Negligence: General Defences

Question 1

Law Reform (Contributory Negligence) Act 1945

Answer 1

s. 1(1) provides that contributory negligence is no longer a complete defence; rather, the Court has to perform a balancing act as to decide who is to blame for what proportion.
s. 2 provides that in order to work out the proportion, etc. of the claim, we need to know what the overall claim would have been in the first place. Only then can we reduce the amount awarded according to C’s contributory negligence.
s. 4 provides that the concept of ‘fault’ is defined as “negligence, breach of statutory duty, or other act or omission which gives rise to a liability in tort or would, apart from this Act, give rise to the defence of contributory negligence.”

Question 2

Froom v Butcher (1976)

Answer 2

This was the first case to properly reference the 1945 Act. C suffered an injury in a car accident. He was not wearing a seatbelt due to his dislike of them; moreover, he thought that he had seen accidents occur and the driver has remained trapped due to wearing one. It was established C suffered worse injuries due to not wearing a seatbelt; however, the accident was entirely caused by C.

Lord Denning states that “negligence depends upon a breach of duty, whereas contributory negligence does not. Negligence is a man’s carelessness in breach of duty to others. Contributory negligence is a man’s carelessness in looking after his own safety. He 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” (p. 291). He thus provides a general point on what we mean by ‘contributory negligence’.

Moreover, damage has to be reduced in this case because contributory negligence refers to the damage, not the accident itself. Since the damage was partly caused by not wearing a seatbelt, C is partly liable (p. 292); damages reduced by 20%.

Remember, we are not asking who caused the accident here: we are asking who is at fault for the damage that has been suffered.

Question 3

Pitts v Hunt (1991)

Answer 3

C was riding on the back of the driver on the motorcycle. Both were drunk. C knew that the driver did not have a licence and was uninsured. The motorcycle collided with a car driven by the second D; C suffered severe injuries (first D here being the motorcycle driver).

The judge at First Instance held that C and the rider were 100% responsible for their injuries.

CoA held that the claim failed on the basis of legality (ex turpi causa + public policy); but it doesn’t make sense to say that you are 100% contributory negligent (in reference to the Act, which specifies that contributory negligence is only engaged when there are 2+ parties at fault).

Question 4

Corr v IBC Vehicles (2008) [also seen in the Legal Causation deck]

Answer 4

The first argument proposed in this case was: Does C’s willing act break the chain of causation? HoL said no, as the reason he committed suicide was due to depression caused by D’s negligence.

The second argument proposed was: Even if the chain is not broken, does C’s decision to jump equate to contributory negligence? The majority held that there was no reduction in damages (due to unease as to whether one can attribute blame to a depressed man). See Lord Walker, discussing the relative fault of the parties: “in applying this test the court has to have regard both to blameworthiness and to what is sometimes called causal potency [how ‘powerful’ was each party’s fault?]” [44].

Lord Scott dissents on this point of contributory negligence, arguing that “if the act of jumping in disregard for the safety of others would have constituted fault for tort purposes, it is difficult to see why that same act of jumping with the deliberate intention of terminating his own life should not also be so regarded. If, in jumping, Mr Corr had both injured someone else and also himself, it would seem to me highly anomalous to hold him liable in negligence in an action by the third party but not guilty of fault for contributory negligence purposes so far as his own injuries were concerned” [31].

Question 5

St. George v Home Office (2008)

Answer 5

C was addicted to drugs/alcohol, and sentenced to prison. When he arrives he tells them of his addictions and of epileptic seizures that occur when he goes through withdrawal. Despite being told of this possibility, the prison officers still assigned C to an open dormitory + top bunk. C had a seizure which causes him to fall and bash his head severely. Suffered a series of further injuries, including severe brain damage. Sues HO.

HO raises the defence of contributory negligence (you allowed yourself to become addicted to drugs/alcohol). CoA rejects this argument –> not a “potent cause”; “too remote” (Dyson LJ at [56]).

Importance of the language of ‘causative potency’: it has to be fault that results in damage, and we assess whether it results in damage by analysing how sufficiently connected the fault is to the damage.

Question 6

Phethean-Hubble v Coles (2012)

Answer 6

Whether age is relevant depends upon the facts here. We have to look at the circumstances and ask whether being a child makes a difference regarding the question of standards expected (in being aware of one’s own e.g. safety).

C here was 16; was not wearing helmet/had no lights on when riding a bike. D was driving the car just over the speed limit, and in the same direction as C was cycling. C comes off footpath into the main road at an angle –> collision. Judge at First Instance: would usually be a 50/50% split, but because C was 16 reduction was reduced to 1/3

CoA states that this was not justifiable: there was nothing particular about C’s age that would reduce responsibility based upon these facts (Black LJ at [86]).

Question 7

Jackson v Murray (2015)

Answer 7

It is rare that the SC takes a different view in terms of the facts (e.g. attribution of blame) vs. lower courts: but an example shown here.

Two girls got off the bus in the evening. One of them steps onto the road without looking in the path of a car. The driver had been going too quickly and saw the bus beforehand (but didn’t think kids would be getting off). The girl suffered severe injuries as a result of the crash.

The judge at first instance held that girl was 90% responsible for the accident. CoA reduced it to 70%; Supreme Court 50%. SC emphasised their reluctance in interfering with these issues but makes an exception here. Lord Reed writes that no apportionment can be “demonstrably correct”, and that it is usually a “somewhat rough and ready exercise” [27-8]. He goes on to state that: “…the causation of the injury depended upon the combination of the pursuer’s attempting to cross the road when she did, and the defender’s driving at an excessive speed and without keeping a proper lookout. If the pursuer had waited until the defender had passed, he would not have collided with her. Equally, if he had slowed to a reasonable speed in the circumstances and had kept a proper lookout, he would have avoided her” [40]. This shows the difficulty of assessing contributory negligence.

Question 8

Co-operative Group Ltd. v Pritchard (2011)

Answer 8

C worked at Co-op; the record of attendance usually good. One day, she didn’t feel well but the manager said she should come in nevertheless. C and her sister decided to go in and remonstrate with the manager. The manager refuses to let her have a day off. Shouting/swearing ensued. Manager asked her to leave premises; D declined, and the manager took her by the arm to take her off shop. A struggle occurred, leading to C stumbling on a step outside - resulting in injury.

Psychiatric symptoms/other injuries from the struggle. But equally, she had behaved very provocatively here. Sues Co-op in trespass.

The Court refers to s. 1(1) and 4 LR(CN)A 1945, which implies that the Act is only applicable to claims involving contributory negligence that would have previously failed (back when contributory negligence was a complete defence). In other words, the aim of the legislation was to grapple with the ‘complete defence problem’, and should not be utilised in cases where you simply disapprove of C’s conduct (referring to the purpose of the Act, set out in s1(1)). As such, contributory negligence is not a defence to trespass torts, assault, or battery (Aikens LJ at [62]). Consequently, the CoA held that it was not possible to reduce C’s damages, even though she was partly at fault for the incident. Smith LJ ‘reluctantly’ agrees with Aikens at [82], saying that Parliament needs to intervene to allow this partial defence to be raised in relation to battery cases; it has not yet done so.

Question 9

Morris v Murray (1991)

Answer 9

This case illustrates the complete defence of assumption of risk/volenti non fit injuria.

C was a passenger and D the pilot. Both were very drunk and went flying. Following an accident, C suffers injury and D dies; the claim is brought against his estate. They had matched each other pint for pint. Fox LJ writes that “if it is evident to the passenger from the first that the driver is so drunk that he is incapable of driving safely, the passenger must have accepted the obvious risk of injury” (p. 15).

Question 10

The Road Traffic Act 1988

Answer 10

s. 149 - Avoidance of certain agreements as to liability towards passengers:

(1) This section applies where a person uses a motor vehicle in circumstances such that under section 143 of this Act there is required to be in force in relation to his use of it such a policy of insurance or such a security in respect of third-party risks as complies with the requirements of this Part of this Act.
…
(3) The fact that a person so carried has willingly accepted as his the risk of negligence on the part of the user shall not be treated as negativing any such liability of the user.

This provides basically that the defence of volenti does not apply in road accident cases. Consequently, defendants here rely upon the defence of contributory negligence (of course, this does not apply to planes…).

Question 11

ICI v Shatwell (1965)

Answer 11

Men worked at the quarry. C was responsible for explosives that would blast open chunks of rock. Workmen have been told that there was a particular safety procedure to follow. C and brother thought they knew better, but caused an explosion which led to severe injuries.

Held here that because C and his brother were experienced and knew of the regulations, they could not sue their own employers. They willingly assumed the risk of injury because they had full knowledge of the situation, etc.

Question 12

Osborne v London & North Railway Co. (1888)

Answer 12

The plaintiff was injured by falling on steps leading to the
defendants’ railway station, which the defendants had allowed to be
slippery and dangerous. There was no contributory negligence on
the part of the plaintiff, but there were other steps which he might
have used, and he admitted that he knew that the steps were dan-
generous, and went down carefully holding the handrail.

Bowen LJ writes: “The maxim, be it observed, is not - “scienti (to one who knows) non fit injuria”, but - “volenti” (to one who is willing). It is plain that mere knowledge may not be a conclusive defence. There may be a perception of the existence of the danger without comprehension of the risk: as where the workman is of imperfect intelligence, or, though he knows the danger, remains imperfectly informed as to its nature and extent” (p. 222).

This case thus emphasises the two-tiered structure of this defence: firstly, that the plaintiff shall have full knowledge of the nature and extent of the risk (as shown in this case); second, that he shall freely and voluntarily incur it.

Question 13

Baker v Hopkins (1959)

Answer 13

This case provides an illustration of the willing assumption of risk.

The defendant firm was contracted to clean a well. Well was about 50 foot deep. In order to clean a well, you have to get some of the water out. The men were given a pump to pump water out. The pump was petrol-powered, and thus gave out fumes. If you put fumes down a confined space, you basically have a giant exhaust pipe. Workmen were down the well cleaning the well when they passed out. When discovered, a doctor was called to help them. The doctor is the claimant here: he sees the men are struggling and decides that he has to act quickly to help them. Ties rope around the waist and jump inside the well; he too passes out. Subsequent claim brought against men’s employers. The argument raised was that the doctor knew of the risk (Tragically the doctor and two other men died in hospital).

The CoA held that the defence of assumption of risk could not be established here; it did not pass the ‘volenti test’: there had to be a voluntary assumption of the risk (knowledge of risk is not enough). Morris LJ writes: “If C, actuated by an impulsive desire to save life, acts bravely and promptly and subjugates any timorous over-concern for his own well-being or comfort, I cannot think that it would be either rational or seemly to say that he freely and voluntarily agreed to incur the risks of the situation which had been created by A’s negligence” (p. 976).

Question 14

Reeves v Commissioner of the Police of the Metropolis (2000) [also seen in the Legal Causation deck]

Answer 14

Suicide case (death in custody).

It is very rare that you have a duty to protect someone from self-harm, but this case exemplifies an exemption (Lord Hoffmann at p. 368)

The police did not have the option to rely on the volenti defence as the whole point of their duty towards C was to prevent him from committing suicide; Lord Hoffmann further links this to police: “[W]hatever views one may have about suicide in general, a 100% apportionment to Mr Lynch gives no weight at all to the policy of the law in imposing a duty of care upon the police. It is another different way of saying that the police should not have owed Mr Lynch a duty of care” (p. 372).

Question 15

Orange v CC of West Yorkshire (2001)

Answer 15

Following on from Reeves, this case proves to show that not every case of suicide in custody leads to liability.

The widow and PR of Paul Orange sued the Chief Constable following the former’s suicide in a police cell. He was not a known suicide risk.

It was held that:

1. A custodian owed a duty to take reasonable care for the health and safety of the person in custody.
2. There was an increased risk of suicide amongst prisoners.
3. That did not mean that suicide was a foreseeable risk in relation to every prisoner.
4. It was neither fair, just or reasonable to impose on the police a general obligation to treat every prisoner as a suicide risk.
5. The generally increased risk of suicide amongst prisoners obliges the custodian to identify whether or not a prisoner presented a suicide risk.
6. The obligation to take reasonable care to prevent a prisoner from taking his own life deliberately only arose when the custodian knew or ought to have known that an individual prisoner presented a suicide risk. On the facts, the deceased was not a person to whom the police officers owed a duty of care to prevent him from taking his life deliberately.

Question 16

Unfair Contract Terms Act 1977

Answer 16

UCTA s.2 protects consumers from the exclusion of liability defences regarding death/personal injury, and perhaps even other loss or damage (dependant upon reasonableness)

s. 2: Negligence liability -
(1) A person cannot by reference to any contract term or to a notice given to persons generally or to particular persons exclude or restrict his liability for death or personal injury resulting from negligence.

(2) In the case of other loss or damage, a person cannot so exclude or restrict his liability for negligence except in so far as the term or notice satisfies the requirement of reasonableness.
(3) Where a contract term or notice purports to exclude or restrict liability for negligence a person’s agreement to or awareness of it is not of itself to be taken as indicating his voluntary acceptance of any risk.

Question 17

Consumer Rights Act 2015

Answer 17

CRA s.65 is very similar to UCTA s.2; especially s.2(3) of the latter and s.65(2) of the former (regarding the voluntary acceptance of risk). Offers a high standard of protection by effectively inhibiting any exclusion of liability defences.

s. 65: Bar on exclusion or restriction of negligence liability -
(1) A trader cannot by a term of a consumer contract or by a consumer notice exclude or restrict liability for death or personal injury resulting from negligence.

(2) Where a term of a consumer contract, or a consumer notice, purports to exclude or restrict a trader’s liability for negligence, a person is not to be taken to have voluntarily accepted any risk merely because the person agreed to or knew about the term or notice.
(3) In this section “personal injury” includes any disease and any impairment of physical or mental condition.

Question 18

Holman v Johnson (1775)

Answer 18

This case provides a famous quote regarding the defence of illegality. Lord Mansfield states that:

“No court will lend its aid to a man who founds his cause of action upon an immoral or an illegal act. If, from the plaintiff’s own standing or otherwise, the cause of action appears to arise ex turpi causa, or the transgression of a positive law of this country, there the court says he has no right to be assisted. It is upon that ground the court goes; not for the sake of the defendant, but because they will not lend their aid to such a plaintiff” (p. 343).

Question 19

Gray v Thames Trains (2009) [also seen in the Legal Causation deck]

Answer 19

Physical injuries + PTSD case (Mr Gray ends up killing a man).

Whilst deciding against C, Lord Hoffmann writes that the illegality (ex turpi causa) defence is a form of ‘policy control’ which prevents “someone from obtaining compensation for the consequences of his own criminal act” [24]. Such a policy decision is “not based upon a single justification but on a group of reasons, which vary in different situations” [30].

Lord Rodger emphasises that inconsistencies should be remedied; in this case, ensuring that the criminal and civil law courts are ‘on the same page’ in “the way they regard what the claimant did… Failure to do so would generate the sort of clash between civil and criminal law that is apt to bring the law into disrepute” [77]. Thus, C was not able to recover from the civil law at the very moment he committed an act of killing. Lord Brown agrees on this point of consistency, arguing that it is intrinsic to the “integrity of the justice system… the common law cannot at one and the same time incarcerate someone for his criminality and compensate him civilly for the financial consequences” [93].

Question 20

Tinsley v Milligan (1994)

Answer 20

This is a trusts case that also deals with illegality.

Miss Tinsley sought possession of a house that was solely in her name. Her relationship with her partner, Miss Milligan, had come to an end.
Miss Milligan had been living there and had contributed to the purchase price. However, it had solely been bought in Tinsley’s name, as a way of claiming more in social security. Milligan later repented and confessed to the benefit fraud. Tinsley subsequently moved out and sought possession of the house, arguing she was solely entitled. Miss Milligan pleaded that it was the common intention that the property should belong to both of them (and so did not need to rely on the illegality).

The HoL held that because Miss Milligan could invoke the presumption of a resulting trust without relying on the illegal purpose, she did have a share in the house. Miss Tinsley would have to rely on her intention to defraud the social security system to rebut the presumption of a resulting trust and get the property in her own name.

Curiously the House of Lords treated the sole question to be answered as one of illegality in relation to the contract - despite the central plan being to make fraudulent claims for social security payment. None of the judgments considered withholding the equitable remedy on the basis of the ‘clean hands doctrine’ (“those seeking equity must come with clean hands”).

This ‘reliance test’ vis-a-vis illegality has been criticised; the Law Commission advocated for its abolition via legislative intervention in 2010.

Question 21

Delaney v Pickett (2011)

Answer 21

C and D were involved in a car accident (C was the passenger). When they were rescued, it was discovered that they had drugs on them. It was argued by D that claim should fail as they were drug dealers. However, there was no suggestion that they were under the influence whilst driving.

It was held that there was no relevant connection between the illegality and tortious conduct (Tomlinson LJ at [73]). The illegality was thus just a ‘background event’ that was incidental to the tortious act.

Question 22

Joyce v O’Brien and Tradex Insurance Co. (2013)

Answer 22

C was injured whilst riding in the back of a van driven by D. They decided to steal a couple of ladders but these were too big for the van. The only way to escape was for C to hang on the back of the van, holding the door open, keeping ladder in place

On those facts, it was held that the illegality defence did apply. The illegal act was not ‘incidental’ in the circumstances.

Question 23

‘The Judicial Schism’ regarding the Illegality Defence:

Hounga v Allen (2014) - 5 Justices
Les Laboratoires Servier v Apotex (2014) - 5 Justices
Jetivia Anor v Bilta (2015) - 7 Justices
Patel v Mirza (2016) - 9 Justices, leading authority

Answer 23

SC considered the defence of illegality 4 times in 2 years: a judicial ‘schism’ between those who want to apply hard rules vs. flexible approach.

Hounga: discrimination claim by a woman who had been brought illegally into the country; held that the claim was not barred.

Servier: 1) illegality must generally be criminal 2) Lord Sumption took a restrictive approach. Did not engage with Hounga at all.

Jetivia: Seven Justices decided to not decide it ‘properly’…

Patel v Mirza: now leading authority. Nine Justices attended, and the judicial schism is shown via the fact that there was a 5:4/6:3/5:1:1:2 split as to the reasoning.

Question 24

Patel v Mirza (2016)

Answer 24

Friends agreed to insider trading at a poker evening. D was aware that there would be an announcement that would affect the share price of RBS. Bets placed as to how the shares would move. C transferred £600,000 for bets.

BUT announcement never came and bets never placed. D declines to give money back.

An agreement was reached that the money transferred was illegal. SC was unanimous in holding that C can get his money back. Reasons why are varied. The majority judgement relied upon a flexible approach to the illegality doctrine; what we should do is look at what the point of the defence is. Lord Toulson believes that this ‘essential rationale’ is “that it would be contrary to the public interest to enforce a claim if to do so would be harmful to the integrity of the legal system (or, possibly, certain aspects of public morality, the boundaries of which have never been made entirely clear and which do not arise for consideration in this case)” [120].

He goes on to establish the ‘key test’ as to when the public interest has been ‘harmed’:

a) one must consider the “underlying purpose of the prohibition which has been transgressed and whether that purpose will be enhanced by the denial of the claim,”
b) one must consider whether “any other relevant public policy on which the denial of the claim may have an impact”, and
c) one must consider “whether denial of the claim would be a proportionate response to the illegality, bearing in mind that punishment is a matter for the criminal courts” [120].

Lord Toulson further writes that within this framework, “various factors may be relevant, but it would be a mistake to suggest that the court is free to decide a case in an undisciplined way. The public interest is best served by a principled and transparent assessment of the considerations identified, rather by than the application of a formal approach capable of producing results which may appear arbitrary, unjust or disproportionate” [120]. In other words, he advocates for a flexible (over a more rigid) approach.

Tinsley v Milligan seems to have been departed from, with Lord Toulson regarding the criticisms of that case as “well-founded” [114].

Lord Mance, in his minority judgement, worries that Lord Toulson’s framework ushers in an era where Courts have to make non-legal, ‘value judgements’ regarding the merits of the case and the public interest [206].

Question 25

Henderson v Dorset NHS Trust (2018)

Answer 25

C suffered from underlying disorders but was badly treated by the NHS Trust. She ended up killing his mother whilst undergoing an episode of the condition.

C sought to sue the NHS Trust for the consequences of failing to take care of her.

The Courts, whilst analysing Patel, state that the case expressly disapproves of Tinsley, but that Gray remains binding. Moreover, they hold that you do not have to ‘start’ from Patel: older authorities are relevant in the analysis (except those overruled by implication of Patel) [81]; [87]; [89]; [91].