2: Defences

Defences

  • Overview of legal defenses in tort law that can be invoked when a tort has been established. Issue of liability is influenced by various defenses recognized in the law.

  • Relevant institution: University of Leicester.

Negligence

  • Core elements of negligence include actionable damage, a duty of care, breach of that duty, and causation.

  • After establishing a tort, defendants may raise defenses to mitigate their liability or negate it altogether.

Three Defences

  • 1. Volenti non fit injuria (Voluntary assumption of risk)

    • A complete defense to negligence, asserting that a person who voluntarily assumes a risk cannot claim for injuries that arise from that risk.

  • 2. Ex turpi causa non oritur actio (Illegality)

    • A complete defense grounded in the principle that no action arises from a dishonorable cause. If a claimant's injury was a direct result of their illegal actions, they may be barred from recovery.

  • 3. Contributory negligence

    • A partial defense that reduces the claimant's damages based on their share of responsibility for the harm.

Voluntary Assumption of Risk (Volenti)

  • Key Case: Smith v Baker [1891] AC 325

    • The principle states that if an individual has consented to risk, they cannot later claim against it.

Volenti Requirements

  • 1) Knowledge of Risk

    • The claimant must understand the nature and extent of the risk involved.

  • 2) Voluntary Assumption of Risk

    • The claimant must voluntarily accept the risk.

    • Cases (examples):

      • Dann v Hamilton [1939] 1 KB 509

      • Morris v Murray [1991] 2 QB 6

Knowledge of Risk

  • The claimant’s awareness of the risk is crucial in assessing voluntary assumption.

  • C must have been cognizant of both the nature and magnitude of the risk.

Volenti: Voluntary Assumption of the Risk?

  • Smith v Baker [1891] AC 325

    • Generally, an employee does not voluntarily accept negligent risks at work.

  • ICI v Shatwell [1965] AC 656

    • An exception exists if the employee deliberately disobeys safety protocols.

  • Note: Different considerations in driving-related cases per s.149 of the Road Traffic Act 1988.

  • Difficulty establishing 'volenti' compared to causation issues in contributory negligence.

Ex Turpi Causa Non Oritur Actio / Illegality

  • Current Case: Henderson v Dorset Healthcare [2020] UKSC 43

    • Defense based on public policy principles, applying precedent from Patel v Mirza [2016] UKSC 42.

Henderson v Dorset Healthcare

  • The application of the illegality defense involves use of a 'structured discretion':

    • Stage 1: Examine policy reasons that could deny the claim.

    • Stage 2: Examine reasons that would favor not applying the illegality defense.

    • Stage 3: Assess whether denying the claim is a proportionate response.

Forms of Illegality Defence

  • Wide Form: Claim defeated if based on an illegal act the claimant was involved in.

  • Narrow Form: Claim defeated to uphold integrity of criminal justice.

  • Importance of maintaining public confidence and not allowing tort to contradict criminal law.

Wider Form Example

  • Analysis on whether the illegality was a substantial cause or only incidental:

    • Delaney v Pickett [2011] EWCA Civ 1532 – defence failed.

    • Joyce v O’Brien [2013] EWCA Civ 546 – defence succeeded.

    • Beaumont v Ferrer [2016] EWCA Civ 768 – unclarity remains.

Narrow Form Example

  • Role of tort law in relation to penal actions imposed by criminal law:

  • Case Lewis-Ranwell v G4S Health Services (UK) Ltd [2024] EWCA Civ 138

    • Defense does not apply if the individual did not know their actions were wrong.

Approaching Illegality Defence

  • Follow the three-stage structured discretion established in previous cases.

  • Identify whether the case falls under wide or narrow form.

  • Apply relevant case law and analyze if the illegality defense can be upheld.

Contributory Negligence

  • Law Reform (Contributory Negligence) Act 1945, s1(1):

    • Allows for damage claims not to be entirely defeated by the claimant's fault but to be reduced according to the extent of their responsibility for the damage.

Contributory Negligence Analysis

  1. Was the Claimant Acting Negligently?

    • Objective standard applied.

    • Consideration of reasonable foreseeability of harm.

  2. Causation:

    • Utilizes the 'but for' test to determine if C's actions contributed to the injury.

  3. Reduction of Damages:

    • The court’s discretion on how much to reduce damages based on responsibility.

How Damages are Reduced

  • Examples include:

    • Smith v Chief Constable of Nottinghamshire Police [2012] EWCA Civ 161 – Third of damages reduced.

    • Froom v Butcher [1976] 2 QB 286 – 15% reduction for not wearing a seatbelt leading to more severe injuries.

Case Examples for Negligence

  • Scenario 1: Vadim offers to take Wilma flying while drunk, resulting in her serious injury. Legal implications for negligence against Vadim and extent of recoverable damages are evaluated.

  • Scenario 2: Kieran’s mobile phone use while driving causes an accident affecting Lulu and Mabel, raising issues regarding their potential negligence claims.

  • Scenario 3: Kurt crashes the car while driving Jenny to the hospital post-drinking, leading to her significant injury. Analysis of her potential remedies under negligence is necessary.