Tort 4 - Defences

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Tort 4 - Defences

Compare the roles played by the defences of contributory negligence and volenti non fit iniuria in personal

injury litigation.

Car accidents

- VNFI – driver-passenger situations DO NOT apply

Road Traffic Act 1988

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.

(2) If any other person is carried in or upon the vehicle while the user is so using it, any antecedent agreement or

understanding between them (whether intended to be legally binding or not) shall be of no effect so far as it purports

or might be held—

(a) to negative or restrict any such liability of the user in respect of persons carried in or upon the vehicle as is

required by section 145 of this Act to be covered by a policy of insurance, or

(b) to impose any conditions with respect to the enforcement of any such liability of the user.

(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.

(4) For the purposes of this section—

(a) references to a person being carried in or upon a vehicle include references to a person entering or getting on

to, or alighting from, the vehicle, and

(b) the reference to an antecedent agreement is to one made at any time before the liability arose.

In Dann v Hamilton [1939], it was held that a person accepting a lift from a drunk driver was not to be treated as

volens unless the drunkenness was so extreme and so glaring that accepting a lft would be equivalent of to

intermeddling with an unexploded bomb or walking on the edge of an unfenced cliff.

- Contributory negligence – deciding allocation of liability between parties of the tortious act

Lord Denning: If you are involved in negligently caused car accident but not wearing a seatbelt, to what

extent is C liable to contributory negligence to their injuries?

Froom v Butcher [1976] – only example where courts give explicit guidance– if the damages could have been

completely avoided – reduce by 25%, if it would have made it less bad – reduce by 15%.

2. Why is the defence of illegality particularly difficult to apply to tort claims?

http://www.lawcom.gov.uk/app/uploads/2015/03/cp160_Illegality_Defence_in_Tort_Consultation.pdf

If both parties are in the wrong, there is a conflict of who is entitled to claim damages.

e.g. Gray v Thames Trains Ltd [2009]

Case facts:

 C was injured by D in Paddington rail disaster, duty of care breached, C went from having v boring & uneventful life

& suffered from PTSD as a result of the disaster,

 aggression as result of PTSD & stabbed someone on street, argued that the negligence caused his aggression –

would never have done that, claiming for loss of earnings & reputation and therefore, loss of ability to get a good

job in future bc of his imprisonment.

Judgments:

 Should he be able to claim this? Acknowledge that the negligence made his life worse but was not entitled to

recover bc he was imprisoned bc he cut off liability bc intentionally killing someone

Outcome:

 held that he was convicted for manslaughter w diminished responsibility.

e.g. Patel v Mirza [2016] UKSC 42

Case facts:

 C transferred money to his friend (D) for the purpose of insider dealing, transferred £600,000 to D who worked in

RBS & have insider information

 Crime for conspiracy to participate in insider dealing

 D kept the money to himself rather than investing it

Judgment:

 Should C be entitled to the money back? Should illegality apply? Can he not get his money back bc what he did

was wrong, but then leaving the £600,000 w someone that was also in the wrong

 SC gave C money back – all they’re doing is unravelling a transaction (if I hire a hitman to kill my husband & he

doesn’t then I can go to court to claim my money back)

 Lord Toulson: “trio of consideration: let’s consider the underlying need for the prohibition in the first place, then we

consider whether there were any countervailing policy reasons as to why illegality should not apply here, then we

need to consider how proportional D’s role was to C’s role.”

It can be hard to determine the ‘seriousness of the tort

In Cross v Kirkby [1998], Beldam LJ sought to draw a distinction between the instant case and Lane v Holloway. He

considered Lane v Holloway as an example in which the claimant’s illegality was to be regarded as trivial and not a

cause of the assault for which he was claiming damages, and that therefore it was not appropriate to apply the

doctrine.

Proportionality of loss to illegality

In Cross v Kirkby [1998], Beldam LJ: “the cases referred to by the judge do not lead to his conclusion that it is

permissible in every case for the court to weigh up nicely the degree of illegality by the claimant on the one hand and

the defendant on the other to decide which of them should be allowed to recover damages for an assault.”

3. John and Tony went out drinking one evening after watching a football match. They broke into and stole a car

and travelled to a public house in it. Both John and Tony drank heavily that evening. Shortly after leaving the

pub, John lost control of the car and crashed into and killed Margaret, a pedestrian. John was unhurt in the

accident but Tony, who was not wearing a seatbelt at the time, suffered head injuries which resulted in

personality changes.

John was taken into police custody after the accident and left in a cell to sober up. The next morning it was

discovered that he had committed suicide. Because of pressure of work, no officer had checked his cell for

over six hours.

Tony’s head injuries resulted in him becoming increasingly aggressive and violent. Peter, the doctor treating

him, was aware of this but chose not to prescribe any drugs to lessen the problem as he was concerned about

the possible side effects. Unfortunately, Tony got into a dispute with Ken, a traffic warden, a fight ensued and

Ken was killed. Tony was convicted on manslaughter as a result.

Discuss the possible liabilities in tort.

Did Tony consent to getting into the car driven by John? Does it make a difference that Tony was heavily

intoxicated and stole a car?

- Road Traffic Act 1988 – volenti non fit iniuria is inapplicable, driver-passenger situations do not apply.

- Morris v Murray [1991] – does not necessarily apply bc Tony was significantly more intoxicated than Morris was,

therefore consent is not voluntary if C is so drunk that they are incapable of understanding the nature and the

extent of the risk

- consent was not given

Is John fully liable for his tort towards Margaret? Does the fact that he was intoxicated make a difference to

his negligence?

- Established duty of care – drivers to other road users, John breached his duty by driving negligently and therefore,

is liable for killing Margaret.

- Causation – crashed into & killed Margaret.

Did the fact that Tony didn’t wear his seatbelt hold him liable for contributory negligence?

- Lord Denning: If you are involved in negligently caused car accident but not wearing a seatbelt, to what

extent is C liable to contributory negligence to their injuries?

o Froom v Butcher [1976] – only example where courts give explicit guidance– if the damages could have

been completely avoided – reduce by 25%, if it would have made it less bad – reduce by 15%.

- Volenti – Tony made the decision to steal the car w John & then get into the car with him after BUT

o Road Traffic Act – s. 149 – volenti does not apply as a defence

 Dann v Hamiltion [1939] – can’t show that Tony full accepted the risk BUT [OBITER] It's possible that if

the driver was extremely drunk & obvious not in the state of mind, then C must have acknowledged &

accepted the risk - could work as a defence.

To what extent was Tony liable for killing Ken?

- Illegality - You cannot sue for something that arises as a result of your own wrongful act

- Gray v Thames Trains Ltd [2009]

o If Pete had given Tony the medication, his symptoms of aggression and violence would not have been so

prominent & possibly not have killed Ken?

o Acknowledge that the negligence made his life worse but was not entitled to recover bc he was imprisoned bc

he cut off liability bc intentionally killing someone

o Held for manslaughter w diminished responsibility

- Patel v Mirza [2016]

o

Was Peter contributorily negligent to Tony’s tort towards Ken? Was his act a novus actus interveniens?

- Intentional act of wrongdoing - chose not to prescribe any drugs to lessen the problem as he was concerned

about the possible side effects

Breach of duty of PO?

- Did not check for 6 hours – prima facie: clear BOD, acted below the standard of care.

- Metropolitan Police case?? – sound mind,

- Reeves – D argued sound mind & voluntary accepted risk of suicide, 50% reduction of liability. but if suicide –

could they have possibly been in sound mind?