Tort Law - Defences to Negligence Flashcards
Petrol station, Wild West
Yachuk v Oliver Blais
Evans LJ in Revill v Newberry
One thing to deny gains from illegal conduct, but another to deny compensation for personal injury
What judge in what case stated that the last opportunity doctrine was now inappropriate after LR(CN)A?
Denning in Jones v Livox Quarries
Law Com 2009 Consultation Paper
Insufficient flexibility and discretion so broad it would be uncertain for illegality defence to go on statutory footing
Adams v Lancashire and Yorkshire Railway judgment
CN, bc not in situation which ‘obliged him to adopt alternative of a dangerous leap or to remain at certain peril’
What did Atiyah highlight about CN reductions?
D is usually insured, but C’s CN is usually personally borne, means negligent people do not pay for consequences but CN people do
Helicopter
Morris v Murray
Baker v TE Hopkins judgment
No CN - judge situation from rescuer’s point of view
Pitts v Hunt general
Motorcycle drunk
Latin phrase for voluntary assumption of risk
Volenti non fit injuria
In what case did the ECJ say compensation can only be limited in ‘exceptional circumstances’, appearing to complicate CN?
Candolin v Pahjola
Woolridge v Sumner judgment
No application of volenti
Churchill v Wilkinson
Thought CN reduction fell within Candolin, and thus no breach of EU law
L&O on Froom guidelines and EU law
May be inconsistent with Motor Insurance Directive
Why is the case of Canterbury Medical Council v Taylor doubted?
Only risk of injury need be accepted for volenti, not injury itself
When were the recommendations by the Law Revision Committee 8th Report enacted?
1945
Why couldn’t C claim future earnings in Hewison v Meridian Shipping PTE?
Would have only got future earnings if he had continued with the deception
What judge in what case stated that it is one thing to deny gains from illegal conduct, but another to deny compensation for personal injury?
Evans LJ in Revill v Newberry
Social security benefits, joint purchase
Tinsley v Milligan
Glofcheski on Pitts v Hunt
They refused to set the standard, showing judicial abstention
Case on impossibility of ascertaining standard of care for illegality defence
Pitts v Hunt
What did LJ Diplock focus on in Woolridge v Sumner?
Reasonable acts of reasonable person in D’s situation, ignoring C’s consent or lack thereof
What judge in Vellino v Chief Constable of Greater Manchester applied illegality under FJR limb - one of many factors?
Sedley LJ
Why has the defence of illegality developed more in recent years
Elimination of the volenti defence for motor vehicle accidents
What did the court in Apotex highlight there is no need to assess?
Significance of illegalit
Translation of ex turpi causa no oritur actio
No action arises from a disgraceful cause
What academic required two strands of knowledge for volenti defence?
Jaffey
What two cases showed that volenti does not operate if C’s act was one which D had a DoC to prevent?
Kirkham v Chief Constable of Greater Manchester; Reeves v MPC
What are the two possible scenarios for the volenti defence?
Express agreement D will not sue C if the risk materialises into an injury, or implicit in situation that C agrees to the risk
How many people, at the time of Froom v Butcher, did not wear their seatbelt?
75%
What two strands of knowledge does Jaffey require for volenti defence?
C fully aware of possibility of negligence, and fully ware of facts making it likely D would commit specific act of negligence
What two cases show that if CN was not available for actions prior to 1945, not available after Act either
Pritchard v CoOp and Standard Charters Bank v Pakistan Shipping
Butterfield v Forrester general
Pole, horse, ‘riding violently’
To what do the courts look in order to ascertain implied agreement?
C’s conduct
To what torts does the illegality defence apply?
All torts generally
What did Denning say on application of causation in Jones v Livox?
Changed after LR(CN)A - last opportunity doctrine now inappropriate
Pritchard v CoOp general
Manager hit
Why does Buckley favour Hounga v Allen?
Openness and pragmatism
‘No court will lend its aid to a man who founds his cause of action on an immoral or an illegal act’
Homan v Johnson
Lord Reid in Staple v Gypsum Mines
Consider two factors in particular for apportionment in CN - relative fault of D and C, and causal potency of each party’s contribution
Jones v Livox Quarries on causation
Distinction between linked events and that which is ‘no more than part of the history’
Jackson v Murry general
Car hit pedesterian
Shot firers, brothers
ICI Ltd v Shatwell
Law Com 2001 Consultation Paper
Suggested illegality defence go on statutory footing, with ‘structured discretion’
Interlocutory injunction loss, manufacturing illegal
Les Laboratoires Servier v Apotex Inc
Afternoon drive, more drunk
Dann v Hamilton
Drug addict, bunkbed, withdrawal
St George v Home Office
Why did Tinsley v Milligan reject public conscience test?
Defence is not discretionary
What did the minority argue for apportionment of CN in Corr v IBC?
0%
Joyce v O’Brien judgment
If you enter into a criminal act increasing risk to injury, and are injured, the law regards your criminal act as causing your injury
What was the apportionment of CN in Corr v IBC?
20% because he had some choice (albeit distorted)
When did LJ Diplock say there would be no application of volenti in Woolridge v Sumner?
If DoC stems solely from Donoghue’s ‘neighbourliness’ principle (foreseeability of injury)
Woolridge v Sumner general
Horse competition, photographer
What kind of language did Lord Pearce use in ICI Ltd v Shatwell?
Contractual
Baker v TE Hopkins general
Two workers, well, doctor
Shed shot
Revill v Newberry
What judge in Morris v Murray showed concern that the more drunker a D, the better their legal position with regard to volenti?
LJ Fox
Hounga v Allen judgment
Public policy approach
What modern case shows a radical, open-ended approach to illegality defence?
Hounga v Allen
Jones v Livox Quarries on standards of care for CN
Degree of care a reasonable person would take
What judge in what case adopted a ‘public conscience’ test in minority for illegality defence?
Beldam LJ in Pitts v Hunt
What judge in Gray reasoned through inconsistency?
Rodger
What academic favours Hounga approach?
Buckley
What English case suggests CN apportionment under Froom falls within Candolin?
Churchill v Wilkinson
Name two cases which explore the standard of care expected to avoid CN when D’s negligence created an emergency
Adams v Lancashire and Yorkshire Railway; Baker v TE Hopkins
Morris v Murray judgment
Volenti applied
Les Laboratoires Servier v Apotex Inc on illegality defence generally
Lord Sumption claimed illegality is more ‘judicial abstention’ than a defence
S.1 LR(CN)A
CN is not a complete defence, allowing reduction if partly C’s own fault or partly fault of others
Yachuk v Oliver Blais judgment
No expectation they would exercise care for their own safety - only 7 and 9
Who refashions the volenti defence as an assessment of P’s conduct?
Tan
What did Denning MR say in Gough?
Child could never be liable for CN, and older only if to BLAME for failing to take precautions
What are the two ingredients for volenti in implied situation?
Knowledge + implied agreement
Famous quote from Dann v Hamilton
‘Intermeddling with an unexploded bomb or walking on the edge of an unfenced cliff’
Lexi Holdings v DTZ Debenham
LJ Briggs showed Hoffmann’s approach is not a ‘universally applicable test’
Name at least three approaches to illegality defence
Criminality irrelevant, impossibility of ascertaining standard of care, relevant to FJR and reliance test
Why did volenti not apply in Corr?
Suicide not truly voluntary due to clinical depression
Candolin v Pahjola judgment
ECJ said compensation can only be limited in ‘exceptional circumstances’
What case enforced that to apportion CN, judges must balance out ‘strands of policy’ to reflect state responsibility AND personal autonomy
Reeves v MPC
Froom v Butcher on apportionment
Per Lord Denning, benchmark for ‘classic’ cases at 25% for protective devices at least
What is interesting about the finding of C’s mental health in Reeves v MPC?
Found to be of sound mind, and thus act WAS voluntary and well-considered
Dann v Hamilton general
Afternoon drive, more drunk
What case expressly rejected public policy required reassessment of Froom guidelines because of increase awareness in importance of protective devices
J v Wilkins
Dissenting judge in Vellino v Chief Constable of Greater Manchester
Sedley LJ
ICI Ltd v Shatwell judgment
Volenti applied - SF knew the risk
What case rejected public conscience test?
Tinsley v Milligan
How did Lord Reid characterise someone who deliberately and knowingly disobeys orders, running a risk?
Not negligence at all - volenti defence
What judge in what case stated that one person at fault does not ‘dispense with another’s using ordinary care for himself’?
Lord Ellenborugh CJ in Butterfield v Forrester
Medical treatment, boxing
Watson v British Boxing Board
What judge in what case asked if the child could be to BLAME for failing to take precautions?
Denning MR in Gough v Thorne
What standard COULD have been applied in Pitts v Hunt?
Nettleship v Weston Ordinary reasonable driver
Candolin v Pahjola general
Compensation denied in Finland
What two cases show a reasonable person test to avoid CN reduction is based on what one OUGHT to do, not what the majority DO do
Smith v Finch; Froom v Butcher
St George v Home Office considered what would have happened if CN had applied - what was their decision?
No reduction whatsoever because C in state facility who knew of his addiction
Motorcycle drunk
Pitts v Hunt
What did the judges in Revill v Newberry consider illegality relevant for?
Contracts
Standard Charters Bank v Pakistan Shipping general
Misrepresented shipping date, pay price
Hewison v Meridian Shipping PTE general
Seafarer, epilepsy, deception
Who said that the judgment in Corr showed ‘no understanding of the effect of serious depression’
O’Sullivan
Latin phrase for illegality
Ex turpi causa no oritur actio
What does turpitude mean?
Wrongfulness
What kinds of acts can give rise to a claim for contributory negligence?
Intentional AND negligent acts of C
Dillon LJ in Pitts v Hunt
Need sufficient causal connection between illegality and injury for illegality defence
Gray showed law developing along recommendation lines, so no legislative reform needed
Law Com 2010
Kirkham v Chief Constable of Greater Manchester judgment
Not of sound mind so damages, and volenti doesn’t apply if act of C was one which gave D DoC
Jones v Livox Quarries general
Riding on back of quarry truck
ICI Ltd v Shatwell general
Shot firers, brothers
What is insufficient for the volenti defence to operate?
Mere knowledge
Whose approach in Pitts v Hunt was closest to Hoffmann in Grey v Thames Trains?
Dillon LJ
What judge highlighted how C in Corr was not truly voluntary because of psychiatric illness?
Bingham
What academic strongly criticised Corr v IBC judgment on CN?
O’Sullivan
What is apportionment for CN under s.1 LR(CN)A?
Reduction as far as it is fair and equitable to reflect their contribution
What judge in what case gave the two factors considered in particular to apportion under s.1 LR(CN)A?
Lord Reid in Staple v Gypsum Mines
What case showed the manipulation of causation test to get the desired outcome in illegality defence?
Joyce v O’Brien
What does the case of Smith v Finch show about standards of care required to avoid CN?
Focusing on what reasonable person OUGHT to do - no interest in how many wore helmet
Name at least two cases where illegality was matched with reliance test
Hewison v Meridian Shipping PTE; Tinsley v Milligan; Gray v Thames Trains
Why was the claim on lost earnings rejected in Gray?
Inappropriate for tort to displace criminal penalty on narrow ground of illegality defence
Beldam LJ in Pitts v Hunt’
Public conscience test
Tinsley v Milligan general
Social security benefits, joint purchase
What did the trial judge recognise in Jones v Livox Quarries?
Only risk created by C’s CN was that of being thrown off, and therefore being hit with another vehicle was unforeseeable
What did Lord phillips argue in Gray?
Illegality doesn’t apply if D’s behaviour is not WHY he was ordered into the institution, e.g. because insanity defence
Case rejecting illegality defence by saying criminality irrelevant
Revill v Newberry
Smith v Finch general
Cyclist without helmet
Pitts v Hunt
Doubted court could order 100% reduction in respect of C’s negligence
What did Jackson v Murray say about blameworthiness in CN?
That of motorist tends to be higher if between motorist and pedestrian, due to potential to cause damage
Hobbled donkey
Davies v Mann
Homan v Johnson illegality defence definition
‘No court will lend its aid to a man who founds his cause of action on an immoral or an illegal act’
What case doubted court could order 100% reduction respect of C’s negligence?
Pitts v Hunt
Smith v Finch on causation
Would have made no difference so no CN
Gray v Thames Trains general
Ladbroke trains, PTSD, stabbing
Froom v Butcher on causation
It is to C’s DAMAGE, not to the original accident - C need not have contributed to the original accident at all
St George v Home Office general
Drug addict, bunkbed, withdrawal
What case gave a definition of ‘emergency’ to avoid CN reduction?
Adams v Lancashire and Yorkshire Railway
How was Dann distinguished in Morris?
Morris was a lot more extreme, and social convention at play in Dann - hard for C to extricate herself without giving offence
Kirkham v Chief Constable of Greater Manchester general
Suicide, police custody
What judge in Gray reasoned through causation?
Hoffmann
St George v Home Office judgment
Negligence too remote in ‘time, place and circumstance’
What case showed that each case is face-dependent for standard of care expected to avoid CN
Galbraith’s Curator v Stewart
Corr v IBC Vehicles on volenti
Did not apply
What judge in Gray v thames Trains called Tinsley unhelpful in tort?
Hoffmann
What section of what Act stated volenti no longer a defence to motor vehicle accidents?
S.149 Road Traffic Act 1988
Volenti non fit injuria
Voluntary assumption of risk
What judge in what case stated illegality is more ‘judicial abstention’ than defense?
Lord Sumption in Les Laboratoires Servier v Apotex Inc
Name a case which explores the standard of care expected from children to avoid CN
Yachuk v Oliver Blais; Gough v Thorne; Galbraith’s Curator v Stewart
Why is there no need to assess significance of illegality in illegality defence?
Narrow version is automatic, and wider is just a question of causation
What is a disadvantage of the reasoning in Joyce?
Artificial and against orthodox causation
What Report recommended legislative change to apply admiralty rules on apportionment based on CN?
Law Revision Committee 8th Report
‘Intermeddling with an unexploded bomb or walking on the edge of an unfenced cliff’ CASE
Dann v Hamilton
Adams v Lancashire and Yorkshire Railway general
Door of train carriage
Ladbroke trains, PTSD, stabbing
Gray v Thames Trains
Morris v Murray general
Helicopter
What two situations were required for volenti to operate in Dann?
Obvious danger C chose to go into OR impliedly giving D permission to act carelessly
What did the Law Commission say was the best rationale for the illegality defence?
Consistency in the law
What academic highlighted how the judges in Pitts v Hunt refused to set the standard, not that it was impossible?
Glofcheski
Reeves v MPC general
Prison transfer, suicide
Pole, horse, ‘riding violently’
Butterfield v Forrester
What is there a parallel with in the case of Joyce?
CN cases - manipulating causation test to get desire outcome
Watson v British Boxing Board judgment
C accepted risk of injury caused by events in ring, but not risks following for inadequate/negligent provision of treatment
What two factors are considered in particular for apportionment in CN?
Relative fault and causal potency of each party’s contribution
What case applied illegality under FJR limb of Caparo
Vellino v Chief Constable of Greater Manchester
Galbraith’s Curator v Stewart
Each case is face-dependent for standard of care expected to avoid CN
What case shows within it that judges have a hard time determining CN apportionment?
Corr v IBC Vehicles
Why did L&O think Froom guidelines might be inconsistent with Motor Insurance Directive?
General and abstract criteria
From what case was the ‘last opportunity’ doctrine?
Davies v Mann
Hughes v Williams
Froom applies in failure to use appropriate restraints for children
Why was there CN reduction in Corr v IBC?
Retained SOME capacity and responsibility - recognised value of personal autonomy
What judge in what case focused on reasonable test of D, instead of acts of C to imply acceptance of risk, in order to ascertain breach of duty for volenti?
LJ Diplock in Woolridge v Sumner
Hepple and Matthews on ICI v Shatwell
If D had been C’s senior, and told C to do it, would have been harder to show risk acceptance
What judge in ICI Ltd v Shatwell used contractual language to ascertain implicit agreement to risk for volenti?
Lord Pearce
Canterbury Medical Council v Taylor
Australian cases suggest genuine belief risk will not materialise removes volenti defence
L&O on Corr
Can it sensibly be said C is guilty of CN for very act D was supposed to prevent?
Woodley v Met District Railway general
Side wall, railway, tool
How did Tan refashion volenti defence?
Assessment of P’s conduct
Tinsley v Milligan judgment
Claim is barred if C needs to rely on facts disclosing illegality
Who referred to social convention in Morris v Murray to explain Dann?
LJ Fox
Name a case exploring relationship between breach of duty and volenti defence?
Woolridge v Sumner, Tomlinson v Congleton BC and Watson v British Boxing Board
With what EU law instrument did L&O suggest Froom might be inconsistent?
Motor Insurance Directive
When did they state the illegality defence does not apply in Hounga v Allen?
If illegality is solely background, collateral information
Suggested illegality defence go on statutory footing, with ‘structured discretion’
Law Com 2001 Consultation Paper
What were the two claims in Gray v Thames Trains?
Lost earnings whilst in institution, and loss in earning capacity
What case made it clear that causation for CN is as to C’s DAMAGE, not the original accident
Froom v Butcher
Hewison v Meridian Shipping PTE JUDGMENT
Recover for pain and suffering, but not future earnings
Admiralty Commissioners v Volute general
Equal apportionment in admiralty under statute
What case showed that LR(CN)A s.4 does not allow interpretation which applies CN as a defence where it wasn’t available prior to 1945?
Standard Charters Bank v Pakistan Shipping
Yachuk v Oliver Blais general
Petrol station, Wild West
What case highlighted how tort is trying to compensate for injuries, so illegality defence is irrelevant?
Revill v Newberry
Why did Rodger reject Hoffmann’s causation analysis in Gray?
Doesn’t explain why D is liable no further than X point
Tomlinson v Congleton BC judgment
Occupiers of recreational land can assume anyone using the land recreationally accepts inherent risks
What case by the ECJ complicated the area of CN?
Candolin v Pahjola
Revill v Newberry judgment
Illegality not relevant as trying to compensatee for injury
Who highlighted that the outcome would likely have been different in ICI v Shatwell if D had been C’s senior?
Hepple and Matthews
What judge in what case emphasised that Hoffmann in Gray is not a ‘universally applicable test’?
Lexi Holdings v DTZ Debenham LJ Briggs
What case shows Australia removes volenti defence if genuine belief risk will not materialise?
Canterbury Medical Council v Taylor
Butterfield v Forrester judgment
CN applied - one person at fault does not ‘dispense with another’s using ordinary care for himself’
Equal apportionment in admiralty under statute
Admiralty Commissioners v Volute
Why do L&O argue Froom is not inconsistent with Motor insurance Directive
Requires ‘disproportionate’ limitation or exclusion for breach of EU law - 25% reduction is hardly disproportionate
What case shows Froom applies in failure to use appropriate restraints for children?
Hughes v Williams
S.149 Road Traffic Act 1988
Volenti no longer defence to motor vehicle accidents
What case relied and built on Occupiers’ Liability Act 1984 in illegality
Revill v Newberry
Watson v British Boxing Board general
Medical treatment
What is the narrow version of illegality?
No claim to compensate for loss resulting from criminal sanction
What is the wide version of illegality?
No claim to compensate a consequence of C’s own criminal conduct
Manager hit
Pritchard v CoOp
Who highlighted how the lack of insurance, usually, on the part of C means they pay for CN reduction, whilst D is usually insured
Atiyah
Smith v Baker
By end of 19th century, knowledge insufficient
Reeves v MPC on HOW to apportion CN
Balance out ‘strands of policy’ to reflect state responsibility AND personal autonomy
Vellino v Chief Constable of Greater Manchester general
Windows
Jackson v Murray judgment
There is no precise figure for CN
What case showed the courts rejecting the last opportunity rule, apportioning liability in proportion to degree of fault under statute?
Admiralty Commissioners v Volute
Pritchard v CoOp judgment
CN not available for battery prior to 1945, so not after either
Revill v Newberry general
Shed shot
Insufficient flexibility and discretion so broad it would be uncertain for illegality defence to go on statutory footing
Law Com 2009 Consultation Paper
Two recent conflicting cases on illegality defence
Hounga v Allen; Laboratoires Servier v Apotex
Misrepresented shipping date, pay price
Standard Charters Bank v Pakistan Shipping
Swimming
Tomlinson v Congleton BC
What case stated that there is no precise figure to apportion damages under CN?
Jackson v Murray
Hounga v Allen general
Harassment and immigration
Why did volenti apply in Dann v Hamilton?
Developing situation and not clear enough that she agreed
What is an advantage of Tan’s approach to volenti?
Allows adaptation according to social policy
Pitts v Hunt judgment
JOINT illegal activity made standard hard to ascertain
What judge in what case for causation made a distinction between linked events and those which are ‘no more than part of the history’?
Denning in Jones v Livox Quarries
What did LJ Salmond say in Gough v Thorne?
Compared C’s actions with reasonable person of same age and gender
What two cases should be compared to show case-by-case CN apportionment leads to uncertain results?
St George v Home Office; Reeves v MPC
Why would it have been problematic for the court in St George v Home Office to acknowledge that certain background characteristics did contribute to his injury?
Medical negligence - C partly responsible for being harmed in the first place, necessitating medical treatment
Standard Charters Bank v Pakistan Shipping JUDGMENT
Defence of CN not available for tort of deceit prior to 1945, so not under LR(CN)A either
J v Wilkins
Expressly rejected public policy required reassessment of Froom guidelines because of increase awareness in importance of such devices
Gough v Thorne general
13 1/2 year old, brothers, lorry
Froom v Butcher general
Seatbelt
What case shows knowledge meant assent in middle 19th century, and thus volenti defence?
Woodley v Met District Railway
Corr v IBC Vehicles judgment on CN
CN to recognise value of personal autonomy
Harassment and immigration
Hounga v Allen
What judge in what case suggested illegality might be outweighed by other factors, making the defence inappropriate?
Vellino v Chief Constable of Greater Manchester Sedley LJ
Gough v Thorne judgment
No CN because adults in control
O’Sullivan on Corr
Judgment showed ‘no understanding of the effect of serious depression’
Buckley on illegality defence
Favours Hounga
Who highlighted how, in Corr, they held C guilty of CN for the very act D was supposed to prevent?
L&O
Davies v Mann judgment
Focus on who had the last opportunity to avoid the damage
How does breach of duty fit under volenti?
Assumption of risk means that C’s injury does not constitute a BoD
Les Laboratoires Servier v Apotex Inc general
Interlocutory injunction loss, manufacturing illegal
Gray v Thames Trains judgment
wide and narrow version of illegality - both failed
Les Laboratoires Servier v Apotex on CoA approach
Policy approach wrong and contrary to Tinsley v Milligan
What distinction did Lord Reid make in ICI Ltd v Shatwell?
Individuals deliberately and knowingly disobeying, and carelessness
Seafarer, epilepsy, deception
Hewison v Meridian Shipping PTE
What judge in what case stated the volenti defence is objective?
LJ Stocker in Morris v Murray
Why was the claim on loss in earning capacity rejected in Gray?
Causation and inconsistency
Tomlinson v Congleton BC general
Swimming
In what case did the court fail to recognise they could adjust damages to reflect relevant contribution, instead just applying CN as done before LR(CN)A?
Yachuk v Oliver Blais
Woodley v Met District Railway judgment
Knowledge meant assent in middle 19th century
What was the status of CN prior to 1945?
Complete defence
Reeves v MPC judgment
HoL said inconsistent to allow defence of volenti to arise upon act which D had DoC to prevent
What is an example of an intentional act of C giving rise to CN claim?
Reeves v MPC
What is the express agreement volenti scenario now govern by?
UCTA and UTCCR
What is the requirement of causation for CN?
C’s carelessness is a legal cause of the damage, and not too remote
Vellino v Chief Constable of Greater Manchester judgment
Illegality is a freestanding defence - criminal offence of evading arrest so no claim
Davies v Mann general
Hobbled donkey
What case showed that by the end of the 19th century, knowledge was insufficient for the volenti defence?
Smith v Baker
Corr v IBC Vehicles general
Disfigurement, clinical depression, suicide
Joyce v O’Brien general
Ladder, footplate
Law Com 2010
Gray showed law developing along recommendation lines, so no legislative reform needed
What does the case of Froom v Butcher show about standards of care required to avoid CN?
Not looking at what MOST people do, but what they OUGHT to do
Why did volenti apply in Morris?
C was only merry - very much aware
Ladder, footplate
Joyce v O’Brien
