Defences

Defences

1. Contributory negligence

   • Law Reform (Contributory Negligence) Act 1945: Where any person suffers damage as the result partly of his own fault, and partly the fault of another person or person, a claim in respect of that damage shall not be defeated, but the damages recoverable shall be reduced to such extent as the court thinks just and equitable having regard to the claimant's share in the responsibility for that damage.
     • Before the Act, a claiant whoe failure to take care for his own safety was a cause of his own safety was guilty of contributory negligence which meant that he could not sue D, even though D had also been in breach of duty.
   • Jones v Livox Quarries: A person is guilty of contributory negligence if he ought reaosnably to have foreseen that if he did not act as a reasonable, prudent man, he might hurt himself, and in his reckonings, he must take into account the possibility of others being careless. the claimant does not need for foresee the exact harm which may result from his own failure to take reasonable care to protect himself.
     • St George v Home Office: The Court of Appeal held that someone's lifestyle choice could count as fault e.g. becoming addicted to drugs and alcohol if C saw that such habits could be a risk to his health. He did not have to foresee the type of harm which it would lead to in order for it to allow a claim to be reduced for contributory negligence.
       • St George v Home Office: In that case, the fault was too remote in time. However, if contributory negligence had been a successful defence, a reduction would have been for 15%. In orderfor C's fault to be contributory negligence, it must be a potent cause of the injury. It must be in some way mixed up with the state of things brought about by D's negligence.
     • Co-op v Pritchard: Where C provokes an attack against himself, he is not at fault under the Act.
   • Stapley v Gypsum Mines: Where D is a cause in fact of the harm done, this does not mean that C did not contribute. Where the actions of both parties are tied up with one another so that C's negligence cannot be regarded as a independent and unrelated cause of the accident, damages will be awarded but apportioned for contributory negligence.
   • Frrom v Butcher: The question in contributory negligence is whether C's failure to take reasonable care contributed to the damage rather than the accident. Even where D is the sole cause of the accident, if C's shortcomings mean that the damage suffered is more severe than it otherwise would have been, damages will still be reduced for contributory negligence.
     • Where C fails to wear a seatbelt, there will be a 25% reduction for injuries that would not have been suffered at all if he had worn one, and a 15% reduction for those that would have been suffered but less severe.
   • Reeves v Met Police Commissioner: Where C does a deliberate act, but this is exactly what D's duty was to guard against, the act will not count as a novus actus, however any claim against D will be reduced for contributory negligence. Fault under the 1945 Act can include deliberate as well as negligent acts. Damages in this case were reduced by 50%.
     • Co-op v Pritchard: The 1945 Act applies only where there would have previously been a defence of contributory negligence at common law. There are no cases before the Act where there was such a defence in the case of an intentional tort such as assault and battery. Where D intended to cause P harm, he cannot rely on the Act.
       • Smith LJ reached this conclusion reluctantly and would have thought apportionament fair if she had not been bound by authoirty.
         • Goudkamp: Apportionment is unavailabkle in proceedings in trespass to the person. It is difficult to disagree with Aikens LJ's reasoning. The Act was meant to replace the defence of contributory negligence with apportionment so that claimats who would have previosuly failed to establis lisability could recover partial compensation. However, Gouskamp disagrees with the outcome. He says that contributory negligence is not an excuse as it is concerned with C's conduct rather than D's. Furthermore, the amount of damages awarded depends not on D's wrongdoing, but the extent of C's loss and this is often determined by chance. The court was influenced by the work of Glanville Williams but Goudkamp thinks this work was unsatisfactory. Contrary to Smith LJ's view in Prtichars, apportionment should not be available in actions in trespass to the person but this is not for the reasons that Williams suggests, rather apportionment is unnecessary becuase of the doctrine of provocation.

2. Volenti non fit injuria

   • Dann v Hamilton: A defence of volenti was not successful against P when she knowingly got into a car with a drunk driver. Asquith J said that volenti does not often apply in cases of negligence and is more common in trespass to the person. Full knowledge of the danger is necessary for the defence but such knowledge does not mean that P has accepted the risk.
     • Dann v Hamilton: There may be circumstances where the driver's drunkness is so glaring a danger that P has essentially engaged in an intrinsically and obviously dangerous occupation. Asquith LJ comapred the level of dangerous as meddling with an unexploded bomb or walking on the edge of a cliff.
     • Dann v Hamilton: Where D's negligence has created a dangerous situation and subsequently P, fully appreciating the danger, elects to assueme the risk, the defence may apply.
   • Volenti is a full defence when it applies.
     • ICI v Shatwell: Where two fellow employees combine to disobey an order deliberately even though they know the risk involved, volenti is a defence and the employer will not be vicariously liable for either of their actions. Knowlege of a risk is not sufficient but acceptance is to be dealt with on the facts. Acting in defiance of rules which P knows exist to guard agaisnt the risk will amount to accepting it.
       • Morris v Murray: Getting into a plane with a pilot who P knew was drunk was so glaringly dangerous that P was taken to wavied his rights in the event of an injury consequent on a failure to fly with reasonable care. Volenti was successfully applied.
     • Nettleship v Weston: Since contributory negligence ceased to be a complete defence, volenti was reconsidered and confined tightly. Lord Denning held that knowlege of the risk is not enough, nor is a willingness to take the risk of inury. P must agree, expresly or impliedly, to waive any claim for injury that may befall him due to D's lack of reasonable care. Checking the insurance to see if it covered him indicated that P did not waive his rights.
   • Reeves v Met Police Commissioner: The defence did not apply where P committed suicide. This would have the effect of negativing any duty of care in respect of suicide. Volenti could not apply where the injury caused by P's deliberate act was that which D was under a duty to take reasonable care to prevent.

3. Exclusion

   • UCTA 1977: A person cannot exclude liability for death or personal injury which results from negligence. In respect of other loss or damage, a person can restrict liability only in so far as the exclusion satisfied the requirement of reasonableness.
   • Road Traffic Act 1988: s.194(3) : The fact that a person carried in a vehicle has willingly accepted as his, the risk of negligence on the part of the user, shall not be treated as negativiting any such liability of the user.

4. Illegality

   • Hall v Herbert: McLachlin J thought that the doctrine of ex turpi causa should be applied very narrowly in tort law. He said that its function should be to preserve the integrity of the legal system, thus it should operate where, and only where, granting damages would allow C to either profit from his wrongdoing or to circumvent or undermine the criminal law. An example is suing for economic loss arising from a joint illegal venture or one bank robber suing the other for negligent misrepresentation. Claiming damages for personal injury is not profit in that sense as it merely puts C back in the place he would have been, no better. McLachlin J did not think the defence should apply merely becuase C was engaging in illegal conduct at the time the loss was suffered e.g. where the claimant had been drink driving.
   • Revill v Newberry: A defence of ex turpi did not work to prevent a burgalar from recovering damages for personal injuries suffered when he was trying to break in to D's shed. The judge said that the defence would only apply were the injury complaned ofwas so closely interwvoen with the illegal act so as to virtually be a part of it, or if it was a direct and uninterrupted consequence of the illegal act. As firing a gun was a disproportionate response by D, the wound was not a direct consequence of the burglary.
   • Gray v Thames Trains: C sufferd PTSD as a consequence of D's negligence and went on to kill another person. He was charged with mansluaghter, having made a successful plea of diminished responsibility. He was sectioned and detained under the Mental Health Act. He tried to claim damages for: loss of earnings after release- but the civil courts will not allow recovery in respect of loss imposed on C as a punishment by the criminal law; loss of earnings whilst in detention- also barred by the offence; and for feelings of guilt and resmorse- these were the product of C's unlawful act and so could not be recovered either. The stress disorder dimished C's responsbility but did not extinguish it.
     • Two rules of public policy operated in this case. In its wider form it was that you cannot recover compensation for loss which you have suffered in consequence of your own criminal act. This wider rule has to be justified on the ground that it is offensive to public notions of fair distribution of resources that a claimant should be compensated (usually out of public funds) for the consequences of his own criminal conduct: see per Lord Hoffmann, at para 51. In its narrower and more specific form, it is that you cannot recover for damage which flows from loss of liberty, a fine or other punishment lawfully imposed upon you in consequence of your own unlawful act.
     • Delaney v Pickett: Where C's illegal act had no causal nexus to the harm he suffered, the public policy considerations behind the ex turpi case did not apply. He was allowed to succeed.
   • Joyce v O'Brien: Where C and D are involved in joint criminal enterprise C will not be able to recover damages. This is not becuase it is impossible to determine the standard of care, but becuase where the illegal activity makes it foreseeable that the parties might be subject to unusual or increased risks of harm and that harm materialises, the injury will be deemed to have been caused by C.