Defences

Question 1

What are the defences in tort law?

Answer 1

Contributory negligence
Voluntary assumption of risk
Exclusion
Illegality

Question 2

Froom v Butcher [1976] - defences

Answer 2

Contributory negligence

Facts: C’s car was hit due to the negligent driving of the defendant and his head injuries were caused by his deliberate decision not to wear a seat belt. C’s damages were reduced by 20%. The court laid down guidelines for the reduction of damages according to the extent to which the injury would have been prevented by wearing a seatbelt:
* the whole injury, the deduction should be 25%;
* if a portion of the injury, the deduction should be 10%;
* if a seat belt would have made no difference, then no deduction should be made.

Question 3

Nettleship v Weston [1971] - defences

Answer 3

Voluntary assumption of risk
established that agreement for voluntary assumption means that mere knowledge of a risk is not sufficient

For voluntary assuption of risk there needs to be an agreement, voluntarily made, with full knowledge of the risk)

Question 4

Jones v Livox Quarries Ltd (1952) - damages

Answer 4

Contributory negligence
Facts: C was riding on a tow bar on the back of a vehicle, which was forbidden by his employer. He was hit from behind by a lorry and injured. He argued that the danger from his behaviour was only of falling off, but this narrow view was rejected by the court and his damages were reduced as it was foreseeable that this damage would be cause.
* established that the damages caused were within the foreseeable risk of the negligent conduct for contributory negligence to apply

Question 5

Morris v Murray [1991] - defences

Answer 5

Voluntary assumption of risk
Facts: – A pilot and C had been drinking all day, having consumed excessive quantities of whisky. When they took off in a light plane, the pilot was killed and the injured companion brought a negligence action against his estate. HELD: The claim was defeated by volenti. According to the judgment, ‘the wild irresponsibility of the venture is such that the law should not intervene to award damages and should leave the loss to lie where it falls’. There was no express agreement by the plaintiff but there was a deliberate collusion in the creation of the risk and this gave rise to implied agreement.

(For voluntary assuption of risk there needs to be an agreement, voluntarily made, with full knowledge of the risk)

Question 6

Gray v Thames Trains [2009] - defences

Answer 6

Illegality
Facts: The claimant was a formerly law-abiding passenger who suffered post-traumatic stress disorder (PTSD) and, two years after the crash, killed someone in a ‘road rage’ incident. He pleaded guilty to manslaughter on the grounds of diminished responsibility and was detained under the Mental Health Act 1983. He sued the defendant, the train driver, who had been negligent in causing the crash. Although the claimant was successful in respect of general damages for loss of liberty and reputation derived from his original injury, he failed in the aspects of his loss which were derived from his crime.