negligence defences Flashcards
(18 cards)
what is contributory negligence?
- Partial defence
- Looks at C’s conduct and its effect on the harm sustained by C – not about effect caused by other than C
- The Law Reform (Contributory Negligence) Act 1945 s.1(1) –
- NOT Contributory negligence when claimant’s fault contributed to the accident – liability can be apportioned between the claimant and defendant e.g., C:60% and D:40%
- Contributory negligence – claimant’s fault contributed to damage the C has sustained – damages can be reduced in proportion to the claimant’s fault e.g., C’s damages are reduced by 40%
- Froom v Butcher – question is not what was the cause of the accident; it is rather what was the cause of the damage.
- Elements of contributory negligence: Fault, just and equitable to reduce damages, causative potency
- There must be a link between damage and fault. Has to be just and equitable
contributory negligence: fault
- Law Reform (Contributory Negligence) Act 1945 s.4 –
- Fault meaning – someone who doesn’t take reasonable care for themselves.
- Jones v Livox Quarries Ltd – fault requires foreseeability of harm to oneself
- Froom v Butcher – reasonable care is judged by the standard of a reasonable person – objective test
- Gough v Thorne – child’s age is taken into account for reasonable person test. “A very young child cannot be guilty of contributory negligence”
common application of fault (contributory negligence) - seatbelts and protective helmets
o Seatbelts: Froom v Butcher – seatbelt is the only thing where there is a set standard of damages reduction – if failure to wear seatbelt caused all the more difference to damage – damages would be reduced by 25%. If failure only made a considerable difference, damages would be reduced to 15%. If failure didn’t change outcome, no damages reduction. Exception: Froom said if a man is unduly fat or a woman is pregnant, they may be excused from wearing a seatbelt, but this might be different now since criminal law requires everyone wear a seatbelt.
o Protective helmet: treated similar to seatbelt. O’Connell v Jackson – failure caused injury to be more severe 15% reduction. Smith v Finch – cycle helmet – seatbelt rules would apply.
common application of fault (contributory negligence) - intoxication
o Intoxication: not taken into account, so reasonable person test would apply just the same. Owens v Brimmell – getting into a car with a drunken driver even if C is too drunk himself to know whether D (driver) is drunk, C did not take reasonable care for his own safety – objective standard - 20% reduction. Brannan v Airtours plc – drunkenness held to be fault for the purposes of CN.
common application of fault (contributory negligence) - emergency action and rescuers
o Emergency action: Jones v Boyce – reasonable person test
o Rescuers: C. is judged against a lower standard of care for their own safety where C. is intervening to rescue someone who is injured or imperilled as a result of D.’s conduct; the greater the risk to others C was trying to avert, the greater the imperilment to his own safety the law will accept as reasonable; doesn’t matter of rescue is successful - Tolley v Carr.
common application of fault (contributory negligence) - self-harm and lifestyle choices
o Self-harm and suicide: depends on the degree to which C has mental capacity to make decisions - Corr v IBC Vehicles Limited. Reeves v Metropolitan Police Commissioner – sound mine – 50% reduction; Kirkham v Chief Constable of Greater Manchester Police – unsound mind – no reduction.
o Lifestyle choices: Badger v Ministry of Defence – C was advised to stop smoking but continued and damage was reduced.
contributory negligence : causative potency
- Claimant’s fault must contribute to the damage - Froom v Butcher
- Difference between contributory negligence and novus actus interveniens (intervening act) is the latter is when the claimant’s fault is regarded as the sole cause, whereas the former means the claimant contributed to harm.
- Courts are more likely to be persuaded to find fault which falls short of a novus actus interveniens, which will be contributory negligence.
- Jones v Livoz Quarries Ltd – C’s negligence so mixed up with his injury that it cannot be dismissed as mere history.
- St George v Home Office – Heroin addict in prison asked to be put in top bunk because he suffers from fits as a result of ‘cold turkey’. Places in top bunk and fell out – head injury. CN failed partly on the grounds there was no causative potency as C’s heroin addiction in his youth was not so closely connected to the injury that it can reduce damages.
is reduction just and equitable (CN)
- Law Reform (contributory negligence) Act 1945 s.1(1)
- The courts consider relative blameworthiness e.g., in Froom the court said you can’t have a situation where a passenger is more responsible than a driver who was the cause of the accident, hence the low reduction for contributory negligence.
- You can add different elements together (e.g., not wearing seatbelt, getting into car with drunk driver, distracting the driver) – but don’t just add all the percentages together, think about blameworthiness and how much reduction would ‘just and equitable’ – adjust accordingly.
- Best v Smyth – seems ambitious to blame the passenger equally with the driver so unlikely to be awarded 50% reduction.
Volenti non fit injuria
- Full defence
- If D can show that C
o had knowledge of the risk of injury; AND voluntarily decided to take the risk
OR
o agreed to exclude D’s liability
then D will have a complete defence
describe method 1 of volenti
- D must prove C actually knew of the risk
o Test is subjective, not objective – Smith v Austin Lifts Ltd – ‘he must know a appreciate the full extent of the risk’ - Knowledge of a risk is different from being mistaken about it
o Smith – I know it is a bit risky, but so long as I am careful, I shall be alright” – defence will not apply; ‘No matter how careful I am, it is very likely I shall fall’ and still goes on – defence will apply. - D needs to prove C had knowledge of the existence, nature and extent of the risk
- D must prove C consented to the risk of the injury, not the certainty of injury – Dann v Hamilton – ‘consent of the patient relieves the dentist who extracts a tooth’
- Freedom of choice must exist – Bowater v Rowley Regis Corporation – he should have full knowledge of the circumstances on which the freedom of choice predicates and there should be no pressure.
what is the wide and the narrow approach for method 1 of volenti?
- Wider approach: Knowledge ≡ Agreement
o Morris v Murray – almost equates knowledge with voluntary agreement - Narrow approach: agree exclusion
o Nettleship v Weston – knowledge of the risk of injury is not enough. ‘Nothing will suffice short of an agreement to waive a claim for negligence’.
o Defence of volenti cannot be used between a driver and passenger because of new statute, and in this case instructor didn’t tell learner to steer so they collided with lamp post and defence didn’t apply.
Typical areas where volenti is raised?
o Employees
Rare for volenti to succeed against an employee as they don’t have much freedom - Smith v Charles Baker & Sons Ltd – merely continuing to work in a situation which involves risk isn’t usually ‘voluntary’ enough. D must show C consented to the ‘particular thing’ and consent may be inferred from a course of conduct.
If, without pressure, an employee voluntarily chooses a dangerous working method, this may be enough for the defence: ICI Ltd v Shatwell – didn’t listen to employer and used explosives in unsafe way – nothing more employer could have done.
o Self-harm
If mental health issue takes away mental capacity, suicide may not be sufficiently ‘voluntary’ – Kirkham v Chief Constable of the greater Manchester Police
If mental health not take away mental capacity, suicide may be sufficiently ‘voluntary’ – Reeves v Metropolitan Police Commissioner
o Rescuers – difficult to prove for same reasons as CN
o Spectators - Wooldridge v Summers – if you’re watching tennis game and ball hits you, volenti may apply. Effect not clear – some risk might be accepted, but not every risk.
describe method 2 of volenti - waiving a claim
- If D can show that C knew of the risk of injury and voluntarily decided to take the risk or exclude D’s liability, D will have a complete defence.
- The exclusion of D’s liability needs to be ‘voluntary’ in the same way as voluntariness to run the risk
- The exclusion of liability could be before D’s breach of duty or after D’s breach of duty
- Volenti cannot be used against claims by passengers of vehicles in some situations - If the vehicle and journey fall within the requirement for compulsory motor insurance in the Road Traffic Act 1988? ⇨ a car, van, lorry, motorcycle, moped etc. on a public road ⇨ volenti cannot apply: s.149(3) RTA 1988 and Pitts v Hunt. Morris v Murray (aircraft) – otherwise volenti can apply.
how to write about volenti in an exam?
Structure: Focus on the first way of establishing defensible volenti - knowledge of risk + willingly undertaking it. But also recognise there could be an alternative basis. If there is nothing in the facts of the problem question which suggests you take the alternative basis, you can probably dismiss that.
defence of illegality
- ‘Public policy requires that the Courts will not lend their aid to a man who founds his cause of action upon an immoral or illegal act.’ Standard Chartered Bank v Pakistan National Shipping Corporation and others (No.2)
- Illegality can bare the entire claim or bare recovery of one or more heads of damages but not the entire action.
- The requirements for the illegality defence
o C has engaged in illegal or immoral behaviour
o There is a sufficient link between C’s behaviour and tort
o Considering all relevant factors, the claim should be defeated.
defence of illegality: C has engaged in illegal or immoral behaviour
o Vellino v Chief Constable of Greater Manchester – C escaped from lawful custody which caused his injury – act which caused injury is a criminal offence so defence applied
o Seriousness of illegal behaviour - threshold is whether it is punishable by imprisonment
defence of illegality: There is a sufficient link between C’s behaviour and tort
o Pitts v Hunt – illegality defence applied – C encouraged D to drive recklessly knowing D did not have insurance or a licence, D died, C was injured. Was the tort sufficiently linked to C playing a full and active part in encouraging D to commit offences? Yes.
o Revill v Newbery – defendant lost – being shot by someone is not a risk someone takes when they trespass and illegality of trespassing not sufficiently serious enough.
o Delaney v Pickett – C and D in car to deliver cannabis – negligent driving caused injury to C – defence applied
defence of illegality: Considering all relevant factors, the claim should be defeated
o Patel v Mirza (this wasn’t a tort claim but illegality defence apply equally) – court should consider whether it is proportionate to apply the defence, having regard to the underlying purpose of the illegality in question, and whether that purpose would be enhanced by denying the claim;
Seriousness of the conduct
Centrality of the conduct to the [contract]
Whether it was intentional
Whether there was marked disparity in the parties’ respective culpability
o Ali v HSF Logistics Polska SP ZOO – C’s car damaged by D, C MOT certificate lapsed 4.5 months ago – court said illegality doesn’t apply because failing to get MOT does not meet seriousness threshold and court should be mindful over overkill. It would be disproportionate to have refused C’s claim on the grounds on illegality.
