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Negligence | Defences •

Dr Jenny Papettas

Final stage of Negligence Enquiry: Actionable Damage A type of damage the courts have said one can

Burden of proof is with claimant Burden of proof is with defendant

bring a claim for | Meets the min. threshold | Rothwell

Duty of Care Establish the defendant owes the claimant a duty of care

Breach of Duty Establish the defendant has breach that duty of care

Causation – factual and legal Factual - But for test | Legal – Rules of Remoteness (Type of harm was foreseeable for defendant) | New and Intervening Acts (Liability of Defendant is cut short/doesn’t come to force) Usually means one has established an initial liability

Defences Could reduce the liability of the defendant Could block all together the liability of the defendant

• Types Defences: Contributory Negligence (Partial Defence) Volenti non fit injuria Illegality

Contributory Negligence (Partial Defence) Law Reform (Contributory Negligence) Act 1945 s1(1) ‘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’

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Previous to this Act, if the claimant was found to have been careless towards their own welfare and this had a part to play in the harm that they suffered; Contributory Negligence acted as a complete defence to the claim, and there would be no liability on the defendant at all

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This was changed because it was felt that there being some fault on the part of the claimant which led to an entire defence for the defendant wasn’t really fair

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This Act provides that the compensation which has to be paid to the claimant should be reduced to take account of any fault attributable to them

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Its generally thought that the wording of the Act means now that’s its not possible to reduce the amount of damages by 100%.

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Not universally accepted, but there is case authority to support that view (Pitts v Hunt) Partial defence

Pitts v Hunt [1991] 1 QB 24 • Two friends on a motorcycle • Hunt is driving, Pitts is the passenger • They had been drinking together (knowledge the other had been drinking) • On the way home they were driving recklessly, shouting/driving at pedestrians • Hunt collides with a car and is killed, and Pitts is very seriously injured • And so brings a claim in relation to his injuries (claimant) • The defendant (estate) argued that the claimant was himself at fault for what had happened • He knew Hunt had been drinking, that he was unlicensed and uninsured and that getting onto the motor cycle in those conditions meant that he was at fault for his own injuries • At trial, the judge agreed and reduced the amount of damages by 100% • Bear in mind, this is way after the Law Reform Act • This then went to the Court of Appeal, and they thought differently • Lord Justice Bedlam* said: “before the section comes into operation, the court must be satisfied that there is fault on the part of both parties which has caused damage. It is then expressly provided that the claim "shall not be defeated by reason of the fault of the person suffering the damage . . ." To hold that he is himself entirely responsible for the damage effectively defeats his claim.” • So the Judge then reversed the decision of reducing damages by 100% to 50% • Making direct Reference to s.1(1) and saying that by reducing by 100% one is effectively “defeating the claim by reason of the fault of the person suffering the damage”

Main changes brought by the act

▫ ▫ ▫

No longer a complete defence Reduction in the award of damages Need fault of both the Claimant and the Defendant

Elements For This Need to show:

1. 2. 3.

Fault on the part of the Claimant Causative link between C’s actions and his harm Reduction of damages according to relative level of fault

Fault on the part of the Claimant • Firstly have to establish the claimant was at fault in some way • Involves finding the claimant acted in a way that doesn’t show reasonable care towards themself • Behaviour is measured against standard of reasonableness • Assessing fault of the claimant • “Did the claimant act in a reasonable way in relation to themselves?” • For there to be fault, the claimant’s acts has to be unreasonable • Intentional Acts also count

• Novus actus intervenien* • Situation where something intervenes between what the defendant does and what the claimant suffers • Argument of the defendant is that the thing that intervenes in-between is a new and different cause of the damage • And that therefore they should no longer be responsible for it • The liability is cut off altogether; Not a defence • Things that could intervene:

a. b. c.

Natural Event Act of Third Parties Act of the claimant themselves

McKew v Holland * • Claimant suffered an injury at work • From time to time, his left knee would give way and he was at risk of falling down • He then went to view a property with his family, which involved ascending steep set of stairs • On the way down, he didn’t wait for assistance and there was no hand rail • He just descends the stairs, while holding a young child, and his knee gives way • He is forced to jump from quite high up the stairs and gets injured • He then brings a claim against the employee saying if he wasn’t injured at work he wouldn’t have been injured in the first place • So he must be responsible for his whole damages • The employer said no. The employees own actions in deciding to go down the stairs when he knew his leg was bad was an intervening act • It cuts his liability off • The Court agreed, saying that the claimant’s act had been an intervening act, because the claimant’s actions were unreasonable • Now how do we distinguish between a claimants act intervening the liability or just being partial fault?

Spencer v Wincanter • Someone injured at work • Ends up having their leg amputated • Sometime after the event, the man takes his vehicle to the petrol station to put petrol • He gets out and tries to put in petrol in the car, without any support (crutch, etc) • He suffers a fall, and the fall leads to serious injuries than then cause him to be in a wheelchair for life • He makes the argument that had he not had the injury at work he would not have been in that situation • The defendant argued that no, the act by the man was unreasonable and cuts off all liability • The Court decided that although the claimant does bear some responsibility for the outcome, it wasn’t unreasonable enough to act as an intervening act • For the McQ and Holland principle to apply, the actions of the claimant need to be highly/very unreasonable

Froom v Butcher For Contributory Negligence: • Need to be at fault in relation to their harm, not the incident that actually happened • In relation to the damage suffered, rather than the incident itself Facts: • There’s a road accident • There’s one driver at fault, and one who’s not (claimant) • When the accident occurred, the claimant had chosen not to wear a seatbelt • This made his injuries quite a lot worse • Apportionment: The normal range of reduction for not wearing a seat belt would be 15-20% • Did he need to be at fault for the incident itself, for Contributory Negligence to apply, or only to the additional harm that he suffers? ‘Negligence depends on a breach of duty, whereas contributory negligence does not. Negligence is a man's carelessness in breach of duty to others. Contributory negligence is a man's carelessness in looking after his own safety. He is guilty of contributory negligence if he ought reasonably to have foreseen that, if he did not act as a reasonable prudent man, he might hurt himself.’

Reeves v Commissioner of Police [2000] 1 AC 360 • The claimant was in police custody • And whilst there, he hung himself and committed suicide • A claim was brought saying the police owed him a duty of care, because they knew he was suicidal • The first argument from the defendants was that the claimant’s own act of committing suicide was a novus actus interveniens • This was not supported by the Court, because it would have the effect of emptying the duty that the police owed, of all its effectiveness • Could Contributive Negligence work? • The Court found that the claimant had acted intentionally and that thus had to bear some responsibility for the outcome • Damages in this case were reduced by 50%

Lord Hoffman: … it does not follow that no prisoner committing suicide in consequence of a breach of duty by the police or prison officers can ever be treated as sharing the responsibility for his own death.

Phethean-Hubble v Coles [2012] RtR 31 • A 16-year-old boy riding his bike on the road • Suddenly goes into the path of the car, and they have a collision and the boy is seriously injured • The car was speeding when it happened, and for that reason the defendant owes a duty to all road users • That duty was breached as he was not acting as a reasonable user • But was the boy (claimant) contributory negligent, by going into the path of the car? • And Should the court take into consideration that the claimant was a child?

• The trial judge considered it and reduced the damage only by 1/3 • But at the Court of Appeal said there was no need to take into consideration that he is a child because the age had no bearing on it (He was not doing any activity particular to children) • So the reduction was then made by 50%

Black LJ: Reminding myself that I am not making the decision from scratch but reviewing the judge’s decision, I conclude that his starting finding of 50% was one which was open to him on the facts of the case. I cannot, however, sustain his conclusion that it would be just and equitable for the reduction in damages only to be by one third. I am persuaded by the defendant’s submissions that there was no reason to treat the claimant as if he were anything other than an adult in this respect and that the judge erred in his approach to this. It follows that for the judge’s one third reduction in damages, there should be substituted a 50 percent reduction.

Breach of Duty

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Trying to measure the defendants behaviour against the standard of a reasonable person However many characteristics they have will not be attributed to the reasonable person So age (only if the defendant was a child), mental capacity, expertise are not considered When looking at children for example, it would be unreasonable to compare their behaviour to that of an adult reasonable person

Causation a. At least partly cause own outcome – don’t have to cause the incident itself (But For) b. Usual causal principles apply – balance of probabilities. c. St George v Home Office (Remoteness) • Long term drug addiction which causes him to suffer from fits and epilepsy • Ends up in prison, and due to the withdrawal of drugs there, it gets worse • He was placed in the top bunk of a jail cell • He suffers a fit whilst on the top bunk, falls out, land on his head and has severe injuries • He claims the jail breached their duty of care towards him by placing him in the top bunker whilst knowing he suffered from fits • The Home Office argued he had Contributory Negligence by engaging in this long term lifestyle of taking drugs • The Court decided the claimants behaviour was too remote in time, place and circumstance to be sufficiently connected to the negligence of the prison staff • Thus, he was not found liable

Apportionment • The causative potency of the parties’ acting’s must be taken into account. Two factors are relevant in this connection. • First, in apportioning responsibility account must be taken not only of the relative blameworthiness of the parties but also the causative potency of their acts … a car is potentially a dangerous weapon, and accordingly the attribution of causative potency to the driver must be greater than that to the pedestrian. • Have to assess the relative level of blameworthiness as between the parties • Usually this is done in a percentage basis

• They consider the defendant’s unlawful act with claimant’s neglect for their safety (unlawful act?)

Jackson v Murray • A 13-year-old girl gets off a bus and runs straight onto the path of an oncoming car • She brings a claim against the car driver • And although liability for the D is existent, at the trial it is felt she bears 90% of the liability for own injuries • The Court of Appeal reduced her liability to 70% • But the Supreme Court is against this • They decided the driver was at fault because he had not slowed down as he approached the bus, in anticipation for passengers coming out • The action of the defendant of driving a car is considered to be more serious than the claimant who is just walking down the street so the SC said she was 50% responsible, different from the trail judge who said she was 90% responsible

Causative Potency • The potential of damage that can be caused • The idea that whatever the defendant is doing as the driver of a car is a very potentially dangerous thing that has a lot more causative potency to it than being a pedestrian for ex •”The operation of a potentially dangerous weapon”

Volenti non fit Injuria Full Defence (for defendant) Difficult to Establish

• Translation: ‘To one who volunteers, No harm is done’

• Requirements: (objective) Having full knowledge of the nature and extent of the risk Freely and voluntarily agree to incur it Morris v Murray per Fox LJ • Voluntary acceptance of risks • Involves saying the claimant has fully accepted a given risk, so that he can’t complain he has been wronged by the negligence of the defendant • Tests are objective

Having full knowledge of the nature and extent of the risk Morris v Murray • A couple of acquaintance guys, in a pub together drinking heavily • One says, in a moment of clarity and lucidity, “Let’s go for a ride in my airplane”

• So the pilot (defendant) and the passenger (claimant) head out to the airfield • The passenger has to help get the plane ready for takeoff, runway, etc. • They get into the plane, have a short flight, and the passenger is killed. • The passenger’s estate brings a claim against the pilot • As a defence the pilot raises the defence of Volenti non fit Injuria • That the passenger had full knowledge of the occurrence and knew all the risks and shouldn’t be allowed to make a claim in negligence • Is this a situation where the claimant was too drunk to appreciate the risks? • The Court decided that the passenger was in sufficient awareness (The claimant should usually not bear the loss, but here the court decided to leave the loss where it falls)

Fox LJ at 17: “It might be said that the merits could be adequately dealt with by the application of the contributory negligence rules. … It seems to me, however, that the wild irresponsibility of the venture is such that the law should not intervene to award damages and should leave the loss where it falls.” They were drunk and drove the plain so the defendant raised this defence, but was the claimant too drunk to appreciate the risk? The court said the claimant was not so drunk so he fully accepted the risk (wild irresponsibility)

Freely and voluntarily agree to incur it • No element of compulsion should be involved Corbett v Cumbria Kart Racing Club • A competitor at an amateur motorcycling event, who suffers serious injuries • They was a vehicle that left track and went through a tire barrier and crashed into an ambulance •The tire barrier was deemed to be ineffective and the ambulance was parked in a very inappropriate place • Claimant brings a claim, and defendant puts up Volenti non fit Injuria • Saying that by entering into the competition themselves and signed a competitors form, they had appreciated what the risk would be • And fully consented to any risks involved with being on race track • The court held that the ambulance’s position and inadequate barrier were breaches of duty • But that the claimant had not agreed to those risks by signing up to be a competitor.

Although the claimant did sign the competitors signing sheet in the terms set out this could be neither volenti (not pleaded) nor contributory negligence. Even if the claimant had noticed the position of the ambulance at the time of the practice session – contrary to Mr Hales' position – I do not consider it was for him to assess the adequacy of the tyre barrier. He was entitled to assume that steps would have been taken by those in charge of safety at the circuit to see that the circuit was reasonably safe and in particular would have taken reasonable care to provide appropriate barriers. Freely and voluntarily accepted the risk – defendant said that by signing the agreement they have consented for any harm. The court said by simply signing the agreement does not mean you have agreed for a breach for the defendant who will not have provided proper barriers

Read v Lyons • In employment cases where the job involves a risky activity, can one say that the employee has voluntarily agreed to the risks associated with the job they’re doing? • Female employee of a Munitions Factory • She was required inspect explosives shells • She was required to be there under legislation, due to WWWII • She was injured in an explosion and was held to not have consented to risk of working in the factory

Lord Simmonds ‘It was made clear that the appellant was upon the respondents' premises only because, being registered under the National Service Acts, she was required to work there as an employee of the Armament Inspection Department of the Ministry of Supply. Had she been a free agent she would not have remained there. ‘

In consenting to risks you have to be an entirely free agent which is difficult to establish in employment cases. Circumstances when one isn’t a free agent:

1.

You cannot have consent if you have taken steps against harm e.g. Nettleship - The instructor asked if the learner had insurance S.149 Road Traffic Act 1988 (Volenti doesn’t apply)

2. 3.

When you assisted in an emergency situation you do not accept the risks Baker v Hopkins A finding of defence will take out the duty of care owed by the defendant Reeves

Baker v Hopkins • Where one has voluntarily assisted in a situation considered to be an emergency, ha ve the risk not been voluntarily accepted? • Malfunctioning machinery affixed to a well • Pumping equipment, engine, giving off noxious gasses • The workers knew it wasn’t working properly but were told not to go down the well • They ignored this and went down to go and fix it • They were quickly overcome by the gasses and became unconscious • People on the surface became very concerned and called a doctor in the vicinity • He obviously knew there was a risk, but he wanted to act to try and safe their lives • So they tied a rope around his waist, to pull him up quickly if anything happens • Sadly, this doesn’t work and he dies • His estate brings a claim against the defendant, and they argue he voluntarily accepted the risk in what he decided to do

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Morris LJ at 976: ‘If C, actuated by an impulsive desire to save life, acts bravely and promptly and subjugates any timorous overconcern for his own well-being or comfort, I cannot think that it would be either rational or seemly to say that he freely and voluntarily agreed to incur the risks of the situation which had been created by A's negligence.’

Reeves • Claimant is un...