Defences to negligence

Question 1

Is Voluntarily Assuming the Risk (Volenti) a full or partial defence to negligence?

Answer 1

A full defence

Question 2

What is Voluntarily Assuming the Risk (Volenti)?

Answer 2

‘…one who had invited or assented to an act being done towards him cannot, when he suffers it, complain of it as a wrong.’
Volenti is about agreeing to the harm itself or the risk of that harm - Smith v Charles Baker & Sons [1891] AC 325 (HL) 360 (Lord Herschell)

Question 3

Will a claimant injured due to someone else’s negligence be able to recover in tort of negligence?

Answer 3

No - this is where volenti comes in

Question 4

What case states that a sports player may consent to the risk of injury, but such consent does not extend to serious foul play?

Answer 4

Condon v Basi [1985] 1 WLR 866 (CA)

• depends on level of sport
• more likely to acquire harm from a Sunday league match than from a premier league match

Question 5

What case states that knowledge of risk alone is insufficient - there must be consent to the risk?

Answer 5

Dann v Hamilton [1939] 1 KB 509
Note: s.149 Road Traffic Act 1988 has now excluded the application of volenti in road traffic accidents
- Claimant injured in car accident due to defendant drunk driving
- under volenti, claimant did not consent to the risk. They only showed that there was a risk

Question 6

What case states that knowledge of risk alone is insufficient - there must be consent to the risk

Answer 6

Morris v Murray [1991] 2 QB 6 (CA)

• Claimant drove drunk defendant to airfield and helped prepare for flight
• Defendant drove helicopter and crashed, killing himself and injuring the claimant
• Claimant voluntarily accepted the risk and the court agreed

Question 7

Which case best supports defendant to volenti?

Answer 7

Morris v Murray [1991] 2 QB 6 (CA) as the defendant escapes liability

Question 8

Which case best supports claimant that volenti does not apply?

Answer 8

Dann v Hamilton [1939] 1 KB 509

Question 9

What case holds the standard for driving of learner as the same as that for someone who is licenced?

Answer 9

Nettleship v Weston [1971] 2 QB 691 (CA)

• learner driver mounted pavement which breaks instructors knee
• reasonable man test is objective: not bothered about how skilled the actual person is, just care about what a reasonable man would do.

Question 10

What has s. 149 Road Traffic Act 1988 exuded?

Answer 10

The application of volenti in road traffic accidents

Question 11

What case states that consent to an exclusion of liability will negative duty (where valid under UCTA77)

Answer 11

White v Blackmore [1972] 2 QB 651 (CA)

• husband killed whilst watching motor race
• one of the wheels got tangled in rope which lead to the claimant being thrown into the air and dying
• Court stated that the deceased could not have consented to the harm or risk of harm because no one could have predicted this harm could have happen HOWEVER they could show that he did consent to the defendant excluding their liability for any harm sustained and so for that reason the deceased wife was unable to recover

Question 12

Is illegality a full or partial defence?

Answer 12

Full defence - If we can show the claimant was doing something illegal when they sustained their harm then the defendant could argue that even if they had a duty and they breached it and it caused harm that they would not be liable

Question 13

What is the key authority for illegality?

Answer 13

Gray v Thames Trains [2009] UKHL 33

• claimant suffered ptsd from train crash
• due to ptsd, he stabbed someone
• claimant had broke chain of causation and train company were not liable
• the defence of illegality would have applied anyway

Question 14

What case states that illegality will not bar the claim when it merely provides the context?

Answer 14

Hounga v Allen [2014] UKSC 47

• Needs to be positively criminal which caused the harm
• A lady who was an illegal immigrant at the time of the case (she was a ‘criminal) and was working as a living nanny for d family
• The d regularly abused the nanny
• This supreme court said that the d (abuser) could not use illegality for this case just because she was an immigrant

Question 15

What case made the courts adopt a flexible, balancing approach to the defence of illegality

Answer 15

Patel v Mirza [2016] UKSC 42

• Case where both parties are involved in criminal activity
• Claimant agreed to pay money to defendant for inside knowledge
• defendant could not do the inside knowledge

Question 16

What case held that the claimant jumping out building to resist arrest a defence for illegality for the police’s defence?

Answer 16

Vellino v Chief Constable of the Greater Manchester Police [2001] EWCA Civ 1249

• C sued the police for not taking reasonable care for C not to jump out
• Because he was resisting an arrest which was his own fault and illegal he could not recover even if the police had been negligent

Question 17

What is contributory negligence?

Answer 17

Contributory negligence is a partial defence and if you succeed you are not getting rid of all liability but you are reducing it by a percentage

Question 18

Is contributory negligence a full or partial defence?

Answer 18

Partial defence - you are reducing the percentage of liability if you succeed

Question 19

What case states that contributory negligence will reduce damages by an amount that reflects claimant’s comparative blameworthiness

Answer 19

Froom v Butcher [1976] QB 286 (CA)

• not law to wear a seat belt at this stage
• if the injury would have been prevented completely by wearing seat belt = d has a reduction of 25% off damages
• If injury would have been less severe if wearing a seat belt = d has a reduction of 15% off damages
• If it would have made no difference if you had worn the seat belt or not = d has a 0% reduction off damages

Question 20

What case states the allocation of liability is subjective and judgements of lower courts should be respected where they are reasonable?

Answer 20

Jackson v Murray [2015] UKSC 5

• school child got out of bus and hit by car
• trial judge decided on a 90% reduction as the child was 90% to blame
• CA reduced this to 70%
• SC reduced this to 50%

Question 21

What case states that the courts adopt an objective standard when judging claimants conduct?

Answer 21

Jones v Livox Quarries Ltd [1952] 2 QB 608 (CA)

• C riding on back of truck which was against policy
• Another truck crashed in back of trust
• The d had been negligent, but c had also been negligent by riding on back of truck
• The injured sued the company and the court reduced the damages by 25%
• the d still had to pay most of the damage as what the other truck driver had done was much worse
• The court also thought about if the c had been shot – the defence of contributory negligence would not apply as the c would not have contributed to their harm

Question 22

What does s.1(1) and s. 4 Law Reform (Contributory Negligence) Act 1945 state?

Answer 22

‘Where any person suffers damage as the result partly of his own fault…the damages recoverable in respect thereof shall be reduced to such an extent as the court thinks it is just and equitable having regard to the claimant’s share in the responsibility for the damage.’