Defences

Question 1

What does volenti non fit injuria mean?

Answer 1

• “To a willing person, injury is not done”

Question 2

What must a defendant prove to use volenti successfully? Is it a complete defence? Is knowledge of risk conclusive? What about consent given under pressure?

Answer 2

• Defendant must prove that the claimant had knowledge of the risk and willingly consented to accept that risk
• Complete defence
• It MAY be evidence of consent but won’t be conclusive
• Consent given under pressure will not amount to a defence

Question 3

Give three cases where the defence of volenti was used

Answer 3

• Smith v Baker (1891)
• Imperial Chemical Industries v Shatwell (1965)
• Kirkham v Chief Constable of Greater Manchester (1990)

Question 4

What happened in Smith v Baker (1891)? What did the defence say? What was held?

Answer 4

• Claimant worked in a quarry, told his boss that he was uncomfortable with the risky working conditions and then was later injured by falling debris from a crane
• Defence said volenti - the claimant had turned up to work every day and therefore was content to work in a dangerous job
• HELD - the claimant had not consented to work in a job where the employer was not maintaining the required standard of care and in the claimant’s case he was pretty much obliged to work in the quarry as he had no other options

Question 5

What happened in Industrial Chemical Industries v Shatwell (1965)? What was held?

Answer 5

• Two claimants disobeyed their employer’s instructions and tested an electric circuit with insufficient wiring, causing them to sustain injuries
• HELD - claimants were engaged in an activity of their own choosing, against the wishes of the employer so volenti worked as a defence

Question 6

What happened in Kirkham v Chief Constable of Greater Manchester (1990)? Held?

Answer 6

• Mr Kirkham had made two suicide attempts
• Police failed to tell the prison that he was a suicide risk
• He committed suicide in the cell
• HELD - volenti no defence as Mr Kirkham was not of sound mind

Question 7

Explain the effect of disclaimers and exclusion clauses on tortious acts. Do exclusion clauses provide a defence? Provided what? However? According to what Act? Although? What relationship would this not be allowed for? Why?

Answer 7

• Exclusion clauses in contract can offer complete defences
• Provided that the claimant was made fully aware of the contents
• However, liability cannot be excluded in a contract between consumers
• The Unfair Contract Terms Act 1977
• Although such a clause may work between businesses
• Not between a business and a consumer
• The courts would see this as an inequality of bargaining power

Question 8

What effect has the Road Traffic Act 1988 had on volenti? Example case?

Answer 8

• A driver of a car cannot say that a passenger gets into their car entirely at their own risk and use volenti as a defence for any injury
• Pitts v Hunt (1991)

Question 9

What happened in Pitts v Hunt (1991)? What was held? What defence succeeded?

Answer 9

• Claimant was a passenger on a motorbike being ridden by the defendant. The defendant was drunk and the claimant knew this, encouraging him to drive recklessly
• HELD - because of the Road Traffic Act 1988 volenti was not available as a defence
• Defence of illegality more appropriate and succeeded

Question 10

What happened in Morris v Murray (1990)? What was held? What was held on appeal?

Answer 10

• Drunk defendant and claimant decided to fly the defendant’s plane. It crashed, killing the defendant and injuring the claimant
• Trial judge awarded damages
• On appeal the CoA accepted volenti and overturned the decision

Question 11

Give four cases where volenti was used in the context of sporting activities

Answer 11

• Simms v Leigh RFC (1969)
• Wooldridge v Sumner (1962)
• Smoldon v Whitworth (1996)
• Blake v Galloway (2004)

Question 12

What happened in Simms v Leigh RFC (1969)? What was held? Was the club liable?

Answer 12

• Claimant tackled opponent and momentum carried him into a wall, breaking his leg
• HELD - a duty of care was owed but the tackle was within the rules of the game
• Volenti applied so club not liable

Question 13

What happened in Wooldridge v Sumner (1962)? What was held?

Answer 13

• Photographer hit by horse at horse show

- HELD - volenti - the claimant had chosen to position himself close to risk such errors (made by rider) affecting him

Question 14

What happened in Smoldon v Whitworth (1996)? Held? Why?

Answer 14

• Referee allowed a scrum to collapse, which caused the claimant to suffer neck injuries
• Volenti raised as a defence but dismissed so defendant liable
• Claimant had consented to the risk of playing but not to having a negligent referee

Question 15

What happened in Blake v Galloway (2004)? What was held? Why?

Answer 15

• Two 15 year olds were throwing bark at each other
• One got hit in the eye
• The game was throwing bark, which is exactly what caused the injury so there was no departure from the game and volenti offered a defence

Question 16

Are the courts eager to accept volenti as a defence? Why?

Answer 16

• In practice they are often reluctant

- Volenti is a complete defence

Question 17

The courts have been reluctant to accept a defence of volenti since what Act? Preferring to do what? Why?

Answer 17

• The Law Reform (Contributory Negligence) Act 1945
• Preferring to apportion loss between the parties
• Approaching loss on the basis of contributory negligence is seen as a more fair approach

Question 18

What does contributory negligence do?

Answer 18

• Reduces the damages payable by the defendant according to the extent to which the claimant’s own carelessness contributed to their injuries

Question 19

Is contributory negligence a limited defence in terms of availability of use?

Answer 19

• No, it is a defence that can be used for a wide range of torts

Question 20

What used to happen if a person was even partly responsible for the harm done to them? Was this deemed fair? What happened as a result?

Answer 20

• They could not recover anything in tort
• This was deemed unfair
• Parliament passed the Law Reform (Contributory Negligence) Act 1945

Question 21

What does the Law Reform (Contributory Negligence) Act 1945 say?

Answer 21

• That a claim in which the claimant is somewhat responsible for the act which caused their injuries, the claim need not fail, but the damages should be reduced to reflect the liability of the claimant

Question 22

What two things must be proved in order for a defence of contributory negligence to succeed?

Answer 22

• The claimant failed to take care of their own safety in a way that at least partially caused their injuries
• The claimant failed to recognise that they were risking their own safety even though the reasonable person would

Question 23

What was held in Baker v Willoughby (1969)?

Answer 23

• On appeal gunshot wound held by the CoA to be an intervening act and the claimant was found 50% responsible for the first injury as he had failed to get out of the way (had plenty of time to do so)

Question 24

Give two examples of issues that would suggest contributory negligence

Answer 24

• The lack of a seatbelt in RTAs

- Pedestrians not using a crossing that was nearby and getting hit by a vehicle

Question 25

What did Spearman v RUH Trust (2017) Highlight?

Answer 25

- Highlighted the need for claimants in negligence (Occupiers Liability 1957) to objectively show the kind of care that the average man in the street would

Question 26

What happened in Spearman v RUH Trust (2017)? What was held? Why?

Answer 26

- Spearman admitted to hospital in hypoglycemic state, wandered through an unlocked and unmarked door and fell off the roof, injuring himself - Claimant not contributorily negligent - He wasn't in a state of mind that would allow him to appreciate the danger

Question 27

What happened in Badger v MOD (2006)? Held? Why?

Answer 27

- Claimant had contracted lung cancer as a result of exposure to asbestos at work and died. Widow claimed against employer - High Court awarded damages but reduced them by 20% - He had made his condition worse by smoking even though the health risks of smoking were widely known

Question 28

What happened in Blackmore v Department of Communities and Local Government (2017)? Held? Why?

Answer 28

- Heavy smoker worked with asbestos and contracted lung cancer HELD - claimant 30% liable on a contributory negligence basis - The dangers of smoking were apparent but the court felt that this was overweighed by the dangers posed to workers handling asbestos

Question 29

What are the limits on contributory negligence? (3)

Answer 29

- Courts have recognised that children are less likely to recognise risky conduct than adults - The standard of care for a rescuer is that of a reasonable rescuer rather than that of a reasonable person - In an emergency situation, the courts have accepted a person may not have the time to take the best course of action

Question 30

What is the limit on volenti in regard to rescuers?

Answer 30

- The courts take the view that members of the public trying to help should not be penalised by the defence

Question 31

Give three cases that concern the use of volenti in regard to rescuers/helpers

Answer 31

- Haynes v Harwood (1935) - Chadwick v BRB (1967) - Cutler v United Dairies (1933)

Question 32

What happened in Haynes v Harwood (1935)? What was held?

Answer 32

- Policeman tried to control two bolting horses in order to save two members of the public - HELD - he was acting in his statutory duty and could not be said to have voluntarily accepted the risk of being injured (volenti didn't work)

Question 33

What happened in Chadwick v BRB (1967)? What was the issue? What was held?

Answer 33

- Claimant suffered severe psychiatric damage after helping when a train crashed - ISSUE - should volenti apply to rescuers? - HELD - volenti does not apply on public policy grounds as it would mean penalising people who risk their safety to help others

Question 34

What happened in Cutler v United Dairies (1933)? What was held?

Answer 34

- Claimant tried to stop runaway horses that had run into a field and was injured - Volenti operated - there was no danger to anyone and he accepted the risk by getting involved

Question 35

Give four cases concerning children and contributory negligence

Answer 35

- Goughs v Thorns (1966) - Morales v Eccleston (1991) - Yachuk v Oliver Blais Co Ltd (1949) - Evans v Souls Garage (2001)

Question 36

What happened in Goughs v Thorns (1966)? What was held? Why? What did Denning say?

Answer 36

- Lorry driver stopped and signaled 13 year old to cross - Overtaking lorry killed her - HELD - taking account of her age, she had not fallen below the expected standards of care so was not contributorily negligent - Denning said a child should only be found contributorily negligent if they are at an age where they could reasonably be expected to take precautions for their own safety

Question 37

What happened in Morales v Eccleston (1991) Held? Why? Appeal?

Answer 37

- Eccleston ran over an 11 year old who followed a football into the road without looking - HELD - Eccleston should've seen him (road dry + visibility good) and so held to be 80% to blame - On appeal - held that the child was contributorily negligent 75% as he ran into the road without looking

Question 38

What was held in Yachuk v Oliver Blais Co Ltd (1949)? Why?

Answer 38

- 9 year old boy deemed not contributorily negligent when he was sold and played with gasoline, burning himself - At his age, he could not have been expected to know of the dangers

Question 39

What was held in Evans v Souls Garage (2001)? Why? What is the rule?

Answer 39

- 13 year old boy deemed 1/3 contributorily negligent when he was sold and played with gasoline - He was deemed to have known of the dangers - RULE - children must be adjudged to know of risk and dangers in order to be contributorily negligent

Question 40

Give two cases concerning the standard of care required of claimants in emergency situations

Answer 40

- Baker v TE Hopkins & Sons (1959) | - Jones v Boyce (1816)

Question 41

What happened in Baker v TE Hopkins & Sons (1959)? What did the defence say? What was held? Why?

Answer 41

- 2 men employed to clean a well but told not to go down there yet because of fumes - they didn't listen - Dr tried to rescue them but all died - Defendant said that the doctor going down the well was an intervening act and sought volenti as defence - HELD - no intervening act and no volenti. It was foreseeable that the Dr would try to help and his actions were not unreasonable

Question 42

What happened in Jones v Boyce (1816)? What was held? Why?

Answer 42

- Claimant riding on top of defendant's coach when the reins broke and it looked like it was going to topple over - He jumped and broke his leg and the coach didn't topple - HELD - no contributory negligence as he had acted reasonably

Question 43

What happened in Reeves v Metropolitan Police Commissioner (1999)? What was held? Why?

Answer 43

- Man on suicide watch committed suicide - HELD - defendant liable (literally on suicide watch) but Lynch held 50% contributorily negligent as he was of sound mind

Question 44

If there was no avoiding the accident and the losses would have been just the same then the defence of contributory negligence will not help the defendant. Give a case that illustrates this

Answer 44

- Smith v Finch (2009)

Question 45

What happened in Smith v Finch (2009)? Held?

Answer 45

- In a collision with a motorbike the claimant suffered serious injury to the back of his head - Agreed on the facts that normal cycling helmets would not have protected this area, hence there was no contributory negligence for not wearing one

Question 46

What are the two factors taken into account in apportioning blame?

Answer 46

- Causation - the extent to which the defendant's own actions caused their own injuries - Culpability - the relative blameworthiness of the claimant and defendant for the claimant's injuries

Question 47

What happened in Stapley v Gypsum Mines Ltd (1953)? What was the action brought for? Held?

Answer 47

- Mr Stapely killed in mining accident while acting against employer's orders - Mr Dale had briefly left that part of the mine and was uninjured so Mrs Stapely brought an action against the employer for breach of statutory duty in relation to the actions of Mr Dale - Trial judge found for claimant but reduced damages by 50% for contributory negligence and then by 80% on appeal

Question 48

In what case did the CoA suggest reductions in damages awarded to claimants in car accidents who failed to wear a seatbelt? What are they? (3)

Answer 48

- Froom v Butcher (1976) - If the claimant's injuries would have been avoided altogether if they wore a seatbelt: 25% reduction - If the claimant would have received less serious injuries: 15% reduction - If the injuries would have been the same regardless: No reduction

Question 49

What happened in McHugh v Okai-Koi (2017)? Held?

Answer 49

- McHugh jumped on Okai's bonnet - When def braked claimant fell, hit head and died - Liability apportioned 25/75 in favour of claimant as Okai shouldn't have driven with claimant on bonnet

Question 50

What was held in Badger v MOD (2005)?

Answer 50

- Contributory negligence assessed at 20% to reflect when the claimant would have had no excuse to not be informed of the risk of smoking

Question 51

What happened in Jackson v Murray (2015)? Held?

Answer 51

- 13 year old girl hit by car at night | - originally held 90% contributorily negligent but 50% on appeal

Question 52

What does ex turpi mean?

Answer 52

- No action arises from a dishonourable claim

Question 53

Why will claims arising out of criminal activity be invalid on public policy grounds?

Answer 53

- People do not want to see crimes awarded

Question 54

What happened in Ashton v Turner? What was held?

Answer 54

- Two burglars trying to escape in defendant's car (crashed) | - HELD - claimant cannot sue because ex turpi

Question 55

What happened in NCB v England (1954)? What was held?

Answer 55

- Injury caused by negligent claimant was not illegal so could still claim, but because of contributory negligence held 25% accountable

Question 56

What was held in Delaney v Pickett (2011)?

Answer 56

- Claimant's possession of cannabis was merely incidental and so the claim was allowed

Question 57

What happened in Joyce v O'Brien (2014)? Held?

Answer 57

- Claimant fell off van while trying to keep stolen ladders from falling out - HELD - ex turpi

Question 58

What happened in Vellino v CC of Greater Manchester (2001)? Held?

Answer 58

- Claimant tried to sue for injuries sustained while running from the police - HELD - nope. Illegal so ex turpi

Question 59

What was held in Revil v Newberry (1996)?

Answer 59

- Claimant contributorily negligent as their activity was illegal but the defendant was also to blame for taking disproportionate measures to protect his property

Question 60

What was held in Hounga v Allen (2014)?

Answer 60

- It wouldn't be morally correct to allow defence of ex turpi as the defendant had taken advantage of the claimant's status as an illegal immigrant

Question 61

What three principles were laid down in Patel v Mirza (2016)?

Answer 61

- In order to tell whether a claim has been tainted by illegality the courts must check: - The underlying purpose of the illegality in question - Any other aspect of public policy that might be offended if the defence worked - Whether the court is acting proportionately in the case by allowing/denying the defence

Question 62

Sometimes people suing in tort whose claim might fail for illegality could succeed if what? Example case?

Answer 62

- If they have a legitimate human rights issue | - Al-Hassan-Daniel v Revenue and Customs Commissioner (2010)

Question 63

In deciding whether illegality should succeed as a defence what should the court look at? (5)

Answer 63

- Seriousness of illegality - Claimant's knowledge and intent - Would denying the claim be a deterrent? - Would denying claim be fair or proportionate? - The link between the illegal act and the facts that gave rise to the claim

Question 64

Give a case that concerns statutory authority as a defence in tort

Answer 64

- X v Bedfordshire CC (1996)

Question 65

What was held in X v Bedfordshire CC (1996)?

Answer 65

- Statutory authority works unless defendant acted unreasonably

Question 66

What three defences do not apply in negligence?

Answer 66

- Necessity - Mistake - Inevitable Accidents