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    Defences

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    Samantha Rn
    Defences to tort claims include voluntary assumption of risk, illegality, and contributory negligence. Voluntary assumption of risk requires the claimant to have knowledge and voluntarily agree to assume the specific risk that resulted in injury. Illegality as a defence bars recovery for damages directly resulting from the claimant's criminal or unlawful acts. Contributory negligence applies where the claimant's own fault partially caused the injury, and results in reduction of damages based on the claimant's degree of responsibility. These defences can overlap and interact in complex ways depending on the specific facts of the case.

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    Defences

    Uploaded by

    Samantha Rn
    188 views25 pages
    Defences to tort claims include voluntary assumption of risk, illegality, and contributory negligence. Voluntary assumption of risk requires the claimant to have knowledge and voluntarily agree to assume the specific risk that resulted in injury. Illegality as a defence bars recovery for damages directly resulting from the claimant's criminal or unlawful acts. Contributory negligence applies where the claimant's own fault partially caused the injury, and results in reduction of damages based on the claimant's degree of responsibility. These defences can overlap and interact in complex ways depending on the specific facts of the case.

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    Defences to tort claims include voluntary assumption of risk, illegality, and contributory negligence. Voluntary assumption of risk requires the claimant to have knowledge and voluntarily agree to assume the specific risk that resulted in injury. Illegality as a defence bars recovery for damages directly resulting from the claimant's criminal or unlawful acts. Contributory negligence applies where the claimant's own fault partially caused the injury, and results in reduction of damages based on the claimant's degree of responsibility. These defences can overlap and interact in complex ways depending on the specific facts of the case.

    Copyright:

    Attribution Non-Commercial (BY-NC)
    Download as PDF, TXT or read online from Scribd
    Download as pdf or txt
    188 views25 pages

    Defences

    Uploaded by

    Samantha Rn
    Defences to tort claims include voluntary assumption of risk, illegality, and contributory negligence. Voluntary assumption of risk requires the claimant to have knowledge and voluntarily agree to assume the specific risk that resulted in injury. Illegality as a defence bars recovery for damages directly resulting from the claimant's criminal or unlawful acts. Contributory negligence applies where the claimant's own fault partially caused the injury, and results in reduction of damages based on the claimant's degree of responsibility. These defences can overlap and interact in complex ways depending on the specific facts of the case.

    Copyright:

    Attribution Non-Commercial (BY-NC)
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    Defences

    General Defences to Actionable Torts

    General Defences
    Consent already considered in torts against person voluntary assumption of risk a broader defence
    Volenti non fit injuria

    Illegality
    Ex turpi causa non oritur actio

    Contributory Negligence
    Not so general

    Voluntary Assumption of Risk


    Focus on negligence Has narrowed over time Key point: claimant assuming risk that defendant would breach duty not risk of injury alone
    Complete defence

    Elements somewhat contested traditionally:


    Prior agreement Knowledge of risk Voluntariness Degree of danger

    Cases Where No VAR Defence


    Where no liability in negligence
    Assumption of risk by claimant can go to std of care/breach: Wooldridge v Sumner, Tomlinson Risk D can treat C as having accepted; objective inquiry

    Where intentional act of claimant is caused by negligence itself


    Reeves; Corr v IBC: chain of causation continues Cf CN

    Road Traffic Act 1972, s148(3) Where agreement can only be inferred from knowledge of previous careless conduct, or of Ds diminished capacity on occasion of N

    VAR Defence Persists


    Express vs implied agreement/consent Dann v Hamilton (1939): Ld Asquith
    1. Negligence of D causes dangerous physical condition, then C agrees to risk 2. Implied agreement precedes negligent act, in extreme cases only: drunkenness of D, dealing with harmful explosives Considered in following cases

    VAR Defence Persists: Extreme and Obvious Danger


    Volenti as a defence has, perhaps, been in retreat, certainly in relation to master and servant cases It seems to me that the wild irresponsibility of the venture is such that the law should not intervene to award damages and should leave the loss where it falls. Flying is intrinsically dangerous and flying with a drunken pilot is great folly. The situation is very different from what has arisen in motoring cases.
    Morris v Murray (1991, Fox LJ)

    Even in Employment Context


    there is a world of difference between two fellow servants collaborating carelessly, so that the acts of both contribute to cause injury to one of them, and two fellow servants combining to disobey an order deliberately, though they know the risk involved.
    ICI v Shatwell (1965, Ld Reid)

    Rationale for Applying Defence?


    Jaffey
    Need a transaction or relationship between parties If tacit agreement, necessary that C must have been fully aware not only of possibility of negligence but of facts making it highly likely that D would commit a negligent act

    Tan
    Flexible approach considering a range of factors

    Contributory Negligence
    Historically, a complete defence crude understanding of causation History still important as what amounted to CN is still relevant
    CN = partly to blame separate liability in negligence

    Consequences of claimant being partly to blame in this sense were altered: Law Reform (Contributory Negligence) Act 1945

    Law Reform (Contributory Negligence) Act 1945


    Where any person suffers damage as the result partly of his own fault and partly of the fault of any other person or persons, a claim in respect of that damage shall not be defeated by reason of the fault of the person suffering the damage, but the damages recoverable shall be reduced to such extent as the court thinks just and equitable having regard to the claimants share in the responsibility for the damage Section 1(1)

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    Fault
    fault means negligence, breach of statutory duty or other act or omission which gives rise to a liability in tort or would, apart from this Act, give rise to the defence of contributory negligence. Section 4 Williams interpretation slice section in two, negligence other act or omission which:
    1. For defendant, gives rise to tort liability 2. For claimant, gives rise at common law to CN defence Standard Chartered confirmed this interpretation

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    Three-part Inquiry
    To establish and apply CN defence under Act: 1. Relevant fault on part of claimant 2. Claimants injury was partly the result of the claimants fault (causation) 3. In light of the causal contribution, reduction of damages as is just and equitable (apportionment)

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    Establishing Relevant Fault


    Although contributory negligence does not depend on a duty of care, it does depend on foreseeability. Just as actionable negligence requires the foreseeability of harm to others, so contributory negligence requires the foreseeability of harm to oneself. [That is, if a person] ought reasonably to have foreseen that, if he did not act as a reasonable, prudent man, he might be hurt himself; and in his reckonings he must take into account the possibility of others being careless.
    Jones v Livox Quarries (1952, Denning LJ)

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    Establishing Relevant Fault ctd


    No such fault in relation to intentional torts: Standard Chartered (cf Murphy v Culhane)
    Purpose of CN defence Limit to its general application

    But includes intentional acts of claimant: Reeves, Corr v IBC Different for children: only if of such an age as to be expected to take precautions for his or her own safety: and then only if blame should be attached to him or her (Gough v Thorne, 1966)

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    Causation
    There is no clear guidance to be found in the books about causation... It is a matter of common sense more than anything else [F]oreseeability is not the decisive test of causation. It is often a relevant factor, but it is not decisive The mans negligence here was so much mixed up with his injury that it cannot be dismissed as mere history. His dangerous position on the vehicle was one of the causes of his damage Jones v Livox

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    Causation ctd
    The question is not what was the cause of the accident. It is rather what was the cause of the damage. In most accidents on the road the bad driving, which causes the accident, also causes the ensuing damage. But in seat belt cases the cause of the accident is one thing. The cause of the damage is another. The accident is caused by the bad driving. The damage is caused in part by the bad driving of the defendant, and in part by the failure of the plaintiff to wear a seat belt.
    Froom v Butcher (1976, Ld Denning MR)

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    Lifestyle Choices?
    the claimants fault in becoming addicted to drugs and alcohol in his mid-teens was not a potent cause of the status and the consequent brain injury which were triggered by his fall... It was too remote in time, place and circumstance and was not sufficiently connected with the negligence of the prison staff or was not sufficiently mixed up with the state of things brought about by the prison staff to be properly regarded as a cause of the injury. [T]he claimant's addiction was no more than part of the history
    St George v Home Office (2008, Dyson LJ)

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    Apportionment
    [C]onsideration should be given not only to the causative potency of a particular factor, but also its blameworthiness. But [in] most of these cases the only question is: what damages should be payable? This question should not be prolonged by an expensive inquiry into the degree of blameworthiness on either side, which would be hotly disputed. Suffice it to assess a share of responsibility which will be just and equitable in the great majority of cases.
    Froom v Butcher (Ld Denning MR)

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    Express Exclusion of Liability: UCTA 1977


    Defendant can exclude liability in negligence in contractual terms or by notices Limits on this in UCTA:
    Only business liability covered No exclusion/restriction of negligence liability in relation to death or PI (s2(1)) Only exclusion of other damage if term/notice reasonable Agreement to term does not of itself amount to VAR

    Express clause that claimant voluntarily accepted risk relationship with s2(1) UCTA unclear

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    Illegality
    Different kind of defence matter of public policy that claimants should not recover if engaged in illegal activity criminality as focus, but also unlawfulness more broadly, immorality? BUT many expressions of defence and different circumstances in which it might apply Applies across legal subjects tort, trusts, contract etc Historically in tort, categories of case of illegality, eg joint illegal enterprise cases

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    Modern Statement of Doctrine: Gray


    Narrow rule: you cannot recover for damage which is the consequence of a sentence imposed upon you for a criminal act
    Rationale: no liability because of inconsistency of requiring someone to be compensated for a sentence imposed by law because of his own personal responsibility for a criminal act

    COA as a whole not tainted by illegality, subsequent illegal act by claimant

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    Gray ctd
    Wider rule: you cannot recover for damage which is the consequence of your own criminal act
    Rationale: it is offensive to public notions of the fair distribution of resources that a claimant should be compensated for the consequences of his own criminal conduct

    May raise issues of causation (Hoffmann)


    Need to distinguish cases where injury simply would not have occurred but for the claimants unlawful act from cases where unlawful act central to causing injury

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    Application of Narrow Rule


    Gray itself Variation in Hewison v Meridian Shipping (2002, CA)
    No damages to compensate for loss which would have required the doing of an unlawful act to incur Distinction between collateral illegality and cases where claimant bases claim on his unlawful act in a substantial way Ex turpi causa non oritur damnum

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    Application of Wider Rule


    Injury caused by police negligence in attempting to evade lawful custody: Vellino (2002, CA) Joint criminal enterprise: Pitts v Hunt (1991) Illegality by claimant acting alone: Revill v Newbury (1996, CA)
    Odd case And now s329 CJA?

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    Overlapping Defences
    Consider Pitts v Hunt again VAR looks possible on facts, but barred by statute, illegality bars claim instead
    Murphy v Culhane: both VAR and illegality

    Contributory negligence may still operate when illegality or VAR does not bar claim
    Revill v Newbury; Reeves/Corr Although of course, no CN when no liability, as for VAR (Wooldridge v Sumner)

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