone injured as a consequence.

Question 25

Sporting events - spectators

Answer 25

A spectator does NOT assume the risk of negligence on the part of the players, but providing they are playing within the rules and with adequate skill, a spectator cannot expect the players to have regard for her/his safety.
This is not a case of volenti – merely that the D is not in breach of duty.

Question 26

Murray v Harringay Arena 1951 (spectators example)

Answer 26

Here a 6 yr old boy was hit in the eye by an ice hockey puck at match. There was protective netting at either end, but not around the sides – where the boy was sitting.
Held: The Ds had taken all reasonable precautions and the danger not foreseeable. D not liable.

Question 27

Sport generally

Answer 27

All sporting cases will turn on whether the D was acting reasonably and the nature of the game –
Spectators at a lawn bowling match would not expect to be struck by the ball. Whereas spectators at, e.g. cricket or football matches, will know that the ball frequently leaves the field of play and may hit a spectator.

Question 28

Drunken Drivers

Answer 28

Accepting a lift from a drunken driver will not normally give rise to volenti –
Unless the driver is so drunk and so obviously so that it would be clearly imprudent to accept a lift.
Two contrasting results in the next two cases.

Question 29

Road Traffic Act 1988

Answer 29

Prevents drivers relying on volenti in circumstances covered by compulsory third party insurance (i.e. driving a motor vehicle on a road).
This does not apply to vehicles not covered by the Act (bicycles, planes, boats).
The Act does not affect claims of contributory negligence which will arise when travelling with drunken drivers (20% reduction)

Question 30

Rescue cases

Answer 30

Here the good Samaritan dies or is injured trying to effect a rescue. Can the D argue that this was a voluntary acceptance of the risk?
‘No’ said the court in Haynes v Harwood - the case where a PC was injured trying to stop a runaway horse from injuring others

Question 31

Baker v T E Hopkins & Son (rescue example)

Answer 31

Here a petrol engine was installed down a well that the D company had been employed to clean out. It quickly became apparent that the exhaust fumes were dangerous.
Next day 2 employees went down the well and were overcome by fumes. A doctor attempted a rescue and was himself overcome. All 3 died.
held that it was a natural & probable result of the D’s negligence that a rescue would be attempted, so volenti did not apply to the doctor.

Question 32

Volenti details

Answer 32

Some people attempt a rescue instinctively, but others think first. Volenti will not apply in either case.
However, there does need to be some actual emergency, failing which volenti will apply.
In Cutler v United Dairies – a horse had run free, but was in a field out of harm’s way when C went to assist the milkman who was trying to pacify the horse, which was still restive. The horse reared and C was injured.
Held – volenti applied – no damages.

Question 33

2 reasons why volenti does not apply to rescuers

Answer 33

• A rescuer may act under the impulse of a legal, social or moral duty. As such there is no true consent.
• Rescuers do not assent to the D’s negligence and may be unaware of it. All they know is that someone needs rescuing.