Topic 9: Negligence Defences

Negligence Defences

Further Reading

  • Modeme, Modern Business Law: English Legal System and Obligations, available at: http://bookboon.com/en/en-glish-legal-system-and-obligations-ebook
  • Chapter 10.8

1. Contributory Negligence

  • Law Reform (Contributory Negligence) Act 1945 s.1(1)
  • This is a partial defence only

Conditions for Contributory Negligence

  • Conditions:
    • (a) The claimant must have failed to exercise reasonable care for their own safety; and
    • (b) This failure must have contributed to the claimant’s injury or loss.

(a) Did the Claimant take reasonable care for his/her own safety?

  • Objective standard - Would a reasonable person in the claimant’s position have acted differently than the claimant?

Cases

  • Claimant injured in a motor accident but was not wearing a seat belt – defence applied (25%)). Froom v Butcher [1976] QB 286:
  • Claimant had his legs crushed by a negligent driver while he was recklessly hitching a ride on the tow bar of a loading vehicle – defence applied (20%)). Jones v Livox Quarries Ltd [1952]:

Children

  • Gough v Thorne (1966) 1 WLR 1387
    • Two questions:
      • (a) Is the child old enough to understand the danger and take precautions?
      • (b) Has the child acted as a reasonable child would.

Reduction of Damages

  • The Law Reform (Contributory Negligence) Act 1945 section 1(1):
    • A court can reduce claimant's damages by any amount that seems just according to the claimant’s share in responsibility for the damage.

Cases

  • Froom v Butcher [1976]
    • Failure to wear a seatbelt - reduction of 20%
  • Reeves v Commissioner of Police for the Metropolis [2000]
    • Suicide by a person in police custody - 50% reduction.
  • Jackson v Murray [2015]:
    • Reduction of 50% because claimant negligently ran onto the road.

2. Consent (Volenti non fit injuria)

  • Meaning: ‘No wrong will be done to the willing’.
  • Complete defence to negligence
  • Mere knowledge of risk is not equivalent to consent - Smith v Baker [1891] AC 325
  • The claimant must have acted freely and voluntarily and shown a willingness to waive any claim in negligence.
  • Nettleship v Weston [1971] 3 All ER 581]

2 Ways to Raise Consent Defence

  • (i) The claimant knowingly consents to the specific harm caused by the defendant or to the risk of harm being caused by the defendant’s negligence.
  • (ii) The claimant knowingly consents (or is viewed to have consented) to the defendant’s exclusion of liability for any injuries/losses.

Cases

  • O’Reilly v National Railway and Tramway Appliances [1966]:
    • Employee hit unexploded bomb with hammer – defence applied)
  • Titchener v British Railways Board [1983]:
    • Claimant hit by train while negligently crossing a railway line – defence applied)
  • Morris v Murray [1991] 2 QB 6
    • Defence applied where claimant flew in defendant’s private plane after both parties had been drinking heavily. The plane had crashed killing the defendant and injuring the claimant.

Exclusion of Consent Defence

  • The defence cannot apply in relation to:
    • Passengers in road traffic accidents/collisions - Road Traffic Act 1988, s 149.
    • Rescuers who endanger themselves to rescue others or the defendant from the effect of defendant’s negligence.
    • Employees working with defective equipment or under dangerous conditions unless they have voluntarily assumed the risk of injury.
    • Children and persons of unsound mind
    • Protections under the Unfair contract Terms Act (UCTA) 1977 and Consumer Rights Act 2015).

3. Illegality (ex turpi causa non oritur actio)

  • Complete defence
  • Applies in two ways:
    • 1. A claimant cannot recover damages for the consequence of a criminal sanction for his unlawful act (e.g., a fine or imprisonment).
    • 2. A claimant cannot recover damages for losses incurred while engaged in a criminal activity.

1. No recovery of damages for consequences of one’s crimes

  • No damages awarded to C who killed someone after being released from a mental facility) Clunis v Camden & Islington Health Authority [1998]
  • No award of damages to a murderer (committed after an accident) for loss of income while in prison) Gray v Thames Trains [2009]

2. No recovery of damages for losses incurred during a crime

  • Ashton v Turner [1980]:
    • No award of damages to a criminal injured by a colleague while escaping)
  • Joyce v O’Brien [2013]:
    • No award of damages to a thief who was injured by a fellow thief while escaping)
  • Pitts v Hunt [1990]:
    • No damage was awarded to the claimant who was riding illegally and drunkenly on a motorbike with the defendant).

Exclusion 1: The illegal act is trivial or only forms a background to the defendant’s tort:

  • National Coal Board v England [1954] 1 All ER 546:
    • Defence of illegality not applicable against an employee injured while helping another employee to fire a shot in breach of a statutory regulation

Exclusion 2: Where the claimant is not seeking to benefit from his illegality as such:

  • Defence not applicable against an escaping burglar shot by an occupier) Revill v Newbery [1996] 1 All ER 291:
  • Defence not applicable in respect of money loaned by C to D for purpose of insider trading). Patel v Mirza [2016]:

Exclusion 3: Statutory obligation:

  • The defence of illegality will not apply In respect of on obligation imposed by statute
  • National Coal Board v England [1954] 1 All ER 546.
    • Defence not applicable against the employee injured while helping another employee to fire a shot in breach of a statutory regulation