Defences to Negligence - Tort Law - Lecture 11

Cayzer, Irvine & Co v Carron Ltd on Contributory Negligence, what is the context, outcome and importance?

Context → This case consisted of two ships which collided one afternoon, they were both found to be at fault.

Outcome → HOL created a principle that at morality law, you can adjust the proportion of damages based on the degree of fault of the parties, however in negligence, no matter how small or big the fault was, the claim would be denied entirely.

Importance → Here contributory negligence was formed, a claim in negligence is not barred completely but instead judges will evaluate the degree to which it would be 'just and equitable' to reduce the amount of damages owed to the claimant. The courts have wide discretion as to what the damages may be.

There needs to be an element of fault and contribution to the damage to establish contributory negligence -as per the Section 1(1) of the Law Reform (contributory negligence) Act 1945 and Cayzer case.

What does Section 1(1) of the Law Reform (Contributory Negligence) Act 1945 outline? And the controversies relating to Section 1(1)

“Where any person suffers damage as the result partly of his own fault and partly of the fault of any other person or persons, a claim in respect of that damage shall not be defeated by reason of the fault of the person suffering the damage, but 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.”

There needs to be an element of fault and contribution to the damage to establish contributory negligence -as per the Section 1(1) and Cayzer case.

Criticism → To note - there is ambuigity as to whether the Section 1(1) applies to different tort as well, or not applying to torts of conversion and deceit, or other case law that the section applies to breaking of statutory law - but we will mainly focus on negligence.

An example of contributory negligence in action - A person driving a bicycle whilst giving someone a ride, and a car drove into the person consequently - would the cyclist be negligent for the injuries as per contributory negligence?

Yes, they would be liable

Jones v Livox Quarries Ltd on Contributory Negligence, what is the context, outcome and importance?

Context → A person took a ride on the back of the truck, another vehicle rammed into the truck negligently and caused injury to that specific employee who took the ride. Initially, the employee was found contributory negligent and was at fault as per 25%, he attempted to appeal to the Court of Appeal.

Outcome → The court held the employee was negligent as it was careless and dangerous on a towbar of the truck, and 2nd the damage was partially due to his own fault, providing an example of the employee being shot whilst being on the truck but other than being shot would not implicate them, but riding a towbar and then being crashed into by another truck does bring damage, there is a distinction.

Importance → contributory negligence will only apply when the claimant could AND should foresee that their negligence can contribute to the damage/or there would be a degree of fault in their actions. 

Gough v Thorne on Contributory Negligence (Cases which expand on the degree of fault of the claimant - extension for Jones v Linox Quarries Ltd), what is the context and outcome?

Context → There were 3 children (13, 17 and 13 1/2) crossing the road, one truck had indicated letting them past, but another car sped past, refusing to stop or slow down and hit the 13 1/2 girl, the court found that the driver was negligent, failing to signal and that the girl was contributory negligent, reducing the fault, as she didnt stop to looking at ongoing traffic (such as stopping, looking both ways).

Outcome → But the Court of Appeal reversed this decision that she wasn’t contributory negligent. There was an emphasis that it should be based on the foreseeability of fault to contributory negligence and this is subjective, and in relation to specific circumstances, such as 'whether any ordinary child of 13 1/2 would foresee the risk of this or this particular type of danger.'

Jackson v Murray on Contributory Negligence (Cases which expand on the degree of fault of the claimant - extension for Jones v Linox Quarries Ltd), what is the context and outcome? Comparisons to Gough v Thorne - how are they different?

Context → A 13 year old leaving the bus and running across the road, not looking both ways and the driver didn't stop, he was speeding and subsequently hit the girl.

Outcome → The Supreme Court held that this child was contributory negligent, reducing the damages of the driver by 15%. This case doesnt mention Gough v Murray, it hasn't overruled it or not, so it remains uncertain as to which one applies (WHILST this could be a distinction as Gough case is a driver allowing the young girl through, whilst in Jackson, the girl ran across the road without looking - we should follow and distinguish it this way.)

Corr v IBC Vehicles Ltd on Contributory Negligence (Cases which expand on the degree of fault of the claimant - extension for Jones v Linox Quarries Ltd),

• What is the context, issue and outcome?

• What is the importance? What if the suicide hurts someone or their property, is that individual liable for damage under contributory negligence or not?

Context → Corr suffered severe head injuries from machinery due to employer (D)’s negligence. Corr suffered PTSD and depression due the injuries, eventually committing suicide. Corr’s wife sued the defendant for causing her husband’s death.

Issue → The issue was whether a defence of contributory negligence can be established against the employer (to reduce his liability) in this case?

Outcome → HOL ruled that an employer whose negligence caused an employee's severe depression could be held liable for their subsequent suicide. The court rejected the defence of contributory negligence, as the employee's mental capacity was impaired by the illness. The court held that a reduction in damages for contributory negligence is inappropriate if the claimant’s ability to make reasoned, rational judgments has been overborne by the psychiatric illness caused by the defendant. Because the suicide was a direct symptom and consequence of the depressive illness, it was not deemed a voluntary, independent act that broke the chain of causation. Because the deceased's mental state meant he could not be held legally blameworthy for taking his own life, no deduction was made from the damages awarded to his widow.

Importance → Lord Scott argued that C wasnt automaton, his actions weren't one he was in control over, and policy reasons of the suicide hurts someone or their property, they would be liable for damage. If it is available to NOT rule out third party when it comes to C damaging the property or another person in the process of suicide, we shouldn’t rule out the availability of contributory negligence, and damages should be reduced by 20% and contributory negligence exists.

Froom v Butcher on Contributory Negligence (Cases which expand on the degree of fault of the claimant - extension for Jones v Linox Quarries Ltd), what is the context, outcome and importance?

(This led to the introduction of a streamlined test - This was where a car accident occurred and the claimant didn't wear a seatbeat and this case later extended to motorcyclists who didn't wear helmets. Even after seatbelts were installed, they weren't required to be fassened.)

Context → The driver was hit negligently by another driver, but didnt fassen your seatbelt but it was recommended by the road book manual.

Outcome → The court outlined a streamlined test to addressed vehicle related accidents + claimant was contributory negligent, but it is NOT about WHAT caused the accident, but what caused the DAMAGE (such as the damage was created in part by bad driving by the reckless driver and not wearing a seatbelt by the claimant.)

Importance → Froom v Butcher outlined that where the seatbelt would have avoided damage completely, it would be reduced to 25% of damages, but if seatbelt would have reduced a significant, life-altering injury, then it would be reduced to 50% of damage, but if the seatbelt wearing would not have reduced anything whatsoever and wouldn't have changed anything whatsoever, there is no % of damages.

Capps v Miller on Contributory Negligence (Cases which expand on the degree of fault of the claimant - extension for Jones v Linox Quarries Ltd), what is the context, outcome and importance? (An extension from Froom v Butcher)

Context → C was wearing a pressure helmet but didn't fassen it, whilst driving a motorcycle. M negligently hit C, then the strength of the collision caused by helmet to fall off and C developed brain damage.

Outcome → Everyone agreed there was an element of contributory negligence since C didn't fassen his helmet and if he did, then C would have avoided some damage, but the disagreement was regarding this particular helmet where it can stay on in different circumstances even if it is not fassened and this case was in-between category (such as not wearing and wearing a seatbelt), we must apply 15% damage.

Importance → What we can understand from this is that apportioning damages such as damage that is not caused by fassening/not fassening a seatbelt or helmet, there is some case law guidance.

Smith v Finch on Contributory Negligence (Cases which expand on the degree of fault of the claimant - extension for Jones v Linox Quarries Ltd), what is the context, outcome and importance?

Context → The claimant (Robert Smith) was cycling when he was struck from behind by a motorcycle driven by the defendant (Michael Finch), who was traveling at excessive speed in Brightlingsea, Essex. Smith sustained severe traumatic brain injuries and had no memory of the crash. He was not wearing a bicycle helmet at the time. The defendant argued that the cyclist was partially to blame (contributorily negligent) for his severe head injuries because he chose not to wear a helmet.

Outcome → The High Court found the motorcyclist entirely liable for the collision due to speeding and driving too close. The judge drew an analogy to the landmark seatbelt case Froom v Butcher. The court held that a cyclist of ordinary prudence should wear a helmet, and failing to do so can expose them to greater risk. Despite the principle, the judge did not reduce the cyclist's compensation. The burden is on the defense to provide medical evidence that wearing an approved helmet would have prevented or reduced the specific injuries sustained. In this case, the impact velocity was too high for a standard bicycle helmet to have been effective, so no contributory negligence was applied

Importance → If you fail to establish fault on the claimant and defendant, and if facts are not provided, then you fail to obtain the defence to negligence/contributory negligence.

What is Voluntary Assumption of Risk, and what are the 3 requirements needed to fulfil it?

This bars the claimant from claiming any damages whatsoever. Examples of these would usually be engaging in extreme sports, though different for varied sports.

There are 3 requirements in order to fulfill 'voluntary assumption of risk' -

1. Claimant have knowledge of risks involved in the activity

2. Willingness to accept those risks 

3. Express or implied agreement between the parties that if those risks materalise, there will be a waiver for claim of compensation

Woolridge v Summer on Voluntary Assumption of Risk, what is the context, outcome and importance?

Context → This is a case regarding horse racing (though car racing and other types of sports can be considered), took a corner too quickly at a sharp angle and lost control, the photographer was horrified by the sight, trying to flee and the horse ended up being injured too.

Outcome → The court concluded that you cannot expect the player to breach a duty of care as if they are expected to move fast and dangerously, and the consent that is relevant for voluntary assumption of risk, is the CONSENT of lack of reasonable care that would arise with the injury, C must be aware of BOTH and give consent to BOTH, not just risk - C gave his consent in full knowledge of the full nature of risk by being there and taking pictures.

Nettleship v Weston on Voluntary Assumption of Risk, what is the context and outcome?

Context → Friend agreed to give driving lessons to his friend's wife and he did so in the husband's car. The friend/C insisted on the existence of insurance against any risk to passengers, only when satisifed, he was willing to give driving lessons to the wife, and the wife was negligently, colliding into a pole and hurt C's knee.

Outcome → And the court concluded that by checking the car insurance before lessons means he didnt give EXPLICIT consent to any injuries that might happen, there is knowledge of factual and legal risks, and accept it, but NOT to waive claims, so the defence failed.

How does the Section 149 of Road Traffic Act 1998 relate to Voluntary Assumption of Risk?

This act invalidates any agreement to restrict or limit liability to any driver to another person, they are instead covered by insurance. The act quashes agreements that happen similar to Nettleship v Weston.

Morris v Murray on Voluntary Assumption of Risk, what is the context and outcome?

Context → Similar situations of Dann v Hamiliton, but instead in a light-aircaft. The Road Traffic Act didnt apply to aircrafts, hence there was questions whether Dann v Hamilton applies or not, and C and D drank heavily before going to an aircraft which Murray piloted, Morris helped by driving the car there and starting the aircraft, Murray died and Morris was seriously injured.

Outcome → Plus flying is extremely dangerous especially when drinking and C wasn't too intoxicated that he had no ability to not know what he was doing, so the act applied and voluntarily chose to take flight and there is an IMPLICIT WAIVER OF LIABILITY. Foreseeability is a factor that would trigger a voluntarily assumption of risk and this defence would not apply if the risk/danger wasn't 'reasonably foreseeable'.

How to decide when Road Traffic Act 1988 applies as per Morris v Murray - there are 3 following factors which must be considered?

• degree of danger

• whether claimant knew about the dangers

• and other factors (not a closed list) of court discretion

ICI Ltd v Shatwell on Voluntary Assumption of Risk, what is the context and outcome?

Context → Two brothers employed by the same company, they chose together to test detonators in a dangerous manner without shelter, despite the employer prohibiting it and legal statutes. Both brothers were injured, one brother brought a claim against the company for being vicariously liable for injury and partially caused by his brother.

Outcome → The HOL held that when the defence is available to the claimant, it is available to the employer who might be vicariously liable. To succeed against ICI, C had to be successful in his claim against his brother, the court said there was a IMPLICIT waiver of liability amongst the brothers, and it is unsuccessful, then because it is not liable, vicariously liability against the employer also fails.

What is required for vicarious liability to arise - two components?

• someone has to commit the tort

• that somebody has to be in employment to the person who is vicariously liable (relationship of employment)

ICI Ltd v Shatwell discussed different circumstances and how the application of the rule (voluntary assumption of risk) varies over time depending on the context -

(1) what if the brothers worked negligently such as dropping the explosives on the floor due to an uneven floor and they were both injured, but they didn't disobey their employer nor statutory regulations, would they be vicariously liable?

(2) what if the workers were being paid more due to the task being more dangerous, shouldn't there be an implicit waiver of liability?

(3) what if peer pressure exists, would the defence be available at this time?

1. Under different circumstances ... what if the brothers worked negligently such as dropping the explosives on the floor due to an uneven floor and they were both injured, but they didn't disobey their employer nor statutory regulations, would they be vicariously liable? = The fact they're going about their job, carrying dangerous boxes and there is no implied waiver of liability between the parties, hence there can't be a voluntary assumption of risk.

 

2. Under different circumstances ... what if the workers were being paid more due to the task being more dangerous, shouldn't there be an implicit waiver of liability? =  You are aware it is dangerous, therefore you are implicitly agreeing

 

3. Under different circumstances ... 1. = It does not apply, since you are being pressured and are unable to voluntarily choose your actions and behaviour.

What is illegality? And is there a remedy available for this?

If the claimant does something illegal (or immoral in the past) and they are injured negligently in the process of this, the court will deny remedy for this wrongdoing. 

Gray v Thames Trains Ltd on Illegality (as a defence to negligence), what is the context and outcome?

Context → Claimant suffered PTSD due to a train crash triggered by the train company and in the process the man had killed someone due to his PTSD.

Outcome → The court argued that he killed someone and was subsequently convicted, therefore they were barred from claiming ALL damages for policy reasons even earnings lost. There cannot be a mismatch between the civil and criminal system (such as claiming money for lost earnings in tort law, yet murdering someone as per criminal law.)

Vellino v Chief Constable of Greater Manchester Police on Illegality (as a defence to negligence), what is the context and outcome?

Context → Claimant was arrested by the police, Defendant, and injured himself by accident when trying to escape.

Outcome → Court of Appeal argued that the police owed a person no duty to take reasonable care that Plaintiff did not injure himself in a foreseeable escape attempt. Plaintiff had caused himself injury while committing an illegal act. 

“The operation of the principle arises where the claimant's claim is founded upon his own criminal or immoral act.” → A defendant can use this to bar a claim if the claimant must rely on their own wrongdoing to establish the claim.

National Coal Board v England on Illegality (as a defence to negligence), what is the importance?

This case demonstrated how illegality focused on 'own criminal or immoral act', now the law has drifted away to focus on solely criminal actions or quasi-criminal acts, and narrowed the scope of defence in terms of the illegal act and injury that was caused

Les Laboratoires Servier v Apotex Inc on Illegality (as a defence to negligence), what is the context and outcome? (Canadian/common law jurisdiction - a debate on whether the UK should look towards this + not legally binding precedent?)

Context → A case regarding patent infringements, two companies breached the exclusive license and Apotex had breached the patent law in Canada by manufacturing the medication.

Outcome → The court concluded that the relevant illegality that triggered the offence was looking at several factors such as -

• Was it a criminal or quasi-criminal act involving dishonesty or corruption?

• Are the acts contrary to public policy and involve a criminal liability by others (example being prostitution)

• Whether the laws in place were meant to protect public interests and subject to penalisation?

The court concluded that civil wrongs (such as patent law) wont amount to illegality if there is no deceit or corruption.

 

Tinsley v Milligan on Illegality (as a defence to negligence), what is the context and outcome?

Context → This case helped distinguish quasi-criminal and criminal act, regarding a lesbian couple who bought a home together and then committed fraud in order to claim certain benefits

Outcome → Therefore the court concluded that if their actions were not reliant on illegality, the defence will not be available for them.

Importance → Overruled by Patel v Mirza!

Patel v Mirza on Illegality (as a defence to negligence), what is the context and outcome? And the three requirements it outlines for a connection between illegality and loss?

Context → This case overruled Tinsley v Milligan, the person was funded by insider-trading training and refused to pay back the said person. The Court of Appeal concluded that person committed wrong from a legal agreement.

Outcome → Supreme Court stated reliance is not a relevant test for connection between liability and consequences, the relevant connection between illegality and loss requires factoring 3 different factors which are -

1. What is the underlying purpose of prohibition that is being breached? Whether that purpose strengthened by denying the claim?

2. Any relevant public policy that a denial of a claim might have an impact on?

3. Proportionality - whether a denial of claim is proportionate to the response, considering the seriousness of the act, whether it is intentional and whether there is culpability of the parties?

Stoffel & Co v Grondona on Illegality (as a defence to negligence), what is the context and outcome?

Context → This is regarding a mortgage fraud, they used one of their credit scores to purchase the house and solicitors failed to register the morgage, so the payments stopped and made a claim against the solicitors for not completing their job properly.

Outcome → The supreme court dismissed the appeal, and a denial of the claim would be contrary to public policy that solicitors should complete the job properly and taking into the 3 factors - the 3rd factor of proportionality is uncertain.

Henderson v Dorset Healthcare University NHS Foundation Trust on Illegality (as a defence to negligence), what is the context and outcome?

Context → C suffered from schizophrenia led to her killing her mother in a psychotic episode when she was released from the mental hospital (D) and was charged with manslaughter with diminished responsibility. An independent investigation found failings by the NHS (D) in treating C’s mental illness C sought to recover for loss of liberty and personal injury in an action in negligence against D

Outcome → The Court of Appeal applied in old reliance test in Gray v Thames Trains Ltd (no indications of it being overruled, it remains good law), which it held applied such that C's claim is barred by illegality. It had been held that the public policy test for illegality in Patel v Mirza applies to tort, contract and all other areas of civil law.

Lewis-Ranwell v G45 Health Services (UK) Ltd and others on Illegality (as a defence to negligence), what is the context, initial ruling before overturning and outcome?

Context → C is suffering from PTSD and schizophrenia, doctors didnt diagnose him properly and C consequently killed 3 people, and was acquitted on the basis of insanity and C made a claim on illegality.

Initial ruling → Court of Appeal argued defence didnt apply as per the courts as he was NOT held criminally liable, so there is no policy conflict between criminal and civil law. (however the dissenting view is that C will be liable to his victims and we must look at the deliberate actions of C, negative labelling of killings and impact NHS funding)

Outcome → Supreme Court overturned, and held that the fact that the claimant was not convicted due to insanity should not be a decisive consideration → "Killing a human being without lawful justification breaches the most fundamental moral rule in our society: you shall not kill. This is true even when the person bears no criminal responsibility for his actions...the killing of the three men is unlawful conduct which engages the illegality defence."