#15668 - Defences - Tort Law

5. DEFENCES

VOLENTI NON FIT INJURIA

The voluntary assumption of risk is a complete defence to the tort of negligence. It applies where C knew of the risk and freely accepted it; although the courts tend to prefer the flexibility of CN.

Basic requirements:

1. C knew of the risk: this must be actual knowledge, imposing a subjective test on C

• Dann v Hamilton [1939]: C chose to travel in D’s car, knowing D was drunk. D crashed, injuring C. Volenti requires “complete knowledge of the danger” and proof of consent to it. Although knowledge of the danger can be evidence of consent to it. D must have been ‘obviously and extremely drunk’ for volenti to apply. (Although note, now, the RTA 1988).

• Morris v Murray [1991]: C and D were drinking together then went in a flight in a small aeroplane, flown by D. D crashed and injured C. Fox LJ: D could rely on volenti. Knowledge can be inferred from the facts. Danger here was so great, C must have known D was incapable of discharging his duty of care, so in embarking on the flight, C “implicitly waived his rights in the event of injury.” For voleniti “the wild irresponsibility of the venture is such that the law should not intervene to award damages and should leave the loss to lie where it falls.”

2. C voluntarily agreed to incur the risk:

• Narrow approach in: Nettleship v Weston [1971]: C supervised D in learning to drive. D crashed and C was injured. D could not rely on volenti. Lord Denning: “Knowledge of the risk of injury 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.”

• Broader approach in subsequent case law: defence is not confined to an agreement to waive a future claim —e.g. Dann v Hamilton and Morris v Murry.

• ICI v Shatwell [1965]: C and X were employed in D’s quarry. They made an agreement to breach one of the safety requirements imposed by D; C was injured by X’s negligence. C sued D based on vicarious liability. HL: D could rely on volenti. Although volenti rarely succeeds in employment cases (because employee’s consent is normally based on social/economic pressure), here the parties made “a genuine, full agreement, free from any kind of pressure, to assume the risk of loss”, even if they thought that risk to be very remote.

Volenti will not apply:

1. Road traffic: Road Traffic Act 1988 s.149(3) a driver cannot argue his passenger willingly accepts the risk of his negligent driving to escape liability. No volenti defence for drivers in claims by passengers.

2. Employers: will not apply where the employer breaches his statutory duty of care

3. Rescuers: the defence does not usually apply against rescuers: Baker v TE Hopkins [1959]: C went down a well to rescue a colleague who had become trapped. C was injured and sued his employer in negligence. D claimed C had assented to the risk when he attempted to rescue X. Morris LJ: D was liable. However, “If a rescuer acts with a wanton disregard of his own safety… it might be held that any injury to him was not the result of the negligence that caused the situation of danger.”

4. Self-harm: no defence where C does the exact thing D had a duty of care to prevent him from doing: Reeves [2000]: The police could not rely on the volenti defence in respect of C’s suicide because they were under a specific duty to protect him from suicide (he was on watch). Allowing volenti would effectively negative the effect of the police’s duty of care. Volenti would have applied if the police’s duty was narrower in scope (i.e. C wasn’t on watch).

EXCLUSION OF LIABILITY

It is possible to expressly exclude liability by contract between the parties.

The Unfair Contract Terms Act 1977:

• The general rule allowing exclusion is subject to significant exceptions from the Act, mainly s.2.

  • It is of vital importance that this only applies to business liability (s.1(3)), which means (i) liability arising from things gone in the course of business, (ii) occupation of a premises used for business purposes.

  • Where done on private premises, must be done so reasonably.

• s.2(1):

  • Cannot contract out of death or personal injury resulting from negligence.

• s.2(2):

  • For other loss or damage, the contract term/notice must satisfy the s.11 requirement of reasonableness.

  • Contract terms – s.11(1):

    • ‘The term shall have been a fair and reasonable one to be included having regard to the circumstances which were, or ought reasonably have been, known to or in the contemplation of the parties when the contract was made.’

  • Notices – s.11(3):

    • ‘[The notice] should be fair and reasonable to allow reliance on it, having regard to all the circumstances obtaining when the liability arose or (but for the notice) would have arisen.’

• s.2(3):

  • Agreement to/awareness of a contract term or notice does not itself indicate voluntary assumption of risk.

In Smith v Bush, the express exclusion by the surveyors was held unreasonable. Lord Griffiths suggested four factors by which to gauge unreasonableness

1. Unequal bargaining power;

2. Whether practicable to expect C to obtain independent advice;

3. Complexity of the task;

4. Practical consequences of striking down the disclaimer.

CONTRIBUTORY NEGLIGENCE

Contributory negligence is a partial defence and is a failure by C to take reasonable care for his own safety, which contributes to the damage complained of.

• It results in the apportionment of C’s damages, reduced to such an extent as the court thinks is ‘just’ and ‘equitable’, having regard to the parties’ respective share of responsibility for loss suffered.

  • Any fault must be causally related to the damage which C eventually suffers —i.e. a defence available when the injury sustained was within the scope of the risk created by the CN.

Law Reform (Contributory Negligence) Act 1945 introduced a system of apportionment of damages and abolished the rule that any CN voided the claim all together.

• s.1 “damages recoverable in respect thereof shall be reduced to such extent as the court thinks just and equitable having regard to [C’s] share in the responsibility for the damage”

• s.4 CN by C does not have to satisfy the requirements of negligence.

1. Causation C’s fault in taking care of his own safety must be an operative cause of his harm

• Jones v Livox Quarries [1952]: C worked at a quarry owned by D. C rode on the back of a vehicle, despite being told not to. C was injured. Denning LJ: C’s negligence must be “so mixed up with his injury that it cannot be dismissed as mere history” for contributory negligence to be established, causation test. Apportionment under CN is based on causation— “what faults were there which caused the damage? Was [C’s] fault one of them?”

• Stapley v Gypsum Mines [1953]: C died when a roof at a mine collapsed. He had been instructed not to work under the structure until it was removed. Lord Reid: reduced his claim against D (employer) by 50%. C’s act must be “so much mixed up in the state of things” that it must have contributed to the injury. “It is enough… if there is a sufficiently high degree of probabilities that the accident would have been prevented” if C had not acted as he did. In applying this test, the court should have regard to the “blame-worthiness” and the “causal potency” of C’s act.

• Froom v Butcher [1976]: D crashed into C’s car; C wasn’t wearing a seatbelt. Lord Denning: C’s negligence must be a part of cause of C’s damage not the accident which led to the damage. C’s damages were reduced by 20%.

• St George v Home Office [2008]: C was in prison; informed prison staff he suffered from withdrawal seizures; prison was negligent in managing C’s conidition and C suffered injury as a result. Dyson LJ: no reduction for CN: although C’s fault in becoming addicted were a ‘but for’ cause of his injuries, his addiction was “too remote in time, place and circumstance and was not sufficiently connected with the negligence of the prison staff… to be properly regarded as a cause of the injury”. C’s fault was “no more than part of the history”.

2. Fault s.4 fault: “negligence, breach of statutory duty or other act or omission which gives rise to liability in tort or would, apart from this Act [i.e. under the old law pre-1945], give rise to the defence of contributory negligence.”

• Lord Denning in Jones v Livox and Froom v Butcher: emphasised there is no need for a breach of duty —rather need to ask whether C acted as a reasonable person in looking after his own safety.

• Reeves [2000]: although the police were liable for C’s suicide in their care, his claim was reduced by 50% for CN. Lord Hoffmann: suicide could come within the definition of ‘fault’ —the statutory definition can encompass non-negligent acts of C.

3. Apportionment

• Jones v Livox: apportionment is based on causation: the degree to which C’s fault contributed to his damage.

• Froom v Butcher the court must have regard to both the “causal potency” and the “blameworthiness” of C’s act, at least in some cases. Although, Lord Denning noted that blameworthiness will be “hotly disputed”, so in straightforward cases a detailed, expensive inquiry into blameworthiness should not take place. It will “suffice to assess a share of responsibility which will be just and equitable in the great majority of cases”.

• Reeves, Lord Hoffmann: apportionment should be based on the “responsibility” of each party for C’s harm, and so the court should take account of the “policy of the rule… by which [D’s] liability is imposed”, i.e. the purpose and content of D’s duty of care to C.

• St George v Home Office – Even if C’s fault was...