Defences

What do defences in negligence generally concern?

Defences in negligence concern the claimant’s contribution to their own loss rather than whether the defendant breached a duty.

When are negligence defences considered in the sequence of a claim?

Defences are considered after the claimant has established the defendant’s liability.

Who bears the burden of proving a defence in negligence?

The defendant bears the burden of proving the defence.

What are the three principal negligence defences in these notes?

Consent, contributory negligence and illegality.

Which negligence defences are complete defences?

Consent and illegality are complete defences, meaning the claimant receives no damages if the defence succeeds.

Which negligence defence is a partial defence?

Contributory negligence is a partial defence, meaning the claimant’s damages are reduced rather than eliminated.

What is the Latin name for the defence of consent in negligence?

The defence of consent is known as volenti non fit injuria.

What is the effect of a successful consent defence in negligence?

Consent is a complete defence, so the claimant receives no damages if it succeeds.

What must a defendant prove to establish the defence of consent in negligence?

The defendant must prove that the claimant had capacity, fully understood the risk, agreed to the risk of injury, and consented voluntarily.

What four requirements must be satisfied for valid consent to a negligence risk?

The claimant must have capacity, full knowledge of the nature and extent of the risk, agreement to accept that risk, and freedom from constraint.

What capacity requirement applies to the defence of consent in negligence?

The claimant must have had the capacity to give valid consent to the relevant risk.

What did Reeves v Commissioner of Police for the Metropolis establish about capacity and consent?

Reeves v Commissioner of Police for the Metropolis held that a prisoner at known risk of suicide lacked capacity to consent to the risk associated with suicide.

Why did consent fail in Reeves v Commissioner of Police for the Metropolis?

The prisoner did not have the capacity required to consent validly to the risk of suicide.

What knowledge must a claimant possess for the defence of consent in negligence?

The claimant must have full knowledge of the nature and extent of the relevant risk.

Is merely knowing that an activity is generally risky sufficient for consent in negligence?

No. The claimant must understand the nature and extent of the particular risk they are said to have accepted.

What did Morris v Murray establish about intoxication and knowledge of risk?

Morris v Murray held that the claimant was not so intoxicated that he was incapable of understanding the nature and extent of the risk of flying with a drunken pilot.

Does intoxication automatically prevent valid consent to a negligence risk?

No. Intoxication prevents valid consent only if it deprives the claimant of capacity to understand the nature and extent of the risk.

What must a claimant agree to for the defence of consent in negligence to succeed?

The claimant must agree to accept the risk of injury, not merely know that the risk exists.

Can agreement to a negligence risk be express or implied?

Yes. Agreement may be express or implied from participation in an intrinsically and obviously dangerous activity.

When may agreement to a risk be implied in negligence?

Agreement may be implied where the claimant knowingly engages in an activity involving an intrinsic, obvious or glaring danger.

What did Dann v Hamilton establish about accepting a lift from a drunk driver?

Dann v Hamilton held that knowingly accepting a lift from a drunk driver did not automatically amount to consenting to the risk of the driver’s negligent driving.

Why did the consent defence fail in Dann v Hamilton?

Awareness that the driver had been drinking was not equivalent to agreeing to waive liability for negligent driving.

What did Morris v Murray establish about agreeing to an obvious danger?

Morris v Murray held that agreeing to fly with an obviously drunken pilot amounted to accepting a glaring risk of injury.

Why did the consent defence succeed in Morris v Murray?

The claimant had been drinking with the pilot, knew that flights had been suspended that day, and knowingly agreed to embark on an obviously dangerous flight.

What comparison was used in Morris v Murray to describe the claimant’s conduct?

Agreeing to fly with the obviously drunken pilot was compared to meddling with an unexploded bomb.

What risks do sports participants consent to in negligence?

Sports participants consent only to risks inherent in the sport.

Do sports participants consent to serious foul play?

No. Consent to the ordinary risks of sport does not extend to serious foul play outside those inherent risks.

What voluntariness requirement applies to consent in negligence?

The claimant must agree to the risk freely and voluntarily, without constraint.

Why may an employee’s apparent consent to workplace risk not be truly voluntary?

An employee may have little realistic choice but to accept a risk if refusing would threaten their employment.

What did Smith v Charles Baker & Sons establish about employee consent?

Smith v Charles Baker & Sons held that an employee’s continued exposure to a known workplace danger did not necessarily amount to voluntary consent because they might have little real choice.

Does continuing to work despite knowing of a danger automatically establish consent?

No. Knowledge of the danger is not enough where the worker has not freely agreed to accept the legal risk of injury.

Does a rescuer necessarily consent to injury by knowingly entering a dangerous situation?

No. A rescuer’s deliberate entry into danger may be motivated by an impulsive desire to save life rather than free acceptance of the legal risk.

What did Baker v T.E. Hopkins & Son establish about rescuers and consent?

Baker v T.E. Hopkins & Son held that a rescuer who knowingly entered a well containing poisonous fumes was not necessarily consenting to injury because the rescue impulse limited genuine voluntariness.

Why may the defence of consent be difficult to establish against a rescuer?

The law recognises that the urgent and impulsive desire to save life may prevent the rescuer’s decision from amounting to free acceptance of the risk.

Can motorists rely on the defence of consent to avoid liability to passengers?

No. Section 149 of the Road Traffic Act 1988 prevents motorists from relying on consent.

What does section 149 of the Road Traffic Act 1988 do to the consent defence?

It prevents a motorist from relying on a passenger’s consent to exclude liability for negligent driving.

Can a person exclude liability for death or personal injury caused by negligence under UCTA 1977?

No. Section 2 of the Unfair Contract Terms Act 1977 prevents liability for death or personal injury caused by negligence from being excluded.

How does UCTA 1977 regulate exclusions for negligence losses other than death or personal injury?

Exclusions or restrictions concerning other negligence losses must satisfy the statutory reasonableness requirement.

Can a trader exclude liability to a consumer for death or personal injury caused by negligence under the CRA 2015?

No. Section 65 of the Consumer Rights Act 2015 prevents a trader from excluding liability for death or personal injury caused by negligence.

How does the CRA 2015 regulate exclusions for other negligence losses involving consumers?

Exclusions or restrictions concerning other losses must satisfy the statutory fairness requirement.

Which statute governs contributory negligence?

Contributory negligence is governed by section 1(1) of the Law Reform (Contributory Negligence) Act 1945.

What is contributory negligence?

Contributory negligence arises where the claimant failed to take reasonable care for their own safety and that failure contributed to their damage.

What is the effect of a successful contributory-negligence defence?

The claimant’s damages are reduced to reflect their share of responsibility.

Is contributory negligence a complete or partial defence?

Contributory negligence is a partial defence.

How is a claimant’s responsibility expressed in contributory-negligence cases?

The claimant’s degree of responsibility is generally expressed as a percentage reduction in damages.

What approach does the court use when reducing damages for contributory negligence?

The court uses an equitable approach based on the claimant’s degree of culpability and contribution to the damage.

Who bears the burden of proving contributory negligence?

The defendant bears the burden of proving that the claimant failed to take reasonable care and thereby contributed to the damage.

What two matters must a defendant establish under Jones v Livox to prove contributory negligence?

The defendant must show that the claimant failed to take reasonable care for their own safety and that this failure contributed to the claimant’s damage.

What is the first limb of the Jones v Livox contributory-negligence test?

The claimant must have failed to take reasonable steps for their own safety.

What is the second limb of the Jones v Livox contributory-negligence test?

The claimant’s failure to take reasonable care must have contributed to the damage suffered.

Is the standard applied to a claimant’s conduct in contributory negligence objective or subjective?

It is generally objective: the claimant is compared with a reasonable person taking care for their own safety.

What did Owens v Brimmell establish about passengers travelling with drunk drivers?

Owens v Brimmell held that a passenger may be contributorily negligent where they know the driver has drunk excessively or participated in the drinking with them.

Can a claimant rely on their own drunkenness as an excuse for failing to recognise a danger?

No. A claimant’s intoxication does not excuse their failure to take reasonable care for their own safety.

Why may a passenger be contributorily negligent under Owens v Brimmell?

The passenger may have knowingly exposed themselves to the foreseeable danger posed by an excessively intoxicated driver.

What did Sayers v Harlow Urban District Council establish about contributory negligence during an escape?

Sayers v Harlow Urban District Council reduced damages by 25% because the claimant failed to take reasonable care by relying on an unstable toilet-roll holder while attempting to escape.

Why were the claimant’s damages reduced in Sayers v Harlow Urban District Council?

Although the defendant created the predicament, the claimant acted carelessly in the method chosen to escape.

What did Jones v Boyce establish about claimants facing an emergency dilemma?

Jones v Boyce established that allowance is made where the defendant’s conduct places the claimant in a difficult dilemma requiring an immediate decision.

Why was the claimant not negligent in Jones v Boyce?

The claimant reasonably jumped from a coach to avoid an apparent danger created by the defendant, even though the jump caused a broken leg.

How does an emergency affect the standard applied to a claimant for contributory negligence?

The claimant’s conduct is judged in light of the urgent dilemma, and the court allows for reasonable decisions made under pressure.

What standard applies to a child claimant in contributory negligence?

A child claimant is judged against the standard of a reasonable child of the same age.

What did Gough v Thorne establish about child claimants and contributory negligence?

Gough v Thorne established that the claimant’s age must be considered and that children are judged by the standard expected of children of the same age.

How are rescuers generally treated in contributory-negligence claims?

Rescuers are generally protected because the law makes allowances for reasonable risks taken in responding to emergencies.

Which case confirms that rescuers are generally protected from contributory-negligence findings?

Baker v T.E. Hopkins & Son confirms that reasonable rescue conduct is generally protected.

When may a rescuer nevertheless be found contributorily negligent?

A rescuer may be contributorily negligent where they acted unreasonably or helped create the emergency through their own negligence.

What did Harrison v British Railways Board establish about rescuers and contributory negligence?

Harrison v British Railways Board held that a rescuer may lose special protection where they negligently helped create the emergency.

Why is the nature of the defendant’s duty relevant to contributory negligence?

A claimant may not be blamed for conduct that the defendant’s duty specifically required them to guard against.

What did St George v Home Office establish about contributory negligence and the nature of the duty?

St George v Home Office held that prison officers who knew of the claimant’s risk of withdrawal seizures could not rely on his role in creating his addiction to reduce liability.

Why was the claimant not held contributorily negligent in St George v Home Office?

The prison officers’ duty existed specifically because they knew of and were required to manage the risk created by the claimant’s withdrawal condition.

Must the claimant’s negligence contribute to the original accident for contributory negligence to apply?

No. It is sufficient that the claimant’s negligence contributed to the extent of the resulting injury.

What did Froom v Butcher establish about seatbelts and contributory negligence?

Froom v Butcher held that failing to wear a seatbelt may reduce damages where wearing one would have prevented or reduced the claimant’s injury.

Does failing to wear a seatbelt cause the road accident for contributory-negligence purposes?

No. The failure does not cause the collision but may contribute to the severity of the resulting injuries.

What reductions were suggested in Froom v Butcher for failing to wear a seatbelt?

The notes indicate a 25% reduction where a seatbelt would have prevented injury, 15% where it would have reduced injury, and no reduction where it would have made no difference.

Are the percentage reductions identified in Froom v Butcher fixed rules?

No. The percentages are guides rather than inflexible figures.

How may failure to wear a safety helmet affect contributory negligence?

Like failure to wear a seatbelt, it may reduce damages where the helmet would have prevented or reduced the injury.

How is contributory negligence calculated where there are multiple defendants?

The court first reduces the claimant’s total claim to reflect their contributory negligence and then apportions the remaining liability between the defendants.

What did Fitzgerald v Lane establish about contributory negligence and multiple defendants?

Fitzgerald v Lane established that the claimant’s overall damages are reduced first, before the remaining liability is divided between the defendants.

What is the Latin name for the illegality defence in tort?

The illegality defence is expressed by the maxim ex turpi causa non oritur actio.

What does ex turpi causa non oritur actio mean in negligence?

It means that a claimant may be prevented from recovering losses arising from their own illegal or grossly immoral conduct.

What is the effect of a successful illegality defence?

Illegality is a complete defence, so the claimant receives no damages for the barred loss.

What is the basic rationale for the illegality defence?

The law should not permit a claimant to recover damages for losses arising from their participation in criminal or grossly immoral conduct.

What did Gray v Thames Trains establish about the illegality defence?

Gray v Thames Trains held that a claimant could not recover losses resulting from the consequences of a serious crime committed after developing PTSD caused by the defendant.

What happened in Gray v Thames Trains?

The claimant developed PTSD, later stabbed and killed someone, and then claimed loss of earnings during detention and damages connected with guilt and conviction.

Which losses were barred by illegality in Gray v Thames Trains?

Loss of earnings following detention and general damages arising from the criminal conviction were barred.

Why were the claims barred in Gray v Thames Trains?

Awarding damages would have been inconsistent with the criminal court’s sentence and the legal consequences of the claimant’s own offence.

Must the claimant’s criminal activity be causally connected to the accident for illegality to bar a negligence claim?

Yes. Incidental criminal conduct that did not cause the accident may be insufficient to establish the defence.

What did Delaney v Pickett establish about incidental criminal activity?

Delaney v Pickett held that transporting cannabis did not bar the claim because the criminal activity was incidental to the negligent driving that caused the accident.

Why did illegality fail in Delaney v Pickett?

The transportation of cannabis did not cause or materially contribute to the road accident.

What did Pitts v Hunt establish about joint criminal activity?

Pitts v Hunt held that illegality barred recovery where the claimant participated in a joint drinking spree and knowingly rode with an unlicensed motorcyclist.

Why did the illegality defence succeed in Pitts v Hunt?

The claimant was directly involved in the joint unlawful activity closely connected to the accident.

Which case provides the modern policy-based test for illegality?

Patel v Mirza provides the modern framework for determining whether illegality should bar a claim.

What initial question is asked under Patel v Mirza?

The court asks whether the claimant committed an illegal or grossly immoral act at the time the loss was suffered.

What example illustrates an illegal act closely connected to the claimant’s injury?

Ashton v Turner, where the parties were escaping from a burglary when the claimant was injured by the defendant’s negligent driving.

What broad issue does the Patel v Mirza test seek to avoid?

The test seeks to avoid disharmony or inconsistency within the law by balancing the policies supporting and opposing denial of the claim.

What is the first policy consideration under Patel v Mirza?

The court considers the underlying purpose of the legal prohibition breached and whether denying the claim would enhance that purpose.

What is the second policy consideration under Patel v Mirza?

The court considers any other relevant public policy that might be undermined by denying the claim.

What is the third consideration under Patel v Mirza?

The court considers whether denying the claim would be a proportionate response to the claimant’s illegality.

What factors are relevant to proportionality under Patel v Mirza?

Relevant factors include the seriousness of the conduct, its centrality and causal connection to the tort, whether it was intentional, and the disparity between the parties’ culpability.

Why is the seriousness of the claimant’s offence relevant to illegality?

The more serious the unlawful conduct, the stronger the argument that permitting recovery would undermine the law.

Why is the centrality of the illegality to the tort relevant?

Illegality is more likely to bar the claim where the unlawful conduct is closely and causally connected to the loss.

Why is the claimant’s intention relevant to the proportionality assessment in illegality?

Deliberate unlawful conduct is more likely to justify denying recovery than accidental or peripheral illegality.