#17353 - Defences To Negligence Claims - GDL Tort Law

Contributory Negligence (Partial Defence)

• Law Reform (Contributory Negligence) Act 1945, s 1(1):

  • “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.”

  • Imports a great deal of judicial discretion.

• Two elements:

• 1) The claimant was acting negligently

  • Jones v Livox Quarries [1952] – Claimant was riding tow bar when vehicle crashed. Claimant partially at fault for being in a dangerous position. Contributory negligence.

    • Lord Denning: “aperson 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 be hurt himself: and in his reckonings he must take into account the possibility of others being careless.”

  • Brannan v Airtours [1999] – C was on holiday with free unlimited alcohol. Climbed on table and was struck by fan. Was warned not to. Tour company held 50% liable for putting tables under fans.

  • Badger v Ministry of Defence [2005] – The widow of the deceased sought damages after his negligent exposure to asbestos whilst working for the defendant. He had contracted lung cancer and died aged 63.

    • Smoked 20/day 16-53, then 8-10 cigars a day.

    • Court held from the 1970s when Government started to warn of adverse effects of smoking defendant became contributorily negligent. Court reduced damages by 20%

  • The key to this test is the action of the reasonable person:

    • Jones v Boyce [1816] – Claimant believed carriage was going to crash so jumped out. Carriage did not crash. D raised contributory negligence. Failed as C acted as a reasonable person would have.

  • The court will take into account age:

    • Gough v Thorne [1966] - Accident was the fault of the defendant, but the claimant was partially to blame for not checking the road before crossing it. Court held that the claimant must be judged by the standards of a child of their age.

      • Salmon LJ said: ‘The question … depends on whether any ordinary child of 13 can be expected to have done any more than this child did.”

• 2) The claimant’s actions were a cause of the damage.

  • Froom v Butcher [1976] – C was in a car crash with D, but was not wearing a seatbelt. Although not compulsory at the time held that a reasonable person would have worn a seatbelt.

    • Lord Denning: although the driver “was a prime cause of the whole of the damage…in so far as the damage might have been avoided or lessened by wearing a seat belt, the injured person must bear some share.”

    • Reduced compensation by 20% (four times more likely to be injured not wearing a seatbelt).

  • Owens v Brimmell [1977] – Both the driver and his passenger had drunk about 9 pints of beer, and on their way home the driver lost control of his car so that it collided with a lamppost.

    • Damages reduced by 20% as getting in a car knowing the driver is drunk you are negligent

• Then court must ask to what extent the Claimant’s damages should be reduced. Judges tend to pick round figures as cannot quantify precisely.

• This defence is not available for assault or battery:

  • Co-operative v Pritchard [2011]– C physically removed from shop she worked in after an argument. This was a battery. Contributory negligence not available as this was an intentional tort.

Volenti Non Fit Injuria (‘Volenti’) – No harm can be done to one who consents.

• Judges generally look at the moral question of whether someone deserves no compensation.

• Three Requirements:

  • The claimant must have agreed, voluntarily, in full knowledge of the extent of the risk.

• 1) The Claimant expressly or impliedly agreed to the risk.

  • Nettleship v Weston [1971] – held that volenti did not apply to the instructor when learner crashed the car.

    • Lord Denning: “Knowledge of the risk of injury is not enough. Nor is willingness to take the risk of injury. Nothing will suffice short of an agreement to waive any claim for negligence.”

• 2) The Claimant must have done so voluntarily

  • This rarely applies with rescuers:

    • Baker v TE Hopkins [1959] – Hopkins told his employees not to go down well until fumes from petrol engine had cleared. Employee A went down and was overcome by the fumes. Employee B went down to help. Dr Baker went down as a rescuer, but all three died of carbon monoxide poisoning.

      • Defence of consent did not apply as the doctor had not replied with ‘reckless disregard to his own safety’ therefore was not consenting to the risk of being injured.

    • Haynes v Harwood [1936] – a police man was injured capturing a bolting horse. Horse’s owner had a duty of care to the rescuer, but the rescuer has not consented to injury where they are acting to protect others.

  • May apply when acting against instructions of employer

    • ICI v Shatwell [1965] – Cs injured when they used too short a wire while testing explosions in a quarry. Volenti applied as The brothers had deliberately acted in defiance of the employer's express instructions in full knowledge of the risks.

  • Unlikely to apply with suicide:

    • Reeves v MPC [2000]– facts above. At trial held volenti applied. In HoL held that volenti could not apply as if it did it would essentially deprive the duty of substance

• 3) The Claimant must have had full knowledge of the nature and extent of the risk

  • Wooldridge v Sumner [1962] – photographer at horse show who had no experience of horses. Situated within the ring where the horse show took place (rather than behind the spectator barriers) when one of the horses galloped towards him at a significant speed after the rider lost control of it, knocking him down.

    • There was no breach of duty so the Claimant's action failed.

    • Re volenti, held that it would have failed as a defence as did not have full knowledge of the nature and extent of the risks.

    • Diplock LJ: “The consent … requires on the part of the plaintiff at the time at which he gives his consent full knowledge of the nature and extent of the risk that he ran”

  • Morris v Murray [1990] – Drinking all day, D (who had consumed ~17 whiskies) suggested they went flying. Plane crashed, pilot died. Consent applied as accepting a ride in an aircraft from an obviously heavily intoxicated pilot was so glaringly dangerous.

• There are various statutory limitations to volenti:

  • a) Unfair Contract Terms Act (UCTA) 1977, s.1 and 2

    • Businesses can exclude other types of harm so long as the terms are reasonable.

    • S.2(1) Cannot exclude liability for death or personal injury.

  • b) Consumer Rights Act 2015, s. 65 and 62

    • s.65(1) Cannot exclude liability for death or personal injury.

    • Can exclude other reasonable types of harm.

  • c) Road Traffic Act 1988, s 149

    • Driver of a motor vehicle cannot use consent against a passenger

    • NB this does not apply to pilots of a plane per Morris v Murray

Ex Turpi Causa Non Oritor Actio: - No action in law can be founded on an illegal act’

• Ashton v Turner [1981] – Burglary getaway driver crashed the car. Passenger (who had been involved in burglary) tried to sue the driver. Claim faield on basis of illegality.

• This is not a carte blanche, even criminals have rights:

  • Revill v Newbery [1996] – 76yo man slept in shed with shotgun to prevent another break in. Awoke at 2am and fired a warning shot. This hit C. C brought a civil suit for injuries. This was successful (reduced 2/3 by contributory negligence) held illegality did not apply.

    • Neill LJ: “an occupier cannot treat a burglar as an outlaw and has defined the scope of the duty owed to him.”

• The defence is rooted in public policy:

  • Vellino v CC of Greater Manchester [2002] – Claimant jumped out of second floor window to escape arrest. Suffered severe injuries. Argued that police had duty of care to prevent him injuring himself.

    • On appeal illegality allowed 2:1. Either there was no duty of...