Chapter 5: Defenses

Question 1

Introduction

Answer 1

Defences do not become relevant until a tort has been established. Only at that point is it necessary to see if any defences are available that might completely remove a defendant’s liability, or at least partially reduce it. It is for the defendant to prove a defence on the balance of probabilities.
This chapter considers the three key defences in the tort of negligence: volenti non fit injuria
(consent), contributory negligence and illegality. This chapter also explores the defence of necessity.

Question 2

2. Consent (Full Defense)

Answer 2

Translated, ‘volenti non fit injuria’ means ‘that to which a man consents cannot be considered an injury’. It is usually shortened to volenti or ‘consent’. The defence of consent is applicable in cases where the claimant has consented to the risk(s) involved and cannot, therefore, complain of the consequential damage.
In order to succeed in this defence the defendant must show that the claimant:
(a) Had capacity to give valid consent to the risks
(b) Had full knowledge of the nature and extent of the risks
(c) Agreed to the risks of injury
(d) Agreed voluntarily

Question 3

2.1 Capacity to give valid consent to the risks

Answer 3

The first requirement for the defence of consent that the defendant must prove is that the claimant had the mental capacity to consent to the risk(s). This is normally straight forward, unless the claimant is, for example, a young child.

Question 4

Key case: Reeves v Commissioner of Police for the Metropolis [2000] 1 AC 360

Answer 4

A prisoner took his own life whilst in police custody. It was alleged that the police were responsible for his death. The police were aware that he was at risk of taking his own life. Having confirmed that the police owed a duty of care to the prisoner to prevent him from taking his own life, the House of Lords stated that the defendants could not use an argument of consent in relation to the deceased’s action as this was the very action that they were required by their duty of care to prevent. The claimant did not have the requisite capacity to consent to the risk associated with taking his life. However, damages were reduced by 50% for contributory negligence.

Question 5

2.2 Full knowledge of the nature and extent of the risks

Answer 5

Key case: Morris v Murray [1991] 2 QB 6

The claimant accepted a lift with a drunken pilot. The claimant was also drunk, and this had to be taken account of by the court in determining whether he appreciated the danger involved. The court held that the claimant was not so drunk as to be incapable of understanding the nature and extent of the risk, and he willingly embarked on the flight knowing the defendant was drunk and likely to be negligent.

Question 6

2.3 Agreed to the risks of injury

Answer 6

The third requirement for the defence of consent, is that the claimant agreed to run the risk of injury due to the defendant’s negligence. This agreement can be express or implied. Like the
previous requirement, this is also subjective. Knowledge of the risk alone is not the same as
consenting to it.

Question 7

Key case: Dann v Hamilton [1939] 1 KB 509

Answer 7

The claimant was a passenger who knew the driver was under the influence of drink but the
defence of consent failed when the driver negligently caused an accident: knowing the risk did not mean that she (the claimant) had impliedly consented to the risk (ie agreed to waive any liability for any negligence on the driver’s part).

Question 8

2.4 Agreed voluntarily

Answer 8

The fourth requirement for the defence of consent, is that the claimant agreed to run the risk of injury due to the defendant’s negligence voluntarily. The defence cannot succeed unless the claimant acted voluntarily ie the claimant decided to subject themselves to the risk free of any constraint.

Question 9

Key case: Smith v Charles Baker & Sons [1891] AC 325

Answer 9

The claimant was hit by a rock from a crane whilst at work. It was stressed that the requirement of voluntary consent was in addition to knowledge of the risk. Employees who know of the risks of their jobs are not necessarily voluntarily running those risks, since they may have little real option if they wish to keep their job. It is therefore very difficult (although not impossible) to succeed with
the defence of consent where the claimant is an employee.

Question 10

Key case: Baker v T.E. Hopkins & Sons Ltd [1959] 1 WLR 966

Answer 10

A doctor was held to be a rescuer when trying to save some workmen trapped down a mine. Dr Baker knowingly descended into a well containing poisonous fumes in an attempt to rescue two of the workers and died from the fumes. Dr Baker had capacity, knowledge of the nature and extent of the risk and had agreed to the risk. However, the agreement to the risk was not voluntary. He acted out of an impulsive desire to save life rather than freely agreeing to the risk created by the defendant’s negligence

Question 11

2.5 Consent may be negated by statute

Answer 11

(a) Section 149 of the Road Traffic Act 1988 prevents the use of consent by motorists facing claims from their passengers.

(b) Section 2 of the Unfair Contract Terms Act 1977 applies to defendants acting in the course of business (but does not apply where the claimant is a consumer). Section 2(1) prohibits defendants excluding or restricting liability for death or personal injuries resulting from negligence.

(c) Section 65(1) of the Consumer Rights Act 2015 prohibits traders, when dealing with consumers, from using contract terms/notices limiting or excluding liability for death or
personal injury through negligence. Other damage is subject to s 62 - an exclusion clause is only binding if it is fair. Section 65(2) states that voluntary acceptance of risk cannot be assumed merely because the consumer agreed or knew about the term.

Question 12

2.6 Summary

Answer 12

• Where the claimant has consented to the risk of injury due to the defendant’s negligence, the defendant has a complete defence to the claim in tort.
• To establish the defence, the defendant must show that the claimant:
• Had capacity to give valid consent to the risks;
• Had full knowledge of the nature and extent of the risks (subjective);
• Agreed to the risk of injury (subjective); and
• Agreed voluntarily.
• The defence of consent cannot be used by motorists facing claims from passengers.
• The Unfair Contract Terms Act 1977 and Consumer Rights Act 2015 provide that being aware of a term limiting/excluding liability for certain losses does not mean the party consents to those risks/losses.

Question 13

The legal test for contributory negligence

Answer 13

Contributory negligence is argued where the claimant is at fault too and that fault has
contributed to the claimant’s loss. The basis for this defence is found in s 1(1) of the Law Reform (Contributory Negligence) Act 1945 (LRA)

‘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 in respect thereof shall be reduced to such extent as the court thinks just and equitable having regard to the claimant’s share in the responsibility for the damage.’

This means that for a finding of contributory negligence the defendant must establish (Jones v Livox [1952] 2 QB 608):
(a) That the claimant failed to take reasonable steps for their own safety; and
(b) That this failure contributed to the claimant’s damage.

Question 14

Effect of contributory negligence (Partial Defence)

Answer 14

A finding of contributory negligence reduces the liability of a defendant in relation to the harm their breach of duty has caused the claimant to reflect the claimant’s role in the harm they suffer. In practice, this means the claimant’s damages are reduced by a percentage the court thinks just and equitable having regard to the claimant’s share in the responsibility for the damage. Contributory negligence is therefore a partial defense.

Question 15

3.2 The claimant failed to take reasonable steps for their own safety in relation to that specific incident

Answer 15

The first stage of the legal test for contributory negligence, is that the claimant failed to take
reasonable steps for their safety. The claimant is required to take the same degree of care that a reasonable and prudent person would take. The standard is objective. Examples of claimants failing to take reasonable care for their own safety can be found below.

Question 16

Owens v Brimmell [1977] QB 859

Answer 16

A passenger is guilty of contributory negligence where they knew the driver had consumed excessive alcohol or they had gone drinking with the driver knowing they would later lose the capacity to appreciate the danger of being a passenger. Being drunk is not an excuse for failing to take reasonable steps for your own safety.

Question 17

Sayers v Harlow UDC [1958] 1 WLR 623

Answer 17

The claimant got stuck in the defendant’s toilet cubicle. She unsuccessfully attempted to escape through the gap between the door and ceiling and on her way down stood on the toilet roll holder. As a result, she fell and was injured. Her damages were reduced by 25% as she failed to take reasonable care by attempting to rely on the unstable toilet roll holder.

Question 18

Emergency or difficult dilemmas

Key case: Jones v Boyce [1816] 1 Stark 493

Answer 18

The claimant was a passenger on the defendant’s coach. When a horse started to run away with
the carriage due to the defendant’s negligence, the claimant reasonably believed that the coach was about to overturn and so jumped off and broke his leg. There was no contributory negligence. The claimant had acted reasonably in the situation. The defendant could not criticise the claimant’s attempts to avoid the danger created by the defendant.

Where the claimant is a child, the court will take into account their age in determining the
standard of care to be expected but a child will be found to have been contributorily negligent if
they fail to meet the standard of care appropriate

Question 19

Key case: Gough v Thorne [1966] 3 All ER 398

Answer 19

A lorry driver stopped and waved for the 13-year-old claimant to cross the road. As the claimant emerged from behind the lorry without looking, she was hit by the defendant driver. There was no contributory negligence as the claimant had met the standard of an ordinary 13-year-old. Had she been an adult, she would have been contributory negligent.

Question 20

Rescuers & Contributory Negligence

Answer 20

Rescuers are generally protected from contributory negligence. In Baker v T.E. Hopkins [1959] 3 All
ER 225, not only did the court not find the defendant had consented to the risk of injury (see discussion above under ‘consent’) but there was also no finding of contributory negligence. It was held that the defendant had acted as a reasonable rescuer would do (allowances being made for the emergency situation he was in). However, in Harrison v BRB [1981] 3 All ER 679 the court felt that such protection would not be justified if the rescuer had negligently helped to create the emergency in the first place.

Question 21

Nature of Duty

Answer 21

The nature of the duty must also be considered. In St George v Home Office [2008] EWCA Civ
1068 the claimant was a prisoner who fell out of a top bunk bed during a seizure caused by withdrawal from drugs. Prison staff had failed to adequately look after him, despite knowing of the risk of withdrawal seizures. It was held that it was inappropriate to reduce the claimant’s damages on the basis that his own role in creating the addiction amounted to contributory negligence, because having told the prison officers about the risk of seizures, it would not be equitable to reduce his damages for that reason.

Question 22

3.3 Failure contributed to the claimant’s damage

Answer 22

Once it has been established that the claimant failed to take reasonable care for their own safety, the second stage is to show that the claimant’s failure to take reasonable care contributed to the damage suffered, although it need not contribute to the accident. Therefore, failure to wear a
seat belt will be contributory negligence if wearing a seat belt would have reduced or avoided
injury (Froom v Butcher [1976] QB 286) even though failing to wear the seat belt does not cause the accident.

Question 23

3.4 The deduction which is made

Answer 23

The court has a discretion on how great a reduction to make to the claimant’s damages. The
claimant’s degree of culpability will generally be expressed in percentage terms, taking into
account the respective culpability of the defendant and claimant. An equivalent percentage of the damages will then be deducted from the claimant’s award.

Question 24

Example

Answer 24

In Froom v Butcher [1976] QB 286, Lord Denning suggested a 25% reduction if the wearing of the seat belt would have avoided injury, 15% if it would have reduced it and 0% if it would have made no difference. However, these figures are not cast in stone and vary depending on all the
circumstances.

Question 25

Several Defendants

Answer 25

The court first determine whether the claimant’s claim against the defendants as a whole should be reduced as a result of contributory negligence. Once that is
determined, and it is known what the defendants as a whole should pay, the court determine how liability is shared between the defendants (Fitzgerald v Lane [1989] AC 328).

Question 26

3.5 Summary

Answer 26

• If a person suffers damage partly due to another party’s tort but partly due to their own fault, then their damages can be reduced by a percentage.
• The defendant will need to show that:
• The claimant failed to take reasonable steps for their own safety; and
• This failure contributed to the claimant’s damage.
• In relation to the first requirement, the claimant is less likely to be found at fault if they needed to act in an emergency, if they are a child or if they are a rescuer.
• In relation to the second requirement, the claimant’s fault must have contributed to the
  damage suffered, although it need not contribute to the accident.
• If contributory negligence is established, then the damages are reduced by a percentage
  which is just and equitable, and the court has considerable discretion.

Question 27

4 Defences: Illegality

Answer 27

Illegality (also known as ex turpi causa non oritur actio meaning ‘no action may be based on an
illegal cause’) is a complete defence. Illegality might apply where the claimant was involved in an illegal activity at the time they suffered their loss. At its heart is a desire to avoid granting a claim where this would produce inconsistency and disharmony in the law, harming the integrity of the
legal system. Allowing a claim which is intertwined with a crime could mean the law appearing to allow and prohibit something simultaneously.

Question 28

4 Defences: Illegality

Answer 28

If the law dictates a person should be imprisoned or
fined as punishment for their criminal wrongdoing, they should not then be able to seek
compensation for that imprisonment or fine by bringing a claim against a defendant they claim
caused them to commit that wrong.

In a wider sense, a claimant should not be able to recover damages for losses they suffer while engaged in a criminal activity, this is based on the idea that it would be “offensive to public notions of the fair distribution of resources that a claimant should be compensated (usually out of public funds) for the consequences of his own criminal conduct”
Patel v Mirza [2016] UKSC 42

Question 29

Illegality applied: Gray v Thames Trains [2008] UKHL 33

Answer 29

The Claimant suffered PTSD after being involved in the Ladbroke Grove rail crash caused by the defendant’s negligence. Two years after the crash, the Claimant, still suffering from PTSD stabbed and killed a pedestrian in a road rage incident and was found guilty of manslaughter and
sentenced to indefinite detainment in hospital.

Question 30

Illegality applied: Gray v Thames Trains [2008] UKHL 33 Judgement

Answer 30

The House of Lords agreed
with the defendants on the basis that to allow the claimant’s claim would be inconsistent with the sentence of the criminal court and the feelings of guilt and remorse that the claimant also sought compensation for were caused by his own crime and not the defendant’s negligence.

Question 31

4.1 Difficulty in defining the limits of the defence

Delaney v Pickett [2011] EWCA Civ 1532 t

Answer 31

Whilst the need for the defence might be clear, it is not always easy to determine when it should apply.

The claimant sued the defendant after he was
seriously injured in a road traffic accident caused by the negligence of the defendant. The claimant and defendant were together transporting a large quantity of cannabis at the time of the accident. In this case the Court of Appeal rejected the illegality defence and the Claimant succeeded in his claim against the defendant. The criminal activity (the transporting of cannabis)
did not cause the accident and was incidental to the negligent driving.

Question 32

4.2 Suggested legal test for illegality, Patel v Mirza [2016] UKSC 42

Answer 32

Step 1 Has the claimant committed an illegal (or possibly grossly immoral) act at the time they suffered their loss caused by the defendant? For example, in Ashton v Turner [1981] QB
137 the parties were escaping from a burglary when the claimant was injured by the
defendant’s negligent driving. If no such illegal act has been committed, the defence
does not apply. If it has, move on to Step 2.

Step 2 Apply the test in Patel v Mirza [2016] UKSC 42 taking into account earlier decisions which
turn on similar facts. Patel is the current leading authority for the defence of illegality. In
this case, the Supreme Court confirmed that the underlying policy question which
needed to be answered when determining whether illegality applied is, ‘whether allowing
recovery for something which was illegal would produce inconsistency and disharmony
in the law, so cause damage to the integrity of the legal system’

Question 33

Trio of necessary conditions

Answer 33

(a) The underlying purpose of the prohibition which has been transgressed and
whether that purpose will be enhanced by denial of the claim;
(b) Other relevant public policy which may be rendered ineffective or less effective by
denial of the claim; and
(c) Whether denying the claim would be a proportionate response to the illegality.

Question 34

Assessment of Proportionality & Non-Exhaustive Factors

Answer 34

The court identified a list of non-exhaustive factors: the seriousness of the conduct, its centrality to the tort (whether there is a causal link between the illegality and the tort), whether it was intentional and
whether there was a marked disparity in the parties’ respective culpability.

These three considerations should be applied to the facts to determine whether or not
the defence should be allowed to proceed.

Question 35

Key case: Henderson v Dorset Healthcare University NHS Foundation Trusts
[2020] UKSC 43.

Answer 35

In Henderson, the claimant, a mentally ill patient under the care of the defendant NHS team, was found guilty of manslaughter after killing her mother during a psychotic episode. The defendant admitted negligence in failing to return the claimant to hospital and that, but for their breach of
duty, the claimant would not have killed her mother. The claimant brought a negligence claim against the health authority, claiming as damages the losses she suffered as a result of killing her
mother, including damages for her loss of liberty (detention) and loss of inheritance.

Question 36

Key case: Pitts v Hunt [1991] 1 QB 24 Key case: Pitts v Hunt [1991] 1 QB 24

Answer 36

The claimant and defendant had been on a joint drinking spree and were both heavily intoxicated. The claimant rode pillion on the defendant’s motorbike encouraging the defendant to drive recklessly. The claimant knew the defendant had no licence. Sadly, they were in an accident and the defendant died, and the claimant was injured. The defence of illegality was successful; the claimant’s injury was caused directly by the illegal act, and it would have been an affront to public conscience to award the claimant damages

Question 37

Key case: Delaney v Pickett [2011] EWCA Civ 1532

Answer 37

The claimant was injured in a motor vehicle accident due to the defendant’s negligent driving. The claimant was found to be carrying a large packet of cannabis which the claimant and defendant were travelling to sell. The defence of illegality failed because the claimant’s injury was not caused by his illegal act, the illegality merely provided the occasion for the injury. Selling drugs did not
cause his injuries.

Question 38

Differences in Case Law

Answer 38

The centrality of the illegal act to the tort seems to explain the difference between these two cases tort (ie the causal link between the illegality and the tort). In Pitts without the illegality (jointly encouraging and engaging in reckless driving) the tort would not have happened. In contrast, in Delaney, the illegality (the drug aspect) was just ‘context’ and did not cause the accident: the accident could have happened had they not been carrying any drugs.

Question 39

4.3 Summary

Answer 39

• Did the claimant commit an illegal (or grossly immoral) act?
• If yes, apply the Patel v Mirza test taking into account earlier decisions which turn on similar
  facts:
  (i) What was the underlying purpose of the prohibition transgressed and will that purpose
  be enhanced by denying the claim (what are the policies supporting the defence of
  illegality);
  (ii) Other relevant public policy on which denial of the claim may have an impact (what are
  the policies that favour denying the defence of illegality); and
  (iii) Whether denying the claim would be proportionate to the illegality
• Potentially relevant factors when considering proportionality: seriousness of the conduct, its
  centrality to the tort or contract, whether it was intentional and whether there was marked
  disparity in the parties’ respective culpability
• Pre Patel case law generally remains good law where the facts are materially the same.

Question 40

5 Defences: Necessity

Answer 40

This defence is applicable where the defendant acted to save life, limb or property. It is rare for a
defendant to rely on this defence, and it is unclear as to whether it applies to negligence.

Question 41

5.1 Legal test for necessity

Answer 41

If it is argued by the defendant, they must prove that they:
(a) Were acting in an emergency to prevent harm to the claimant, a third party and/or the
defendant themselves; and
(b) Were not at fault in causing the emergency.

Question 42

5.1.1 Acting in an emergency

Answer 42

The emergency must generally involve preventing death or serious injury. It is a subjective test ie that defendant must believe at the time of the negligence that it was necessary to act to prevent death or serious injury.

Question 43

North v TNT Express (UK) Ltd [2001] EWCA Civ 853

Answer 43

The claimant asked the defendant lorry driver for a lift home. The defendant refused and the claimant climbed up on to the front bumper of the lorry. The defendant drove away slowly worried the claimant would become violent. The claimant fell off, suffering injuries. The defence of necessity failed; the defendant did not fear an imminent attack by the claimant or his friends. He was not acting to prevent death or serious injury.

Question 44

5.1.2 Not at fault in causing the emergency

Answer 44

The defendant cannot rely on this defence if the emergency arose out of the defendant’s negligence. The defendant must show that they acted reasonably, and the necessity to act arose without the defendant’s negligence.

Question 45

Esso Petroleum Co Ltd v Southport Corp [1956] A.C. 218

Answer 45

The captain of the defendant’s oil tanker discharged 400 tons of oil into the sea, causing damage
to a marine lake owned by the claimant. The defence of necessity was successful; the captain had acted in an emergency to prevent
death or serious injury. Had he not discharged the oil, the tanker would have sunk, putting the
lives of the crew at stake. The defendant’s negligence had not caused this emergency, and the
captain therefore acted reasonably.

Question 46

5.2 Summary

Answer 46

• Necessity is a complete defence meaning if the defence is successful, the claimant will not
  receive any damages.
• Necessity is rarely argued as a defence to negligence, and it is unclear as to whether it applies
  to negligence.
• In order to succeed with the defence of necessity, the defendant must prove that they:
  (i) Were acting in an emergency to prevent harm to the claimant, third party and/or the
  defendant themselves. This test is subjective; and
  (ii) Were not at fault in causing the emergency. The necessity to act must arise without the
  defendant’s negligence.