#4654 - General Defences - GDL Tort Law

• General defences work towards all torts

• Distinction btw defences which are complete (extinguishes liability) and partial (reduces liability)

• Burden of proof shifts to the defence when establishing defences

Volenti non fit injuria (“Volenti”): Complete defence

• “that to which a man consents cannot be considered an injury”

• In order to succeed in this defence must show that the claimant:

1. Knew of the nature and extent of the risk; and

2. Voluntarily agreed to the risk of being injured by the defendant; and, in some cases,

3. Voluntarily agreed that there should be no legal liability for this

1. Knowledge

   • Claimant has full knowledge of the risk: quite subjective – look at behaviour

   • Drink driver cases:

     • Dann v Hamilton: for policy reasons the driver is still liable – the passenger consents to be driven but does NOT consent to the car being driven badly

       • Lord Asquith – for volenti to apply it would have to be the equivalent of the claimant tampering with an unexploded bomb – restriction to extreme cases

   • Nowadays the courts use contributory negligence :Owens V Brimmell : both C and D had had 9 pints:

   • Morris v Murray: C consented to be flown home with a drunken pilot: defence of volenti succeeded, due to the extreme nature of the risk – ‘it beggars belief what the plaintiff did’

   • Sacco v Chief Constable of South Wales Police: P was in back of a police-van: he kicked the doors open and jumped out– drunken state did not negate the defence of volenti

2. Acceptance of risk (Agreement)

   • ICI v Shatwell: per Lord Reid – testing detonator – ignoring safety instructions/statutory requirements et: but held that the plaintiff exactly knew what they were doing and consented to the risk: Reid talked about the fact you don’t need a formal agreement - behaviour sufficient

   • Express agreement or implied by your behaviour

     • In medical practice – the more risky the treatment – the more likely it has to be express

     • E.g. Bungee jumping: form which accepts that there are risks

   • Netlleship v Weston: plaintiff was a driving instructor: consented to risks of learner driver

   • Dann v Hamilton: no implied agreement unless the risk was so extreme that it was the equivalent of ‘meddling with an unexploded bomb’

     • Similarly in Ratcliffe v McConnel: drunken student dived into pool without checking depth

3. Voluntary decision by the claimant

   • Consent must be genuine and voluntarily given without evidence of duress, blackmail, force, coercion etc. – courts will be very strict with this

   • Bowater v Rowley Regis Corp: Lord Justice Scott – ‘a man cannot be said to be ‘willing’ unless he is in a position to choose freely’ – entails ‘the absence of any feeling of constraint’

1. Employers

   • Smith v Charles Baker & Sons: defence of volenti denied due to economic duress : employees who know of the risk of their jobs are not necessarily voluntarily running those risks – little real option

   • ICI v Shatwell (above) - had consented to risk and had in fact broken employers rules

2. Rescuers

   • When a rescuer sues a defendant –usually volenti cannot be used

   • “Danger invites rescue” – Judge Cardozo (American judge): when you have any kind of danger then people will naturally try to enact a rescue and the law needs to protect them – Wagner v International Railway Co.

   • Hayes v Harwood and Cutler v United Dairies: cases about bolting horses: volenti won’t work if there was a ‘legal, social or moral duty’ to rescue

   • Baker v T.E Hopkins & Sons Ltd: Courts want to encourage rescuers – made it clear that they would never say that a rescuer consents unless they do something ‘wantonly foolhardy’

3. Suicide (Mental Capacity)

• Kirkham v Chief Constable of Greater Manchester: The claimant must have the mental capacity to consent

• Reeves v Metropolitan Police Commissioner: he wasn’t of unsound mind but still not volenti – police should have done more – contributory negligence

Sports/Games/Horseplay: Rules of the Game – works for participants and spectators

• Hall v Brooklands Auto Racing Club:

  • Spectator had consented to risk of being hit when he stood at the side of the racing track – inherent dangers in the sport

• Simms v Leigh RFC: Volenti applied where a rugby player ran into a wall as the stadium complied with specification requirements

• Condon v Basi: footballer HAD NOT consented to dangerous play (outside the rules of the game)

• Smoldon v Whitworth: referee can be sued for failure to uphold rules of the game

• Bkake v Galloway: horseplay: ‘tacit’/latent rules to which the C had consented – but if a person goes beyond the tacit rules then this can be a breach as no volenti

Limitations

1. By Statute e.g. 149 RTA 1988 – volenti banned for traffic accidents -can’t consent to someone’s bad driving

2. By S.2 Unfair Contract Terms Act 1977: S2: cannot exclude liability for death or personal injury and exclusion of other damage only in so far as it is reasonable: applies to all those acting in the course of business (S1(3))

   • Johnstone v Bloomsbury AHA – contract which excluded damage caused to doctor from long working hours was subject to UCTA

Contributory Negligence

• Partial defence governed by S 1(1) Law Reform (Contributory Negligence) Act 1945

• S 4 defines “Fault” and “Damage”

1. Was the claimant acting negligently?: Basic rules for negligence: objective test of whether C acted reasonably

• Jones v Livox Quarries : C was riding on the tow bar of a vehicle - ought reasonably to have foreseen the risk he might hurt himself

• Griffin v Mersey Regional Ambulance Services: hit by ambulance but should have reacted to sirens

• Froom v Butcher: didn’t wear a seatbelt – partly to blame for the injuries

• Sayers v Harlow UDC: woman tried to escape from toilet after door jammed ‘acrobatic feat’

• Brannon v Airtours plc: put head into a ceiling fan

• Badger v Ministry of Defence: partly to blame if you’re a smoker and you get a lung disease: known risk

• Jones v Boyce: No contributory negligence where C jumped from cart – acted reasonably (emergency)

• Children

  • Age of the claimant: Gough v Thorne: 13 year old girl trying to cross the road – lorry driver told her to cross – hit by another car –no contributory negligence

  • Yachuk v Oliver Blais Co Ltd – 9 year old C purchased petrol from the D’s garage claiming it was for his mother – no contributory negligence as child couldn’t have been aware of the danger

• Rescuers

  • Harrison v BRB: no protection for rescuers if they negligently helped to create situation in the first place

2. Did the claimant’s actions contribute to the damage suffered?: question of causation

   • Stapley v Gypsum Mines Ltd – C ignored instructions not to work in part of the mine

   • Froom v Butcher – not wearing seatbelt

   • O’Connell v Jackson – not wearing crash helmet

   • Capps v Miller: not wearing crash helmet properly

   • Injury must be within the risk run by the claimant

     • Jones v Livox Quarries – C would not have been negligent if he had been struck by a rock whilst on the tow bar, since that was not the risk that he was running

3. How do they reduce the damages and to what extent?

• Court will take into account degree and fault and will reduce by what is ‘just and equitable’ - S1(1) Law Reform (Contributory Negligence) Act 1945

• Apportionment

  • Generally discussed in percentage terms - % of C’s culpability deducted from D’s reward

  • e.g. Froom – Lord Denning – refusal to wear a seatbelt:

    • if wearing seatbelt would have removed risk of injury completely - 25% reduction

    • If injuries would still have occurred but would have been less severe – 15%

  • Revill: damages reduced by 60% as he was a trespasser

  • Capps v Miller: reduction by 10% when moped driver had failed to fasten crash helmet

  • Jebson v Ministry of Defence: Mr J’s damages reduced by 75% when he drunkenly fell off vehicle

• Contributory negligence and other defences

  • Where courts are unwilling to apply defence of volenti for policy reasons – they will apply con neg

  • Reeves v Commisioner of Police of the Metropolis: deceased’s deliberate act of suicide amounted to contributory negligence under the Act and damages reduced (50%) accordingly

Illegality – “Ex turpi causa non onitur actio”: you CANNOT sue if injured while committing a crime

• Ashton v Turner: Robber tried to sue getaway driver

• Pitts v Hunt: C and D on a motorbike (driver was 16) and both drunk – joint illegality so claim failed

  • Not all crimes will amount to defence of illegality: here suggested ‘a crime against the public conscience’ – serious crimes

• Gray v Thames Train : discusses the nexus between the tortfeasor’s negligent act and the criminal offence they are undertaken in relation to the damage being claimed for

• Vellino v Chief Constable of Greater Manchester

  • C jumped from window when arrested by police, by breaking away from custody, the claimant was committing a crime

• In Kirkham – defence has been criticised as too blunt: complete defence so extinguishes liability

• Trespass – much more lenient: not debarred from making a clam for personal injury: Revill v Newbery: shooting indiscriminately at (assumed) burglars in an attempt to ward them off was ‘out of all proportion to the threat involved) (Neill LJ) – Although C was contributorily negligent so damages reduced to two thirds

Other Defences

Self-Defence (Private Defence)

• Defendant is justified in using reasonable force...