Defences
Defences
General Defences
Consent already considered in torts against person voluntary assumption of risk a broader defence
Volenti non fit injuria
Illegality
Ex turpi causa non oritur actio
Contributory Negligence
Not so general
Road Traffic Act 1972, s148(3) Where agreement can only be inferred from knowledge of previous careless conduct, or of Ds diminished capacity on occasion of N
Tan
Flexible approach considering a range of factors
Contributory Negligence
Historically, a complete defence crude understanding of causation History still important as what amounted to CN is still relevant
CN = partly to blame separate liability in negligence
Consequences of claimant being partly to blame in this sense were altered: Law Reform (Contributory Negligence) Act 1945
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Fault
fault means negligence, breach of statutory duty or other act or omission which gives rise to a liability in tort or would, apart from this Act, give rise to the defence of contributory negligence. Section 4 Williams interpretation slice section in two, negligence other act or omission which:
1. For defendant, gives rise to tort liability 2. For claimant, gives rise at common law to CN defence Standard Chartered confirmed this interpretation
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Three-part Inquiry
To establish and apply CN defence under Act: 1. Relevant fault on part of claimant 2. Claimants injury was partly the result of the claimants fault (causation) 3. In light of the causal contribution, reduction of damages as is just and equitable (apportionment)
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But includes intentional acts of claimant: Reeves, Corr v IBC Different for children: only if of such an age as to be expected to take precautions for his or her own safety: and then only if blame should be attached to him or her (Gough v Thorne, 1966)
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Causation
There is no clear guidance to be found in the books about causation... It is a matter of common sense more than anything else [F]oreseeability is not the decisive test of causation. It is often a relevant factor, but it is not decisive The mans negligence here was so much mixed up with his injury that it cannot be dismissed as mere history. His dangerous position on the vehicle was one of the causes of his damage Jones v Livox
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Causation ctd
The question is not what was the cause of the accident. It is rather what was the cause of the damage. In most accidents on the road the bad driving, which causes the accident, also causes the ensuing damage. But in seat belt cases the cause of the accident is one thing. The cause of the damage is another. The accident is caused by the bad driving. The damage is caused in part by the bad driving of the defendant, and in part by the failure of the plaintiff to wear a seat belt.
Froom v Butcher (1976, Ld Denning MR)
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Lifestyle Choices?
the claimants fault in becoming addicted to drugs and alcohol in his mid-teens was not a potent cause of the status and the consequent brain injury which were triggered by his fall... It was too remote in time, place and circumstance and was not sufficiently connected with the negligence of the prison staff or was not sufficiently mixed up with the state of things brought about by the prison staff to be properly regarded as a cause of the injury. [T]he claimant's addiction was no more than part of the history
St George v Home Office (2008, Dyson LJ)
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Apportionment
[C]onsideration should be given not only to the causative potency of a particular factor, but also its blameworthiness. But [in] most of these cases the only question is: what damages should be payable? This question should not be prolonged by an expensive inquiry into the degree of blameworthiness on either side, which would be hotly disputed. Suffice it to assess a share of responsibility which will be just and equitable in the great majority of cases.
Froom v Butcher (Ld Denning MR)
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Express clause that claimant voluntarily accepted risk relationship with s2(1) UCTA unclear
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Illegality
Different kind of defence matter of public policy that claimants should not recover if engaged in illegal activity criminality as focus, but also unlawfulness more broadly, immorality? BUT many expressions of defence and different circumstances in which it might apply Applies across legal subjects tort, trusts, contract etc Historically in tort, categories of case of illegality, eg joint illegal enterprise cases
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Gray ctd
Wider rule: you cannot recover for damage which is the consequence of your own criminal act
Rationale: it is offensive to public notions of the fair distribution of resources that a claimant should be compensated for the consequences of his own criminal conduct
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Overlapping Defences
Consider Pitts v Hunt again VAR looks possible on facts, but barred by statute, illegality bars claim instead
Murphy v Culhane: both VAR and illegality
Contributory negligence may still operate when illegality or VAR does not bar claim
Revill v Newbury; Reeves/Corr Although of course, no CN when no liability, as for VAR (Wooldridge v Sumner)
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