Negligence - defences

Question 1

Illegality (full defence) (4)

Answer 1

• Due to C’s illegal conduct, they are unable to receiver compensation – this relieves D of liability
• Holman v Johnson
  o No court will lend its aid to a man who founds his cause of action upon an immoral or illegal act
• National Coal Board v England
  o D must establish causal connection between C’s wrongful conduct and the harm suffered by C – have to prove C brought harm upon themselves
• Pitts v Hunt
  o Judges exercise discretion when determining whether or not to accept the defence
  o 2 Ds travelling on uninsured motorcycle – driver unlicensed and driving reckless – collides with another vehicle. 1 D is killed and other injured. Injured D brings claim of negligence against deceased D. Claim fails as judge accept illegality defence
  o Allowing C to bring claim of compensation against the other boy on motorcycle would be contrary to parliament’s intention to promote road safety through road traffic legislation
• Henderson v Dorset Health University NHS Foundation Trust
  o C paranoid schizophrenic stabbed mother to death
  o Applied Patel trio of considerations for illegality defence
  1. The underlying purpose of the prohibition which has been transgressed
  2. Public policies which may be rendered ineffective or less effective by denial of the claim
  3. Application of the law with a due sense of proportionality

Question 2

Criticisms of illegality defence (3)

Answer 2

1. Kirkham v Chief Constable of Greater Manchester Police
   o Defence is based on considerations of public policy – compensating C would be shocking to public or send out undesirable signal to criminals
   o Illegality defence is too broad – not confined to criminal conduct as embraces conduct that would ‘shock’ an ordinary citizen (Nayyar v Denton Wilde Sapte)
2. Goudkamp (academic)
   o Broadness of illegality defence contradicts rule of law – invites law to behave in unpredictable and incoherent ways
3. Jackson v Harrison
   o C’s participation in criminality makes it impossible for judges to specify a standard of care

Question 3

Justifications of illegality defence (5)

Answer 3

1. Deterrence (Clunis v Camden and Islington Health Authority)
2. Retribution (people given their ‘just deserts’)
3. Maintaining integrity of legal system (Revill case, Weir)
4. Outlawry – if people fail to behave in conformity with laws requirements, they have put themselves beyond protection of the law (Hervey)
5. Consistency (Gray v Thames trains, Hall v Herbert)

Question 4

Consent (full defence) (9)

Answer 4

• Voluntary agreement
  o C must voluntarily agree to run the relevant risk
  o Bowater v Rowley Regis Corporation
• Knowledge
  o C must have full knowledge of the relevant risks
  o Woolridge v Sumner
  o Test of knowledge is subjective – Smith v Austin Lifts
• Consent in employment context
  o Nettleship v Weston
   Restricted availability of consent defence to protect vulnerable workers – there is inequality in bargaining power between employer and employee
  o ICI v Shatwell
   Workers ignored safety procedures of employer when handling explosive chargers. Were injured – workers knew the relevant risks of ignoring safety procedures so consented to their harm – could not sue employer
   This was cautious decision, but where judges see blatant disobedience they will intervene
• Consent in road traffic context
  o Section 149(3) Road Traffic Act 1988
   Consent defence excluded
  o Morris v Murray
   C and D drinking – go for flight in D’s aircraft – C injured in plane crash and D killed. C sued D’s estate
   C was merry but not drunk, voluntarily agreed to his own risk knowing driver had consumed alcohol – could plead consent defence - this is different to motoring cases
• Consent and sporting activities
  o Gleghorn v Oldham
   Sport is inherently risky but consent could yield defence where D’s conduct goes beyond normal rules of game
   Golfer hit spectator with club while demonstrating stroke
  o Cf Simms v Leigh Rugby League Football Club
   Rugby league player thrown against wall in tackle – contact sports are inherently risky so consented to this harm
• Consent and rescuers
  o Baker v T.E. Hopkins
   Doctor seeks to rescue 2 of D’s employees from a well – doctor overcome with fumes and dies. D argues NAI – rejected by CofA
   Judges make effort to foster community where people who willingly rescue someone are rewarded for their actions – reluctant to deny someone compensation to people who attempt to rescue someone

Question 5

Contributory negligence (partial defence) (6)

Answer 5

• Multiple responsibility – responsibility is bore by more than one person
• Just and equitable apportionment of loss – large amount of judicial discretion
• Law Reform (Contributory Negligence) Act 1945 s1(1)
  o Where C’s damage arises partly from his or her own fault and partly from D’s fault, courts are required to apportion responsibility for the losses
• Serves as general deterrence
  o We are all responsible for our own actions
• Nance v British Columbia Electric Railway
  o Contributory negligence is ‘a shield against plaintiff’s claim’
• D must establish
  1. Fault on C’s part (applying reasonable person standard
  2. Factual and legal causation
• Froom v Butcher
  o If a passenger in car fails to wear seatbelt, D may plead contributory negligence
  o Guidelines:
  If injury would have been prevented altogether, C’s damages should be reduced by 25%
  If injuries would have been less severe, a 15% reduction should be made
• Stapley v Gypsum Mines
  o The question of contributory negligence must be determined by applying common sense to facts of each case
  o Strong judicial discretion
• Jones v Boyce
  o C leapt from horse-drawn carriage as was being driven carelessly and believed was in physical danger. Broke leg leaping from carriage. Believed D bore responsibility for injuries
  o Courts recognise C may have to act in agony of the moment but have to distinguish this from acting unreasonably
• Corr v IBC Vehicles
  o Corr seriously injured at work – developed PTSD and depression – took his own life
  o Employer held liable for suicide – tried to argue contributory negligence as C took own life
  o No blame could be attached to C so contributory negligence not appropriate – corrective justice (D at fault so blame must be imposed on D)
  o Steele – attaching blame to C would be distasteful
  o Lord Scott (dissenting) – Corr at fault for taking own life so suggested 20% contributory negligence

Question 6

Contribution (partial defence) (2)

Answer 6

• Circumstances in which claimant has suffered harm due to faultiness of two or more wrongdoers
• The Civil Liability (Contribution) Act 1978
  o Any person liable in respect of any damage may recover contribution from any other person liable in respect of the same damage
  o Decisions on the amount of contribution should be just and equitable
• Relevant concerns – causal responsibility and degree of fault
• Fitzgerald v Lane
  o Address question of contributory negligence first and then address contribution
  o C walked briskly on to pelican crossing when lights were against him – was struck first by D1 travelling south and then by D2 travelling north on crossing
  o All three parties equally to blame – C’s damages reduced by 1/3 under 1945 Act (Contributory negligence)
  o 1978 Act was applied after – each of D’s had to pay half of resulting sum (contribution)