Tort

Question 1

Tort problem question

Answer 1

1. Name of C and D
2. C can consider suing D for [name of harm] in the tort of [name of tort]
   (identify nature of loss)
3. Explain what C has to prove
4. Go through element of the tort and apply law to facts
5. Consider the defences
6. Decide on liability/remedies based on facts

Question 2

Definition of tort

Answer 2

Essentially means wrong

• infringement of a legal right or breach of a legal duty
• burden of proof on C; burden of defence on D
• C must prove on the balance of probabilities

If the harm falls ouside that recognised by the existing law then C’s claim will fail unless C convinces the court to change the existing law (Wilkinson v Downton [1897])

• Bradford Corporation v Pickles* [1895] - C’s reservoir had water partly stored in D’s land. D sank drainage wholes, which diminished water flow for C. C sought injunction to prevent D continuing to do this. D was also requiring payment to desist. Held that D had legitimately used his owned land and had not caused harm protected by tort. Improper motive was irrelevant.
• Osman v Ferguson* [1993] - public policy argumens may preclude a negligence claim against police.
• Van Colle v Chief Constable of Hertfordshire Police* [2008] - claim brought agains police for breach of article 2 of ECHR rather than negligence. However, it was not successful.

Question 3

Defamation

Answer 3

• when a person dies any claim survives except defamation
• limitation of liability is one year
• protection of reputation vs freedom of speech
• *Libel:** defamation in a permanent form
• actionable per se
• *Slander:** is libel in some transient or temporary form
• requires proof of tangible loss
• *Defamation Elements:**
• D’s words are defamatory (judge decides if capable)
  
  • tend to lower C in the eyes of society (Sim v Stretch [1936]) and/or
  • cause C to be shunned/avoided (Youssoupoff v MGM (1934) and/or
  • they expose C to hatred, contempt, ridicule (Parmiter v Coupland (1840)
  • must be taken in proper context to decide if defamatory (Charleston v News Group Newspapers [1995]
• Words refer to C
  
  • J’Anson v Stewart (1787) - if C not named, test was whether description was so detailed and resemblance so strong that a reasonable person reading the article would assume it was about C. -> not necessary for D to intend statement to refer to C.
• words have been published
  
  • does not mean in a formal sense - only communicated to a 3rd party (not privately)

Each repetition is new cause of action, thus scope potentially wide with many people involved in publication

• *Defences:**
• justification - if statement/facts true -> complete defence
• fair comment
• qualified privilege

Question 4

Trespass to the person

Answer 4

Assault
Battery
False imprisonment

Letang v Cooper [1964] - both assault and battery require intentional conduct. If not (careless), the tort should be negligence.

C must prove D’s tort caused his loss and that the loss is not too remote

Defences

• Consent
• Lawful arrest
• Defence of the person (self-defence)
• Defence of property
• Necessity
• Contributory negligence

Question 5

Negligence

Answer 5

Negligence is the breach of a legal duty to take care owed by D to C that results in damage, undesired by D, to C.

• Duty of care
• Breach of duty
• Causation
• Defences
• voluntary assumption of risk
• illegality
• excluding liability
• contributory negligence
• defending
• Contribution between tortfeasors

Question 6

Contribution between tortfeasors

Answer 6

2 or more persons liable for same damage. C can sue any or all to recover full amount of loss (can’t recover more than once).

Civil Liability (Contribution) Act 1978 - D1 may recover from any other person (D2) liable for the same damage. Court may apportion blame between D’s but does not affect amount given to C. Even if D1 is 10% to blame and D2 90%, C can get full amount from D1.

Question 7

Limitation Act 1980

Answer 7

Limitation of liability generally 6 years from when the cause of action arises.

• Defamation is an exception and a claim must be brought within one year of publication; personal injury is three years from date of injury
• if C is under 18 the time for limitation doesn’t start until the child is 18

Question 8

Vicarious liability

Answer 8

When an employee commits a tort in the course of employment, the employer may also be sued

Question 9

Assault

Answer 9

Tort of trespass to the person

Intentional act causing another to reasonably apprehend immediate infliction of battery

• intentional conduct by D
• reasonable apprehension by
• of an immediate infliction of battery

Words alone can be assault (R v Ireland [1998]) but can also take away the threat of an immediate battery

Question 10

Battery

Answer 10

Tort of trespass to the person

Intentional direct application of unlawful force to another.

• actionable per se - C need not prove tangible physical harm
• exception: generally acceptable contact in ordinary conduct of every day life (F v West Berkshire HA [1989])

Intention -> must not intend the consequences, only the act (Wilson v Pringle (1986))

Direct-> force must flow almost immediately and without intervention. -> D needn’t make physical contact but use another medium (eg gun) as long as it is controlled by D

Question 11

Wilkinson v Downton [1897]

Answer 11

D told C that husbad had been badly injured in an accident though not true. C suffered severe shock that induced vomiting and other serious physical consequences. It was outside any tort cause of action but the court created a new one.

The basis for the cause of action (rule of Wilkinson v Downton) was that D intended to cause shock to C who suffered tangible damage as a result

• > tangible is recognised illness or injury (not actionable per se)
• > considered in Wainwright v Home Office [2004]

Question 12

Wainwright v Home Office [2004]

Answer 12

C was strip searched when visiting a prison. This caused distress and upset them, for which they sought a remedy. C argued Wilkinson v Downton.

HoL rejected their claim and confirmed that no cause of action unless damage was medically recognised.

Also argued that right to privacy had been violated.

(could have relied on Protection from Harassment Act 1997 as well for tort of harassment)

Question 13

Consent Defence

Answer 13

volenti non fit injuria

General defence

Trespass to the person:
If C expressly or impliedly consented to D’s act then D will not be liable in trespass to the person. (usually medical or sports)
-> Condon v Basi [1985] - sports competitor consents not only to all conduct within the rules but also which may fall outside the rules but which is nonetheless within the spirit of the particular sport.

Chatterson v Gerson [1981] - not real if induced by a misrepresentation; a doctor’s failure to disclose risks with intended treatment does not invalidate consent so no trespass against the person (but maybe negligence - Chester v Afshar)

Question 14

Lawful arrest defence

Answer 14

If police officer lawfully arrests someone pursuant to a valid warrant using reasonable force, they do not commit tort of battery.

Question 15

Defence of the Person

Answer 15

Commit an assault/battery defending yourself from attack (self defence).

• > Cockcroft v Smith (1705) - to use this D must establish:
  a. force must be used in self defence not as retaliation
  b. force must be reasonable
  c. force must be proportionate to that used or threatened by C

May extend to defending another but no case guidance.

Question 16

Defence of property

Answer 16

D may take reasonable steps to defend his property, including eject a trespasser (maybe first asking to leave: Green v Goddard (1702)).

Little case guidance re defending property of another.

Question 17

Necessity defence

Answer 17

General defence (usuall trespass to the person)

D must show that a situation of necessity exists and his actions were reasonable in all the circumstances.

• F v West Berkshire Health Authority* [1989] - medical treatment without consent:
• an emergency situation where the patient is unconscious
• a state of affairs (temp or perm) rendering the patient incapable of giving consent (eg stroke, mental incapacity).
• also extends beyond medical staff (eg bystanders)
• must be in best interest of patient: life-saving, to ensure improvement, or prevent deterioration

Question 18

Contributory negligence

Answer 18

Partial defence

general defence

Co-operative Group Ltd v Pritchard [2011] - contributory negligence is not available as defence to claims in trespass to the person. (Lane v Holloway [1968] suggests otherwise but is older)

Question 19

Defamation defences

Answer 19

1. Justification - if statement/facts true -> complete defence

2. Fair Comment:

a. an expression of opinion, as opposed to fact;
b. on a matter of public interest (London Artists Ltd v Littler [1969]); and
c. fair (Telnikoff v Matusevitch [1991]) - honest comment (supported in Spiller v Joseph [2010])
- > otherwise malice (defeats defence but difficult for C to prove)

3. Qualified Privilege

• > applicable to facts and opinions
  - > maker of statement has a duty to make the statement and the recipient has interest in receiving the information
  - > Reynolds v Times Newspapers Ltd [2001] - duty will only be where the subject mater is serious, story well-researched and balanced, and person is given opportunity to comment

Question 20

Duty of Care (negligence)

Answer 20

Legal duty to take care for the person who is injured.

Established duty situations

Novel Duty Situations

• Donoghue v Stevenson
• Caparo test

Duty of care likely not owed for:

• public bodies
• omissions
• pure economic/psychiatric loss

Question 21

Established duty situations (negligence)

Answer 21

• One road user to another (driver/cyclists to others, including passenger) (Upson)
• doctor to patient
• employer to employee
• manuacturer to consumer (Donaghue v Stevenson)
• tutor to tututee/teacher to pupil
• where D’s actions have created a dangerous situation, so that a rescue is reasonably foreseeable, D owes duty of care to resucuer (Baker v Hopkins [1959])

Question 22

Novel Duty Situations (negligence)

Answer 22

1. Neighbour principle

Donoghue v Stevenson [1932]:
(manufacturer owes duty of care to ultimate consumer)

Criteria to determine if duty of care in novel situations:

a. reasonable care to avoid acts or omissions you can reasonably foresee would likely injure your neighbor
b. proximity of relationship (reasonably in contemplation)

2. Neighbor principle refined (Caparo test)

Caparo Industries plc v Dickman [1990]

Duty of care if:

a. reasonable foresight of harm to C
b. sufficient proximity of relationship between C and D
c. fair, just and reasonable to impose a duty

Question 23

Caparo Test

Answer 23

Caparo Industries plc v Dickman [1990]

Duty of care if:

a. reasonable foresight of harm to C (foreseeability)
* Bourhill v Young* [1943] - shock caused by witness to accident not reasonably foreseeable (no damages)
b. sufficient proximity of relationship between C and D

due to insufficient proximity duty of care limited for:
- omissions
- pure economic loss
- pure psychiatric harm
(See duty of care likely not owed)

c. fair, just and reasonable to impose a duty
* Marc Rich v Bishop Rock Marine Co Ltd* [1996]

C’s valuable cargo lost when ship sank. C sued owner and ship inspectors. HoL held inspector did not owe duty to cargo owners. Not fair, just and reasonable to impose duty because the society was non-for-profit and only operated to assist safety at sea. (Foreseeability and proximity satisfied in this case)

Question 24

Police Cases (negligence)

Answer 24

• Hill v Chief Constale of West Yorkshire* [1989] - police do not owe a duty of care to any individual but to public at large (failure to apprehend criminal & no threat to specific person)
• Kirkham v Chief Constable of Greater Manchester Police* [1990] - police had assumed responsibility towards the prisoner - greater proximity.
• Osman v UK* (1999) - CoA held police owed no duty to a claimant they knew was being harassed by a 3rd party. (ECourtHR found blanket immunity for police violated Art 6 of ECHR as restriction to court)
• Z v UK* (2002) - Overturned ECourtHR’s original comment on the Art 4 and 6 violations of police and negligence (test of fair, just, reasonable and policy consideration do not infringe on human rights).
• Von Colle v Chief Constable of Hertfordshire Police/Smith v Chief Constable of Sussex* [2008].

Question 25

Duty of care and policy

Answer 25

• Floodgates - if one case succeeds, it will open hundreds of similar cases
• Deterrence - courts fell in order to deter other, they should rule for C
• Resources - aware that damages often funded by insurers, who will potentially raise premiums. Additionally, if D has no insurance.
• Public benefit - beneift to the public as a result of the decision
• Upholding the law - uphold legal rules despite public criticism.

Question 26

Duty of care likely not owed

Answer 26

where harm caused:

• by public body (eg local authority, police - see police cases)
• by omission to act
  
  • general rule - no liability for omissions (Stovin v Wise [1996] - highway authority knew junction was dangerous but did nothing)
  • exeption: D has special relationship with C (Home Office v Dorset Yacht Co Ltd) - see Positive Acts
• is pure psychiatic injury

is pure economic loss

Question 27

Positive acts

Answer 27

if acted but not obligated:

• East Suffolk Rivers Catchment Board v Kent and another* [1940] - C’s land flooded and D, though not obligated repaired wall but it took a long time to repair, during which C’s land remained flooded.
  - > HoL held no liability in tort, even if careless (unless you make matters worse) - guilty of omission.
  - > same argument for rescuers

Occasions where there is a duty to act positively:

• -if a person has some sort of power or control over the other person or object (special relationship: eg employer employee, parent child, etc

may also have duty to take positive action to prevent harm being caused to third parties (eg driving teacher)

• Home Office v Dorset Yacht Co Ltd [1970] - HoL held was duty of care because they should have seen harm to yacht when officers failed to supervise boys with criminal records. Officers had control over the boys. (Better to sue Home Office than boys (£))
• Smith v Littlewoods Organisation Ltd [1987] - HoL held no duty owed. Too wide if occupier held responsible for damaged caused by 3rd party (vandals) to neighbor’s property, when he had no control over 3rd party. Vandals started fire in D’s property which spread to C’s.
• Carmarthenshire County Council v Lewis [1955] - After 4 year old strayed into street, driver swerved and died trying not to hit it. C (wife) sued council who ran nursery. Hold authority owed duty to prevent child harming third parties

Question 28

Breach of Duty

Answer 28

C must show D must be at fault by failing to come up to the standard required by law for fulfilling the duty.

• How D ought, in the circumstances, to have behaved (standard of care, question of law)
• Did D’s conduct fall below the required standard (question of fact)

Standard of Care:
Blyth v Birmingham Waterworks (1856) - D must meet the standard of the reasonable person (objective test).

Question 29

Standard of care (breach)

Answer 29

Standard of Care

Blyth v Birmingham Waterworks (1856) - D must meet the standard of the reasonable person.

Ordinary reasonable person test (objective test)
- in D’s position (eg skilled, child, disabled)

Skilled:

• Bolam v Friern Hospital Management Committee [1957] - same degree of skill as a reasonable doctor (applies to all special skills)
  
  • > supported by a reasonable body of porfessional opinion - not negligent
• Bolitho v City and Hackney Health Authority [1997] - in some cases it cannot be demonstrated that the body of opinion relied on is reasonable or responsible. Court could still find negligent.

Under-skilled:

• Wells v Cooper* [1958] - even for odd jobs, a certain minimum level of skill expected (eg reasonably competent amatuer capenter). If out of depth, negligent for trying.
• Nettleship v Weston* [1971] - learner driver must reach the standard of the reasonably competent driver.
• Wilsher v Essex Health Authority* [1987] - a junior doctor on his first day must come up to the standard of a reasonable doctor. He should call for assistance when necessary (as in this case).

If D presents himself a a specialist, he will be expected to meet that higher standard.

Children:

Mullin v Richards [1998] - standard of care expected is ordinary child of same age. (only age adjusted not maturity) The younger the less likely able to foresee harm.

Question 30

Determining standard of care

Answer 30

Risk created by D vs precautions D ought reasonably to have taken in response

Magnitude of risk:

Likelihood and impact: the higher, the more precautions required

• Bolton v Stone* [1951] - only six cricket balls out of the ground in 28 years with no injury (not likely)
• Miller v Jackson* [1977] - cricket balls hit out of ground eight or nine times per season, damaging C’s property on several occasions (more likely)
• Paris v Stepney Borough Council* [1951] - D knew C blind in one eye, so injury to the other much more serious impact for not wearing goggles. (higher impact)

Precautions:

Cost/practicability: low cost of implementation or highly practical, more likely breached duty. The greater the risk of injury, the less weight attached to cost of eliminating risk.

Latimer v AEC Ltd [1953] - D’s decision not to close down section of factory reasonable given small risk high cost of closure.

Defendant’s Purpose:

If D’s behavior is in the public interest, less likely liable for negligence

Watt v Hertfordshire County Council [1954] - if human life at stake, D may be justified in taking abnormal risks. However, D can still be liable for taking undue risks (eg running traffic light)

Common Practice:

D may escape liability if they can show they complied with accepted practice in trade/profession. (Bolam)

Re The Herald of Freee Enterprise (1987) - common practice of setting sail without checking doors was negligent, though common practice.

Current State of Knowledge:

Roe v Ministry of Health [1954] - whether risk of injury foreseeable must be judged in light of the knowledge available at the time of the event.

Question 31

Limitations on reasonable (standard of care)

Answer 31

Fordon v Harcourt-Rivington [1932] - D left dog in car and the dog broke window. C blinded by shard of glass. => fantastic probability - D not liable

Exception: Carmarthenshire CC v Lewis [1955] - still reasonable possibility though unlikely (4 year old caused driver to swerve)

• Mansfield v Weetabix* [1998] - sudden impairment - not liable if no knowledge of impairment.
• Waugh v James K Allen* [1964] - driver with sudden heart attack not liable if no knowledge

Question 32

Proving breach of duty

Answer 32

C must prove on balance of probabilities

*Usually use witnesses

Res Ipsa Loquitur (the thing speaks for itself): inference of negligence based on circumstances of damages

Scott v London and St Katherine Docks Co (1865) - C injured by sugar walking under hoist of D’s warehouse. No witnesses. Three conditions must be met:

• the thing causing damage under control of D or 3rd party D is responsible for
• accident must be such as would not normally happen without negligence
• the cause of the accident is unknown to C - C has no direct evidence of any failure by D to exercise reasonable care.

Raises prima facie inference of negligence against D who must provide reasonable explanation of how it occurred without negligence. D can show:

• how the accident actually happened, not due to negligence or
• though he doesn’t know how it happened, he had at all times used reasonable care.

Civil Evidence Act 1968 (s11):

If D is convicted of the criminal offence, it is presumed to have committed the civil offence. (evidence careless conduct did take place)

Question 33

Causation of damage (negligence)

Answer 33

Burden on C to prove causal link between breach and loss.

• Causation in Fact
• But for test
• modified tests: material contribution/increase in risk
• where more than one cause:
  
  • divisible - will be apportioned
  • not divisible - can obtain in full from any D based on CL(C) A 1978
• consecutive injury - difficult to establish but will be proportional
• No intervening Acts
• actions of a 3rd party
• actions of C
• Damage not too remote
• basic rule
• similar in type rule
• egg shell skull rule
• No defences
• voluntary assumption of risk
• excluding liability
• contributory negligence
• defending
• contribution between tortfeasors

Question 34

Causation in Fact

Answer 34

But for:

Barnett v Chelsea & Kensington Hospital Management Committee [1969] - Breach of hospital not actual cause of death (arsenic was) and hopital could not prevent death

But for D’s breach, would harm have occurred?
=> Yes, no causation

All or nothing:

Hotson v East Berkshire AHA [1987] - fell from tree and medically treated negligently.
=> 75% chance of the same result despite treatment
-> did not satisfy balance of probabilities

• Wilsher v Essex AHA* [1988] - possible 5 causes for blindness of baby.
• > causation difficult to establish and C did not (retrial on question of causation)

Material contribution:

several causes together created harm

• Bonnington Castings Ltd v Wardlaw* [1956] - exposure to unmaintained equipment. Disease caused by 2 factors (unmaintained equipment (negl) and hammer dust (not negl)). Only needed to show that D’s breach materially contributed to harm -> succeeded in claim.
• McGhee v National Coal Board* [1973] - exposed to dust. Two causes of disease: during work day (not negl); after work on journey home (no washing facilities - negl). C could not show specifically which cause but HoL held that C did not need to show which only that D’s negligence materially increased risk of harm.

Proportional damages:

• Holtby v Brigham & Cowan (Hull) Ltd* [2000] - asbestos exposure over the years through various employers. Brought suit against one who argued he should only be responsible for a portion. Court agreed.
• > C would need to sue all to get full damages, only apportioned as it was over time.

Contribution between tortfeasors:

Civil Liability (Contribution) Act 1978 ss1(1) & 2(1)

• Gives court power to apportion damage between tortfeasors according to share of responsibility for damaage
• Does not affect amount of damages recovered by C:
• > can obtain full damages from one only (unlike Holtby)
• Fairchild v Glenhaven Funeral Services Ltd* [2003] - different employer over time exposure to asbestos; ruled all jointly liable
• Barker v Corus UK Ltd [*2006] - HoL held only liable for proportion of the damages

C injured more than once:

• injuries impact on each other
• Performance Cars v Abraham* [1962] - car damaged in area already damaged. D only liable to extent damage worse.
• Rahman v Area Rose Ltd* [2001] - in attach employer negligent causing physical injuries. Then hospital negligently treats C causing blindness in one eye. Also continuing psychiatric injury. Court held Employer liable for origial injuries, hospital for blindness, both for psych issues (proportionate damages).

Question 35

Chain of causation (intervening acts)

Answer 35

Novus actus interveniens (new intervening act)

Actions of a 3rd party:

Broad rule - chain of causation is unlikely to be broken by an action which D ought to have foreseen as a likely consequence of his negligence (eg medical negl unlikely to break chain)

• Scott v Shepherd* (1773) - threw lit firework nto crowd and others threw it away from themselves as an instinctive reaction => this did not break chain of causation
• Knightley v Johns* [1982] - D’s negligent driving blocked exit of tunnel. Police ordered constale to drive against traffic to close it and constable was hit/injured. D not liable as he could not foresee acts of police => chain broken
• Rouse v Squires* [1973] - lorry driver jack-knifed and blocked 2 lanes and a car hit the lorry. Another car stopped to help and a 3rd lorry negligently hit other vehicles. Held both lorries liable (both with material contribution) => chain not broken because 1st could have foreseen.
• Lamb v Camden London Borough Council* [1981] - Squatters damaged C’s house but borough not held liable.
• Stansbie v Troman* [1948] - D decorating houe and left for 2 hours. Told by C to ensure it was closed before he left. A thief came and stole jewelry. D liable as he had impliedly agreed to take reasonable care => chain not broken

Actions of claimant:

C’s act must be unreasonable to break chain.

• McKew v Holland & Hannen & Cubitts* (Scotland) Ltd [1969] - D’s negl weakened C’s leg. C fell and further injured. HoL held C acted unreasonably => chain broken
• Wieland v Cyril Lord Carpets Ltd* [1969] - C injured neck due to D’s negl. Neck collar made it hard to use glasses and C fell down stairs. Held chain not broken - C acted reasonably.

Question 36

Remoteness of damage

Answer 36

**Basic Rule: **

• Overseas Tankship (UK) Ltd v Morts Dock & Engineerin Co Ltd, (The Wagon Mound) (No 1)* [1961] (Privy council) - operated ship and employee negl allowed oil spill which ignited as C continued to weld. Held test for remoteness is reasonable foreseeability and this was not reasonably foreseeable.
• Cunningham v Reading FC* [1992] - a football club was liable for not taking steps to ensure that pieces of the concrete could not be ripped up and thrown at people. Held should have foreseen violence of football fans.

Similar in Type Rule:

• Hughes v Lord Advocate* [1963] - D’s employees left lamps unattended, which caused an explosion. Held that burning was foreseeable but not explosion. However, the result was similar in type, thus D held liable.
• Tremain v Pike* [1969] - C worked on D’s farm. C caught disease from rats. Injury not foreseeable (maybe rat bites but not disease). Held no damages => unusual/unexpected.
• Jolley v Sutton* [2002] - Child played with jack on a boat, which fell on him and broke his back. C liable as it was foreseeable that children would emulate adults as play.

Egg Shell Skull Rule:

‘you take victim as you find him’ => liable for full extent of harm, even if precise extent of damage not foreseeable.

Robinson v Post Office [1974] - C had injuries to leg from D’s negl. Doctor gave anti-tetanus shot causing an allergic reaction. C received damages for both injuries from D. => Medical treatment foreseeable as result of injury and D liable for consequences, those these not foreseeable.

Question 37

Defences to negligence

Answer 37

• voluntary assumption of risk
• illegality
• excluding liability
• contributory negligence
• defending

Question 38

Voluntary assumption of risk (negligence)

Answer 38

Nettleship v Weston [1971] - D must establish that C:

a. had full knowledge of both the nature & extent of risk, not just that there was some risk
b. willingly consented to accept risk

Consent:

• knowledge is not consent (sciens is not volens)
• Dann v Hamilton* [1939] - Drunk driver where C was passenger. C knew D was drunk but held knowledge was not sufficient to imply consent.

Later, Road Traffic Act 1988 s149 => defence of voluntary assumption of risk is never valid, specifically related to motor vehicles.

• Morris v Murray* [1990] - pilot obviously glaringly drunk. C was held to have accepted the risk.
• > Employer/Employee:

Defence rarely works with employers

• No real freedom of choice
• Risk of losing job
• Other work pressures
• Smith v Baker [1891] - load of stones dropped on C. Held C knew risk but didn’t consent.

=> Rescuers:

Act under moral compulsion. Not voluntary assumption if:

• Acting to resue persons/property endangered by D’s negl, and
• Acting under compelling legal, social, moral duty, and
• conduct was reasonable and natural and probable consequence of D’s negligence.
• Haynes v Harwood [1935] - policeman injured while rescuing - acted under complusion and not voluntary assumption

Rules on resucuers apply equally to professional and lay rescuers

Question 39

Illegality defence

Answer 39

ex turpi causa non oritur actio (no action arises from a disgraceful cause)

If C involved in illegal enterprise at time of injury, no liability.

Must be a close connection between illegal act of C and injury, so that damage directly caused by illegal act in such a way contrary to public policy to allow remedy.

• Ashton v Turner* [1981] - C escaping from burglary and D’s negl driving caused C injury. Defence of illegality upheld.
• Pitts v Hunt* [1990] (authority) - reckless driving causes C injuries. Not possible to determine appropriate standard of care for criminal. Inherent part of joint criminal enterprise.

Question 40

Excluding liability (negligence defence)

Answer 40

Through clauses/notices => eg ‘no liability is accepted for any loss’

Question 41

Contributory negligence (negligence)

Answer 41

Partial defence

• C must be careless and this contributes to damage
• Only C can be contributorily negligent.

Law Reform (Contributory Negligence) Act 1945 s 1(1)

Damage partly own fault and partly of another -> claim can’t be automatically defeated but damages reduced based on what court thinks is equitable

From case law -> culpability/relative blameworthiness; extent of C’s cause of damage. C needs to contribute to damage, not necessarily accident itself.

Reeves v Metropolitan Police Commissioner [1999] - C sued as a prisoner hanged himself in police custody. Prisoner deemed 50% to blame, so 50% of damages recoverable

Vehicles:

Froom v Butcher [1975] - lack of seatbelt = contributory negligence. Likely reductions:

• 25% reduction if C had injuries that would have been avoided with seatbelt
• 15% if injuries would have been less severe
• 0% if seat belt would’ve made no difference.
• Capps v Miller* [1989] - same reductions for seatbelts as helmets
• Cowens v Brimmell* [1997] - if passenger gets into car with drunk driver, damages will be reduced, even if passenger drunk. Self-intoxication no excuse

C’s Behavior:

If C fails to take reaonsable care for his own safety - measured against ordinary reasonable person in same classification

Children:

Can be contributorily negligent. The older the more likely, though measured agains ordinary child of C’s age. Child not identified with negligence of parents.

Gough v Thorne [1966] - 13 year old stepped out in road past lorry, so car did not see. Child blameworthy, as reasonably expected to take precautions.

Rescuers:

Baker v TE Hopkins & Son Ltd [1959] - rescuer judged against standard of reasonable rescuer, with an allowance made for emergency situations. Contributorily negligent only if rescuer had wholly unreasonable disregard for his own safety (rare).

Dilemma:

Injured trying to save himself due to situation caused by D’s negligence.

• Jones v Boyce* [1814-23] - Found action of C to save himself was reasonable, even thoug, with hindsight there may have been a better alternative.
• Sayers v Harlow UDC* [1958] - C trapped in public WC and tried to climb out and fell (weight on toiletpaper holder). Court found contributory negligence => method of escape unreasonable.

Workers:

Failure to follow instructions, use safety equipment may amount to contrib. negl. Worker must have been careless given circumstances.

Question 42

Defending examples (negligence)

Answer 42

• Corr v IBC Vehicles Ltd* [2008] - D caued injury to employee which led to suicide. D argued against liability for the suicide, as it was not foreseeable and too remote and that suicide was intervening act. D also argued that suicide was a voluntary act and contributory. All arguments failed.
• Gray v Thames Trains Ltd* [2009] - C injured in rail crash and had PTSD, then stabbed stranger to death (personality change). D argued not liable for killing. C sued for future earning, damages for conviction and future claims from victims family. D argued illegality for add’l earnings, conviction, future lawsuits. D’s illegality argument succeeded.
• St George v Home Office* [2008] - C was prisoner with drug issues and withdrawal induced seizures. He told officers but was put on top bunk. He fell 7-8 feet due to seizure and had head wound. Court held C at fault for becoming addicted but fault was too far removed from accident and true cause was D’s negligence. Even though at fault, not just/equitable to reduce damages.