Negligence Defense - This is specifically made for exam purpose of tort law. It includes all the PDF

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Lui Sze Nok TORT LAW – NEGLIGENCE - DEFENSE Defendant (D) may raise a defence, once claimant (C) has proved: 'on the balance of probabilities', D owed duty to C, breached that duty & caused C's loss or harm • multiple defences can be argued but must be proved 'on the balance of proba...

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Lui Sze Nok

TORT LAW – NEGLIGENCE - DEFENSE Defendant (D) may raise a defence, once claimant (C) has proved: 'on the balance of probabilities', D owed duty to C, breached that duty & caused C's loss or harm • multiple defences can be argued but must be proved 'on the balance of probabilities' to succeed • general defences apply to all torts & have public policy reasons • types of defence: absolute defence (completely bars claim) & partial defence contributory negligence (limits D's liability) • absolute defences: mistake, necessity & limitation, excluded liability consent & illegality

1. VOLENTI NON FIT INJURIA A defendant may raise consent, also referred to as a voluntary assumption of risk ('volenti non fit injuria'), as an absolute defence. If the defence is accepted a claimant will be prevented from recovering redress for a defendant's breach of duty. In this case, (the defendant) would likely to establish the complete defense on volenti non fit injuria to absolve all of his liability. Here concerns whether there is a freely entered and voluntary agreement by (the claimant), in full knowledge of the circumstances, to absolve (the defendant) of all legal consequences of their actions.

A. Claimant's knowledge of the risk The first element a defendant must establish is that the claimant had full knowledge of the nature and extent of the risk. It is insufficient for the claimant to have merely known that the risk exists. The courts adopt a subjective test to determine whether the particular claimant fully understood the risk. I mpe r i alChe mi c alI ndus t r i e sLt dvShadwe l l

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Th ed e f e nd a n tmu s ts h o wt ha ton l yd i dt hep l a i nt i ffkn o wt heda n g e rbu tt h a thea l s oa pp r e c i a t e dt hena t u r e a n de x t e ntoft her i s k  Th ede f e n da n tmu s ts ho wt h a tt hep l a i nt i ffh a da c t u a lkno wl e d g eoft her i s k * Th ep l a i nt i ffwi l ln o tb ev o l e n swh e r eh ec on t i nu e st owor ku nd e rc i r c u ms t a nc e swh i c hgi v ehi mn oc ho i c eo r c o n t i n ue st owo r ka f t e ri n f o r mi n gt h ee mp l o y e roft her i s ki n v ol v e di nhi swo r k( Kno wl e d g eo ft heda n g e ri son l y ab a rwh e r et h ep a r t yi sf r e et oa c to ni t ,s ot ha ti n j ur yc a nbes a i dt obedu es o l e l yt ohi so wnf a u l t )

b) Agr e e me ntt or unt her i s k Thep l a i n t i ffmu s th a v ee xpr e s s l yo ri mp l i e d l ya gr e e dt ot a k et h er i s ko ft h ede f e nda n t ’ sn e gl i g e n c e

Nettleship v Weston -The defendant who granted to learn driving had her own car -The plaintiff asked about the 3rd party liability insurance before agreed to give driving instructions in her carinferring no agreement to take the risk -The defendant lost control of the car, injuring the plaintiff -CA rejected the defence of volenti pleaded by the defendant since the plaintiff did not agree to waive any claim for injury that might befall (降臨)him

a) Drunk Case: MORRIS V MURRAY [1991] 2 QB 6 FACTS: The plaintiff was severely injured in a light aircraft accident and the pilot was killed. The plaintiff had been drinking with the pilot prior to taking the flight. The plaintiff sued the pilot's estate, but the defendant raised consent as a defence. ISSUE: Had the plaintiff appreciated the risk? HELD: The Court of Appeal applied a subjective test to find that the plaintiff had not drunk so much that he was incapable of appreciating the nature and extent of the risk he is undertaking. VS Case: BARRETT V MINISTRY OF HEALTH [1995] FACTS: an airman got so drunk that he became unconscious and died of suffocation from his own vomit. It was pleaded that the deceased went on drinking excessively and thereby assumed the risks of harm by drinking. HELD: The court rejected the defense of volenti as the rinks had clouded his mind and rendered him incapable of appreciating the risks involved in excessive drinking. b) Self harm due to psychiatric illness - Suicide Case: KIRKHAM V CHIEF CONSTABLE OF THE GREATER MANCHESTER POLICE [1990] FACTS: P’s husband who had suicidal tendencies was taken into custody by the police. The police knew that he was a suicide risk, and had made attempts to commit suicide before. Subsequently, the police transferred P’s husband to the prison authority but the police failed to inform them about the suicide risk of the P’s husband, who then commited suicide. D pleaded, inter alia, volenti non fit injuria on the deceased’s part. HELD: P’s husband was not truly volens, ‘having regard to his mental state, he cannot, by his act, be said to have waived or abandoned any claim arising out of his suicide. So the court rejects the defence of volenti non fit injuria”.

Case: REEVES V COMISSIONER OF POLICE OF THE METROPOLIS [2000] 2

HELD: Trial judge: Where the fact were similar, he refused to allow the defense of volenti non fit injuria because on his findings, the deceased was of sound mind. CA: allowed P’s appeal and held that the D’s duty of care existed irrespective of the deceased being of sound or unsound mind, and as the deceased’s suicide was the very act against which the defendant was to taken precaution. The deceased’s suicide did not constitute a new or intervening act and the defense of novus actus interveniens and volenti non fit injuria were inapt and could not be invoked to deny P’s claim.

c) Other cases Succeed: Case: GEARY V J D WETHERSPOON PLC [2011] HELD: the defense of volenti non fit injuria succeeded where the P, despite knowing of the prohibition not to slide down the D’s banisters, did so and was injured. Ca s e :Ti c he ne rvBr i t i s hRa i l wa yBoa r d Th epl a i nt i ffe nt e r e dont ot hed e f e nda nt ’ sr a i ll i net ot a k eas h or t c u t Appa r e nt l ya gr e e i n gwi t hf u l lunde r s t a ndi n go ft her i s ks Th ec ou r tf oun dt ha ts heha dwa i v e dhe rr i ght s Fail: Case: TOMLINSON V CONGLETON BC [1990] FACTS: P dived into D’s shallow lake and hit his head on the bottom. D had prohibited the public from swimming in the lake. HELD: The defense of volenti non fit injuria failed because P did not know that the water where he dived was so shallow and that he would be injured. However, P’s damages were reduced by two thirds for his contributory negligence.

d ) Vo l u nt a r i ne s s( f r e ec ho i c e , f r e ewi l l ) Th epl a i nt i ffmu s tb es h o wnt oh a v ea c t e da c c o r di n gt ohi so wnf r e ewi l l i ) Und e rt h ep r e s s u r e :e mp l o yme ntr e l a t i o ns h i p I pKi nKo kvFi l mPo we rCoLt d  Th epl a i n t i ffs t u n t ma nwa se mp l o y e db yt h ed e f e n da n tfil mc o mp a n yt od r i v ea1 6s e a t e rmi n i b usi n t o t h es e a  Si nc et h ed i r e c t o rwa sur g i n gt he mt oma k et he ms e l v e sr e a d yf o rt h es h oo t i n go ft h es t u n t ,t h ep l a i n t i ff wa sun a b l et oo b j e c tt ot hr e epr o bl e ms  Th epl a i nt i ffs uffe r e df r o mi n j u r i e swhe nhee s c a p e dd ur i n gt h er e s c u e  Th ede f e n c eofv o l e nt iwa sr e j e c t e d ( Th ed e f e n da n te mp l o y e rg a dn o tt a k e ns uffic i e n tp r e c a ut i o ns ,a n dt hep l a i nt i ff’ sa p pa r e n twi l l i n gn e s st o c o mp l e t et h es t u n tu nd e rt hep r e s s u r et ha te xi s t e di nt hefil ms ho o t i n gs c e n ec ou l dno tb et a k e na sa n a gr e e me ntt oa c c e ptt her i s k sa n dwa i v eh i sr i g ht s )

B. Claimant's consent Secondly, a defendant must prove the claimant willingly consented to taking the risk of injury because 3

simple knowledge of the risk ('sciens is not volens') is not sufficient. The consent must be freely and voluntarily given, without duress or fear. Therefore, the relationship between the parties may be taken into consideration. The claimant's consent to the risk may be expressed orally or in writing or implied by their conduct. However, it is unusual for consent to be implied, as it is difficult to distinguish that the claimant consented to run the risk of harm and also accepted the risk of the defendant's negligence.

Case: NETTLESHIP V WESTON [1971] FACTS: D who wanted to learn driving had her own car. P agreed to give driving instruction in her car. D lost control of the car injuring P. HELD: CA rejected the defense of volenti non fit injuria pleaded by the defendant since P did not agree to waive any claim for injury that might bafall himLord Denning: Knowledge of the risk is not enough. Nor is a willingness to take the risk of injury. Nothing will suffice short of an agreement to waive any claim for negligence. P must agree, expressly or impliedly, to waive any claim for any injury that may befall him due to the lack of reasonable care by D; or more accurately, due to the failure of the defendant to measure up to the standard of care that the law requires of him.” The consent that is relevant is not consent to risk of injury but consent to the lack of reasonable care that may produce that risk.

a) Intoxicated drivers The defense of Volenti non fit injuria will most likely fail. Moreover, there is statutory control to motor vehicles. Case: DANN V HAMILTON [1939] FACTS: P, her mother and another person named Taunton got a lift from one Hamilton. Taunton left the car and P and her mother continued on. As Taunton left the car, he told P and her mother, “You two have more pluck than I have” to which P replied, “You should be like me. If anything is going to happen, it will happen.” Shortly thereafter, the car met with an accident, killing the driver and injuring P. It was common ground that the accident took place because Hamilton had taken an excessive amount of drink and P knew that Hamilton was under the influence of drink. ISSUE: whether the D could successfully plead the defense of volenti non fit injuria. It is a question of fact. HELD: the defense of volens would fail. Where P took a lift with a driver with the knowledge that the driver had materially reduced his capacity for driving safely through drink, those facts alone did not imply consent to suffer harm or absolve the driver from liability for any subsequent negligence on his part.

CASE: PITTS V HUNT [1990] 3 ALL ER 344 FACTS: The plaintiff was severely injured in a motorbike accident, when travelling as a passenger. The plaintiff knew that the driver, who died in the accident, was drunk, uninsured and did not have licence. The plaintiff sued the driver's estate, but the defendant raised consent as a defence. 4

ISSUE: Could consent be used as a defence? HELD: The court found that s.148(3) Road Traffic Act 1978 prevents a defendant driver raising consent as a defence in circumstances where insurance cover for passengers is compulsory. The plaintiff had implied agreement to the risk by travelling as a passenger but consent was unavailable as a defence because of the statutory provisions. However, the court found that there was contributory negligence on the part of the plaintiff. Beldam LJ: '.. it is no longer open to the driver of a motor vehicle to say that the fact of his passenger travelling in a vehicle in circumstances in which for one reason or another it could be said that he had willingly accepted a risk of negligence on the driver's part relieves him of liability for such negligence...'. Therefore, under s.149 Road Traffic Act 1988, a defendant is unable to rely upon consent as a defence in cases where a passenger has been injured and insurance cover for the passenger was compulsory. This applies express agreements between driver and passenger, such as a notice stating passenger travel at their own risk and to implied agreements. However, contributory negligence is likely to succeed.

The Motor Vehicle Insurance (Third Party Risks) Ordinance (Cap 272) provides that the defense of volenti non fit injuria will not succeed in cases involving certain motor vehicles. (2) Where a person uses, or causes or permits any person to use, a motor vehicle on a road in such circumstances that under section 4(1) there is required to be in force in relation to his use of it such a policy of insurance or such a security in respect of third party risks as complies with the requirements of this Ordinance, then, if any other person is carried in or upon the vehicle while the user is so using it, any antecedent agreement or understanding between them (whether intended to be legally binding or not) shall be of no effect so far as it purports or might be held(a) to negative or restrict any such liability of the user in respect of persons carried in or upon the vehicle as is required by section 6(1) to be covered by a policy of insurance; or (b) to impose any conditions with respect to the enforcement of any such liability of the user, and the fact that a person so carried has willingly accepted as his the risk of negligence on the part of the user shall not be treated as negativing any such liability of the user.

b) Rescuers Consent is unlikely to succeed against a claimant who has been injured when acting as a rescuer. Generally, as a matter of policy, rescuers are encouraged. Furthermore, a rescuer is seen as acting under a legal, moral or social duty and therefore, has not freely consented to the risk of being injured in an emergency situation created by the defendant's negligence. Case: HAYNES V HARWOOD [1935] 1 KB 146 FACTS: The plaintiff, a policemen saw the defendant's horse running loose in a crowd. The plaintiff was injured when he decided to chase after the horse. The defendant argued that the plaintiff had consented to the risk. 5

ISSUE: Could consent be used as a defence? HELD: The defence of consent was not successful. It was reasonably foreseeable that a person would act to intervene, especially the defendant who is under a general duty to assist and that injury may occur as a result. Greer LJ: '.. I think it would be absurd to say that if a man deliberately incurs a risk he is entitled to less protection than if he acts on a sudden impulse...'.

Case: CUTLER V UNITED DAIRIES [1933] 2 KB 297 FACTS: The plaintiff was injured when he entered a field to calm the defendant's horse. The defendant's horse had bolted into the field and the plaintiff stopped to help. The defendant raised consent as a defence. ISSUE: Could consent be used as a defence? HELD: Consent was a successful defence because the plaintiff did not need to intervene as the horse presented no immediate danger. Therefore, the plaintiff was not acting under any duty to rescue and was found to have willingly consented to the risk of injury.

Case: BAKER V TE HOPKINS [1959] 1 WLR 966 FACTS: A doctor was killed when he entered a well to attempt to rescue two of the defendant's workers. ISSUE: Could consent be used as a defence? HELD: The situation was clearly dangerous and the victim decided to enter the well anyway, however, his conduct did not amount to consent.

Case: TAM SAU FONG V SHENG KUNG HUI DIOCESAN WELFARE COUNCIL [2002] FACTS: a home helper employed by D, a government-subvented welfare organization, sustained injuries when she tried to restrain a person she was caring for, from attacking another. HELD: P acted by reflex in response to an emergency and neither the plea of volenti non fit injuria nor the plea of contributory negligence could be successfully pleaded. Po l i c yc o nc e r n( r e s c ue r ) Where a person goes to rescue another person, or the defendant or the defendant’s property from a danger created by the defendant’s negligence, the latter cannot rely on the defence of volenti Tam Sau Fong v Sheng Kung Hui Diocesan Welfare Council  A home helper employed by the defendant  The helper sustained injuries when she tried to restrain a person she was caring for, from attacking another  The court held that the plaintiff acted by reflex in response to an emergency and that neither plea of volenti nor the plea of CN could be successfully pleaded

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c) Workers Generally the defence of consent rarely succeeds in cases between an employer and employee. This has developed over time with earlier cases showing that the courts were more willing to accept the defence.

Case: WOODLEY V METROPOLITAN DISTRICT RAILWAY CO (1877) 2 EXD 384 FACTS: The plaintiff was injured when he was working on a railway for the defendant. The plaintiff would have very little time from becoming aware of an oncoming train to get to a safe place. ISSUE: Could consent be used by the employer as a defence? HELD: Consent defence was accepted as the plaintiff voluntarily undertook the work, knowing the danger.

Case: BOWATER V BOROUGH OF ROWLEY REGIS [1944] KB 476 FACTS: The plaintiff was injured when riding a horse-drawn cart for the defendant, his employer. The horse was known to be unruly and the plaintiff initially refused, but eventually agreed. ISSUE: Could consent be used by the employer as a defence? HELD: The defence of consent was not successful. Scott LJ: '.. A man cannot be said to be truly willing unless he is in a position to choose freely, and freedom of choice predicates, not only full knowledge of the circumstances on which the exercise of choice is conditioned, so that he may be able to choose wisely, but the absence from his mind of any feeling of constraint so that nothing shall interfere with the freedom of his will...'

Case: CORR V IBC VEHICLES [2008] UKHL 13 FACTS: An employee was injured at work, due to the defendant's negligence. As a result he suffered severe depression as a consequence and committed suicide. ISSUE: Could consent be used by the employer as a defence? HELD: The House of Lords confirmed that the employee's suicide following negligence by the employer did not constitute consent. The severe depression, which led to the suicide, was a foreseeable consequence of the defendant's breach. Similarly, if a claimant is suing an employer for breach of a statutory duty the defence of consent is not likely to succeed on policy grounds.

Case: IMPERIAL CHEMICAL INDUSTRIES LTD V SHATWELL [1965] FACTS: p and his brother together with a 3 rd person were employed by D in a rock blasting operation. In breach of statutory provision and strict instructions from D, they tried out a new detonator without taking 7

proper precautions. An explosion occurred causing injury to P. He sued D holding him vicariously liable for the negligence of his brother. HELD: where an employee deliberately put himself in peril, he would be deemed to have consented to exempt the employer from liability.

Case: SMITH V BAKER & SONS [1891] FACTS: P was employed by D to drill holes in a rock. While he was doing so, cranes were lifting rubble over the heads of workers including P. That posed a physical danger to P. He protested to D but continued to work until hit by a falling rock. HELD: in the circumstances in which P was placed, he had no choice but to continue to work and the mere knowledge of the danger did not imply that he took the risk of injury voluntarily in order to exempt the employer from liability.

d) Sports It is well established that a participant or organiser of a sports event may be liable in Negligence, to competitors or spectators, if they are injured in the course of a sporting event. Case: SMOLDON V WHITWORTH [1997] PIQR 133 FA...