Negligence – Defences PDF

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This document should be looked at once negligence is understood. This document contains all of the information provided by lectures and text books on the defences to negligence. This contains, cases, principles and statutes....

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Negligence – Defences -

5 Main defences for negligence: o Contributory Negligence o Volenti non fit injuria o Ex Turpi Causa o Exclusion Clauses o Limitation

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Contributory Negligence Before 1945 if the defendant could establish some fault contributing to the damages on part of the claimant then the claimant would get nothing and the defence would be a full defence. Doesn’t apply to all torts, for example it doesn’t extend to a more deliberate tort such as tort of trespass to the person. This is a partial defence found in Section 1(1) of the Law Reform (Contributory Negligence) Act 1945, which states: o “Where any persons suffers damage as a result of his own fault, and partly as a result of any other person or persons a claim in respect to 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 is just and equitable having regard to the C’s share in the responsibility of the damage” This defence applies where C’s fault contributed to the damage suffered, along with situations where both parties are at fault (to varying degrees) and the fault is a cause of the damage suffered. Section 4 of the Law Reform Act 1945 describes fault as being, “negligence, breach of statutory duty or other act or omission which gives rise to liability in tort of would apart from this Act give rise to the defence of contributory negligence” There is a general rule that if the damage was highly probable to have occurred anyway then there will be no reduction. The reduction worked out by calculating the full amount of compensation and then removing the percentage that the court feels is just and equitable. There are 2 approaches, a mixture of circumstantial reductions (Rough and ready) and also fixed tariff reductions. The case of Froom v Butcher 1976 creates a fixed tariff reduction for not wearing a seatbelt during an accident. It was held that where wearing a seatbelt would have altogether prevented the injuries, the reduction should be 25%; and where the injuries would have been a good deal less severe then the reduction should be 15% and if it was that not wearing a seatbelt wouldn’t have made a difference to the injuries then the deductions will be 0%. In this case the driver had not been wearing a seatbelt for the reason that “he did not like wearing the belt because of the danger of being trapped in the vehicle after the crash”, and from the accident he suffered head and chest injuries along with a broken finger. This is a similar situation as to what reductions a motor-cyclist would face for not wearing a helmet as seen in O’Connell v Jackson 1972 after the

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motor-cyclist suffered more injuries for not wearing a helmet despite the accident being through no fault of his own. Froom v Butcher was applied. It can also be extended into wearing a helmet while riding a bike seen in Smith v Finch (however the deductions weren’t actually made). Fixed tariff approaches are made partly due to policy but also for certainty that assists the settlement of claims. It enables lawyers to easily work out what the damages should be meaning that there is less need to go to court. There cannot be a 100% deduction due to contributory negligence as seen in Pitts v Hunt 1990 after a pillion passenger was injured in a collision where he encouraged the rider to ride while intoxicated, uninsured and unlicensed. It was held that he couldn’t sue in respect of his injuries due to the circumstances. The case of Jackson v Murray 2015 provides a ‘rough and ready’ approach in that it is purely circumstantial. In this case a 13 year-old girl stepped from behind a mini-bus into the path of the defendant’s car going at 50mph on a 60mph road. It was initially held that the negligence was at 90% with regards to the girl, however at appeal it was held that they were at least 50/50 to blame due to the number of considerations that had to be made. This is seen to disagree with the case of Gough v Thorne 1966 after that case held that a child couldn’t be guilty of contributory negligence, after a child stepped out in front of a stopped lorry and an overtaking car hit her. Daly v Liverpool Corp suggests that less could be expected of an elderly person, similarly to children. Volenti Non Fit Injuria (Voluntary assumption of harm/risk) If successful this is a complete defence. In order for this defence to be available, C must have full knowledge of the nature and extent of the harm/risk of harm along with the knowledge of D’s intention to exclude liability. Alternatively there must be a voluntary agreement, in that C must have agreed (explicitly or impliedly) to accept legal risk of injury/harm. Or there must be an agreement to D excluding their legal liability. The agreement must extend to the tort and not just to general risk of harm. Smith v Baker and Sons 1891 looks into the acceptance of risk by an employee. The case concerns a workman employed to dig holes in rock close to a crane. The crane was moving heavy stone over the workmen’s head without due warning, and in turn C was injured. It was held that the mere fact that he undertook and continued in the employment with full knowledge and understanding of the danger did not preclude him from recovering damages. The situation above is complemented by ICI Ltd v Shatwell 1965 after two employees combined to disobey an order deliberately. They knew the risk involved and got hurt in the process. It was held that the employer had the defence of volenti non fit injuria. When it comes to rescuers in a situation it is seen that they have not voluntarily agreed to run the risk that the person who caused the situation was negligent. In Baker v Hopkins & Son Ltd 1958 The defendants were a firm of contractors who had been employed to clean out a well. H, the managing director of the firm, caused a petrol engine to be fitted to the well about 30 feet below ground. After the engine had been running, H realised

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that the fumes were dangerous and warned his employees not to go down the well. The employees disregarded the warning and went into the well the next day and were overcome by the fumes. A doctor then attempted to rescue the employees but was overcome by the fumes and in turn they all died. It was held that the defendants were not only liable for the death of the employees but also the doctor. Section 149 of the Road Traffic Act 1988 eliminates the volenti non fit injuria defence between drivers and passengers in motor vehicles as can be seen in Pitts v Hunt 1990, however the section doesn’t apply to other modes of transport such as a plane seen in Morris v Murray 1990 after the crash a plane and the pilot dies and the passenger brings a claim on the estate. The defence of volenti did succeed, as it was obvious that the passenger knew that the pilot was drunk and by getting onto the plane with him he voluntarily assumed the risk of harm. Ex Turpi Causa Non Oritur Actio (Illegal act) This is a general and complete defence usually viewed as the ‘public policy bar’ that applies to a range of torts, not just negligence. This defence generally requires serious criminal conduct and is formulated in 2 ways: o C cannot recover for the consequences of a criminal sanction imposed as a result of his own unlawful act as seen in Gray v Thames Trains 2009 after a G was in a traincrash caused by T, in which he developed PTSD and later went on to stab someone to death for getting in front of his car. He pleaded guilty but attempted to sue T for the damages that ensued from PTSD. It was seen that a rule of law based on public policy, an aspect of the wider principle of ex turpi causa, prevented a person from recovering compensation for losses suffered in consequence of his own criminal act or, more narrowly, prevented a person recovering for damage that was the consequence of a sentence imposed on him for a criminal act. o Secondly, C cannot recover damages for losses they suffer while engaged in criminal activity as seen in Pitts v Hunt. Delaney v Pickett 2011 went on to provide that there must be a strong causal link between illegality and the harm suffered. In Delaney they were importing cannabis oil and in the transport of it they were in an accident and he tried to claim. As it was an illegal act being the true cause of the injury it means that the claim failed. Pitts v Hunt looked at the ‘Affront to public conscience’ test in that it is based upon public policy and the idea that compensating criminals for the consequences of their crimes would bring the law into disrepute. Gray v Thames Trains Ltd brings about the causation test, which looks at whether the damage suffered by C were caused by his own criminal acts or by D’s tort (This was applied in Delaney v Picket 2011). Cant claim for consequences of a criminal sanction. Joyce v O’Brien 2013 endorses the causation test in regards to joint criminal enterprise where the harm was a result of the direct acts of another party to that enterprise. In this case J fell from the back of a van driven by O. O pleaded guilty to dangerous driving after O and J had been making their escape after stealing a set of ladders.

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Hounga v Allen looks at the connection between the illegality and the tort after H moved to the UK in order to work for X. To do this she had to obtain a false identity and she eventually overstayed her VISA. During her employment she was subject to serious physical abuse and was thrown out of the house after an altercation with X, thus dismissing her. Patel v Mirza 2016 not a tort case but guidance is given for the use of the illegality defence. There should be wide discretion to apply the defence on policy grounds. This was because it seemed irrelevant to give a clear set of rules for criminal activity. Any judgment should be structured to articulate the public policy grounds for the allowing of the defence or its denial. Exclusion Clauses Look into the consumer rights act The Unfair Contracts Act 1977 looks at exclusion clauses with regard to business liability. Section 2(1) provides that it cannot exclude liability for death or personal injury Section 2(2) provides that other loss and damage will only be valid if it satisfies the reasonableness test. This has recently been amended by the Consumer Rights Act 2015 Limitation Normally the limitation period is 6 years from date of knowledge of the acts. For personal injury actions there is a 3-year limitation. Sections 2, 11-14 &33 of the Limitation Act 1980 look at the time limits with regards to bringing a tort action. A v Hoare 2008 is a case that deals with sexual abuse of people during their childhood. It was held that the correct approach was to ask what the claimant knew about his injury, add any "objective" knowledge which might be imputed to him under s.14(3) and then ask whether a reasonable person with that knowledge would have considered the injury sufficiently serious to justify his instituting proceedings for damages....