Defences (rev notes) Flashcards
(37 cards)
4 defences to tort claims
- consent = volenti non fit iniuria
- Illegality = ex turpi causa non oritur actio
- Exclusion of liability
- Contributory negligence
Volenti - principle
D will not be liable if can show that C accepted consequences of D’s tortious conduct.
=> “a man who freely and voluntarily incurs a risk of which he has full knowledge cannot complain of injury if that risk materialises and causes him damage” (Lord Reid in ICI v Shatwell)
Volenti - requirements (3)
- An agreement
- voluntarily made
- with full knowledge of the risk
Volenti - complete defence
= if successful, bars C from recovery
=> see eg ICI v Shatwell
Volenti - exception
Road Traffic Act 1988, S. 149(3) : where C = passenger suing driver D in negligence, D cannot rely on C’s consent as a defence
Volenti - something more than voluntary placing oneself in position where known risk might materialise
= Nettleship v Weston, Dann v Hamilton
Volenti - law reluctant to penalise rescuers
Baker v TE Hopkins and Sons Ltd : 2 emp of D endangered by carbon monoxide fumes while working, C doctor tried to rescue them, all 3 died – CA rejected D’s ag that C had accepted risks inherent to rescue : it would be ‘ungratious’ + ‘neither rational nor seemly’ to say to
Volenti - sports
Participants in game considered to have consented to the sort of physical impact which is a normal pt of the game => so no tort to consent to as long as standard of care btw players not breached
Illegality - principle
A claimant cannot be allowed to recover damages for losses suffered as a consequence of his own illegal act = Gray v Thames Trains
=> /!\ doesn’t mean that someone engaged in some unlawful act will always be prevented from recovering damages in tort for harm done to him by others : C’s illegal conduct must be an immediate cause of the damage for illegality to bar the claim = Delaney v Pickett
Illegality - Patel v Mirza test
weigh (policy) reasons to allow against reasons to refuse the defence + consider whether denial of claim = proportionate response to illegality
(confirmed that applied to tort in Henderson v Dorset Healthcare)
Illegality - eg of successful pleas
- Ashton v Turner (1982): C & 2 others driving away as fast as they could after committing burglary, car crashed, C injured sued D driver => established negligence but claim failed bcs illegality (not possible to set a standard for duty of care ‘reasonable burglary escape’)
- Pitts v Hunt (1991) : C = passenger on motorbike, encouraged driver to race while drunk, injured in crash => CA rejected claim on grounds of illegality, bcs not possible to set a standard of care
Illegality - narrow rule
= Lord Hoffman in Grey v Thames Train
Narrow rule = you cannot recover for damage which flows from […] punishment lawfully imposed upon you in consequence of your own unlawful act” [29]
=> Justification = need to avoid inconsistency btw civil and criminal law : civil court can’t compensate C for a sanction lawfully imposed on him by crim court which found him resp for a crim act
Illegality - wide rule
= “you cannot recover compensation for loss which you have suffered in consequence of your own criminal act” [29]
=> justification: “it is 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.”
Illegality - causation
Causing smth ≠ providing the occasion for someone else to cause smth = Lord Hoffman in Grey
=> Contrast Delaney v Picket and Joyce v O’Brien
Illegality - causation - Delaney v Picket
C&D transporting drugs, C injured in crash caused by D’s negligence
=> CA refused to bar the claim on the grounds of illegality bcs cause of C’s injury = D’s negligent driving, not C’s illegal conduct (= possession of drugs)
Illegality - causation - Joyce v O’Brien
C&D stole ladders, C fell out of back of the van as they fled (D driving v fast)
=> HL allowed D to bring illegality defence bcs foreseeable that such a joint crim enterprise (theft) created increased risk of harm due to dangerous driving (when trying to get away), and the risk materialised
=> C’s injury can be said to have been caused by the crim activity, even if resulted from negligent or intentional act of another party to the crim act
=> foreseeability of risk is relevant to whether illegal conduct = cause of injury for purpose of illegality defence
Illegality - the debate - objections to illegality
- Unjustified windfall for D, who may be equally implicated in illegality
- Should courts help a C who has behaved illegally
Illegality - the debate - justifications for illegality
- need to avoid inconsistency btw civil and criminal law => civil court can’t compensate C for a sanction lawfully imposed on him by crim court which found him resp for a crim act (applies to narrow rule only) – Lord Hoffmann in Grey v Thames Train at [29]
- “it is 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.” – Lord Hoffmann in Grey v Thames Train at [29]
- In joint crim enterprise cases: diff to set a standard of care – wtf is ‘reasonable criminal conduct’?
/!\ concentrate (Carol Brennan) suggests that court doesn’t want to rather than can’t
Exclusion of liability- principle
= D can claim that he expressly excluded or limited liability by notice or contractual term
If C = a consumer: regulated by CRA 2015, s62 and 65
Otherwise, UCTA 1977, s2
Exclusion of liability - consumers - CRA 2015, s62
Requires terms / notices in consumer contracts to be fair:
“a term [or notice] is unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties’ rights and obligations […] to the detriment of the consumer.”
Exclusion of liability - consumers - CRA 2015, s65
(1) “A trader cannot by a term of a consumer contract or by a consumer notice exclude or restrict liability for death or personal injury resulting from negligence”
(2) Knowing or agreeing to term or notice NOT voluntary acceptance of any risk
(3) ‘personal injury’ includes “any disease and any imparment of physical or mental condition”
(4) Negligence = breach of
* Contractual obligation to take reasonable care or exercise reasonable skill
* CL duty to take reasonable care or exercise reasonable skill
* Occupier’s common duty of care (OLA 1957)
(5) Immaterial whether breach of duty inadvertent or intentional or whether lb direct or vicarious
Exclusion of liability - UCTA 1977, s2
(1) A person cannot exclude or restrict liability for death or personal injury resulting from negligence
(2) For other kinds of loss / damage: term or notice purporting to exclude liability must satisfy requirement of reasonableness
(3) Agreement or awareness of term / contract purporting to restrict lb NOT voluntary assumption of risk
Contributory negligence - principle
when C partly to blame for the injury he complains of, court should apportion damages accordingly / reduce damages ‘to such extent as [it] thinks just and equitable’
= s1 Law Reform (Contributory Negligence) Act 1945
Contributory negligence - statute
“Where any person suffers damage as the result partly of his own fault and partly of the fault of any other person(s), 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”
