Negligence: Defences Flashcards
Lecture 8
What is illegality/serious immorality? (ex turpi causa non oritur actio)
- Public policy based defence on idea that one cannot bring a claim arising from one own’s wrongdoing
- “Affront of the public conscience” {Pitts v Hunt}
- Ensuring consistency and coherence between civil/criminal branches of law {Gray v Thames}
- Benefitting in some respect from wrongdoing does not necessarily result in a conflict {Grondona v Stoffel}
What can we learn from the case of Gray v Thames Trains [2009]?
- Two trains collided on approach to Paddington -> negligence in terms of rail companies
- Claimant got into altercation with drunken pedestrian and stabbed him (claimed ptsd caused by rail company + sued)
- Held: found guilty of manslaughter
What can we learn from the case of Stoffel & Co v Grondona [2020]?
- Claimant obtained a mortgage by deception and incurred liabilities when solicitors negligently failed to register the transaction
- Solicitors argued whole transaction was tainted by illegality
- UKSC considerations: underlying purposes for barring claim + impeding other public interest objectives + disproportionate
What are alternative approaches to Ex turpi causa?
- No duty of care arising in first place {Pitts v Hunt}
- Causation perspective: can we simply say that the loss is the foreseeable consequence of the claimant’s own wrongdoing?
Describe the “safe-blowers” example in more detail.
- Group of bank robbers: safe blower is negligent by injuring colleagues
- What us the standard of the reasonably competent safeblower?
- However, courts will not engage in insidious inquiry (RC safeblower doesn’t exist, therefore no duty of care)
Provide other examples in which ex turpi causa may apply?
- Joint criminal enterprises {Ashton v Turner}
- Offenders injured victim in self-defence, but offender cannot be treated as an ‘outlaw’ {Revill v Newbury}
- Consequences of one’s own criminality {Gray v Thames Trains}
What is volenti non fit injuria?
- No harm is done to one whom consents
- Meaning of consent not clear (Diplock: “The consent that is relevant is not consent to the risk of injury, but consent to the lack of reasonable care that may produce that risk”)
What is the problem in express consent? (Volenti)
Nothing short of express contract waiving any claim in tort will suffice {Diplock in Woolridge v Sumner}
What are the problems in implied consent? (Volenti)
- Knowledge of danger insufficient for consent to be implied {Dann v Hamilton}
- Although contributory negligence may apply {Owens v Brimmell}
- Obvious and extreme dangers {obiter comments of Asquith J in Dann v Hamilton and COA decision in Morris v Murray}
- Road Traffic Act 1988: statutory exclusion of volenti defence in road traffic accidents
Provide background knowledge on contributory negligence.
- Once provided a complete defence {Butterfield v Forrester}
- “Last opportunity” approach {Davies v Mann}
- Statutory intervention (Maritime Conventions Act 1911, Law Reform Act 1945)
- Now provides a partial defence; damages reduced in correlation with defendant’s own fault
What are some elements of contributory negligence?
- Main: foreseeability of loss or injury to oneself
- Riding on the outside of motor vehicles (“Clunk Click”)
- Failure to use safety equipment {Froom v Butcher}
- Stepping into highway {Fitzgerald v Lane}
- Ignoring/overlooking obvious hazards {Jayes v IMI Kynoch}
(“Clunk Click”) What does Lord Denning say regarding seatbelts and contributory negligence in Froom v Butcher?
“The accident is caused by the bad driving. The damage is caused in part by the bad driving of the defendant, and in part by the failure of the plaintiff to wear a seatbelt.”
