Defences

General Defences to Actionable Torts

General Defences
Consent already considered in torts against person voluntary assumption of risk a broader defence
Volenti non fit injuria

Illegality
Ex turpi causa non oritur actio

Contributory Negligence
Not so general

Voluntary Assumption of Risk

Focus on negligence Has narrowed over time Key point: claimant assuming risk that defendant would breach duty not risk of injury alone
Complete defence

Elements somewhat contested traditionally:

Prior agreement Knowledge of risk Voluntariness Degree of danger

Cases Where No VAR Defence

Where no liability in negligence
Assumption of risk by claimant can go to std of care/breach: Wooldridge v Sumner, Tomlinson Risk D can treat C as having accepted; objective inquiry

Where intentional act of claimant is caused by negligence itself

Reeves; Corr v IBC: chain of causation continues Cf CN

Road Traffic Act 1972, s148(3) Where agreement can only be inferred from knowledge of previous careless conduct, or of Ds diminished capacity on occasion of N

VAR Defence Persists

Express vs implied agreement/consent Dann v Hamilton (1939): Ld Asquith
1. Negligence of D causes dangerous physical condition, then C agrees to risk 2. Implied agreement precedes negligent act, in extreme cases only: drunkenness of D, dealing with harmful explosives Considered in following cases

VAR Defence Persists: Extreme and Obvious Danger

Volenti as a defence has, perhaps, been in retreat, certainly in relation to master and servant cases It seems to me that the wild irresponsibility of the venture is such that the law should not intervene to award damages and should leave the loss where it falls. Flying is intrinsically dangerous and flying with a drunken pilot is great folly. The situation is very different from what has arisen in motoring cases.
Morris v Murray (1991, Fox LJ)

Even in Employment Context

there is a world of difference between two fellow servants collaborating carelessly, so that the acts of both contribute to cause injury to one of them, and two fellow servants combining to disobey an order deliberately, though they know the risk involved.
ICI v Shatwell (1965, Ld Reid)

Rationale for Applying Defence?

Jaffey
Need a transaction or relationship between parties If tacit agreement, necessary that C must have been fully aware not only of possibility of negligence but of facts making it highly likely that D would commit a negligent act

Tan
Flexible approach considering a range of factors

Contributory Negligence
Historically, a complete defence crude understanding of causation History still important as what amounted to CN is still relevant
CN = partly to blame separate liability in negligence

Consequences of claimant being partly to blame in this sense were altered: Law Reform (Contributory Negligence) Act 1945

Law Reform (Contributory Negligence) Act 1945

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 shall be reduced to such extent as the court thinks just and equitable having regard to the claimants share in the responsibility for the damage Section 1(1)

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Fault
fault means negligence, breach of statutory duty or other act or omission which gives rise to a liability in tort or would, apart from this Act, give rise to the defence of contributory negligence. Section 4 Williams interpretation slice section in two, negligence other act or omission which:
1. For defendant, gives rise to tort liability 2. For claimant, gives rise at common law to CN defence Standard Chartered confirmed this interpretation

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Three-part Inquiry
To establish and apply CN defence under Act: 1. Relevant fault on part of claimant 2. Claimants injury was partly the result of the claimants fault (causation) 3. In light of the causal contribution, reduction of damages as is just and equitable (apportionment)

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Establishing Relevant Fault

Although contributory negligence does not depend on a duty of care, it does depend on foreseeability. Just as actionable negligence requires the foreseeability of harm to others, so contributory negligence requires the foreseeability of harm to oneself. [That is, if a person] ought reasonably to have foreseen that, if he did not act as a reasonable, prudent man, he might be hurt himself; and in his reckonings he must take into account the possibility of others being careless.
Jones v Livox Quarries (1952, Denning LJ)

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Establishing Relevant Fault ctd

No such fault in relation to intentional torts: Standard Chartered (cf Murphy v Culhane)
Purpose of CN defence Limit to its general application

But includes intentional acts of claimant: Reeves, Corr v IBC Different for children: only if of such an age as to be expected to take precautions for his or her own safety: and then only if blame should be attached to him or her (Gough v Thorne, 1966)

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Causation
There is no clear guidance to be found in the books about causation... It is a matter of common sense more than anything else [F]oreseeability is not the decisive test of causation. It is often a relevant factor, but it is not decisive The mans negligence here was so much mixed up with his injury that it cannot be dismissed as mere history. His dangerous position on the vehicle was one of the causes of his damage Jones v Livox

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Causation ctd
The question is not what was the cause of the accident. It is rather what was the cause of the damage. In most accidents on the road the bad driving, which causes the accident, also causes the ensuing damage. But in seat belt cases the cause of the accident is one thing. The cause of the damage is another. The accident is caused by the bad driving. The damage is caused in part by the bad driving of the defendant, and in part by the failure of the plaintiff to wear a seat belt.
Froom v Butcher (1976, Ld Denning MR)

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Lifestyle Choices?
the claimants fault in becoming addicted to drugs and alcohol in his mid-teens was not a potent cause of the status and the consequent brain injury which were triggered by his fall... It was too remote in time, place and circumstance and was not sufficiently connected with the negligence of the prison staff or was not sufficiently mixed up with the state of things brought about by the prison staff to be properly regarded as a cause of the injury. [T]he claimant's addiction was no more than part of the history
St George v Home Office (2008, Dyson LJ)

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Apportionment
[C]onsideration should be given not only to the causative potency of a particular factor, but also its blameworthiness. But [in] most of these cases the only question is: what damages should be payable? This question should not be prolonged by an expensive inquiry into the degree of blameworthiness on either side, which would be hotly disputed. Suffice it to assess a share of responsibility which will be just and equitable in the great majority of cases.
Froom v Butcher (Ld Denning MR)

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Express Exclusion of Liability: UCTA 1977

Defendant can exclude liability in negligence in contractual terms or by notices Limits on this in UCTA:
Only business liability covered No exclusion/restriction of negligence liability in relation to death or PI (s2(1)) Only exclusion of other damage if term/notice reasonable Agreement to term does not of itself amount to VAR

Express clause that claimant voluntarily accepted risk relationship with s2(1) UCTA unclear

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Illegality
Different kind of defence matter of public policy that claimants should not recover if engaged in illegal activity criminality as focus, but also unlawfulness more broadly, immorality? BUT many expressions of defence and different circumstances in which it might apply Applies across legal subjects tort, trusts, contract etc Historically in tort, categories of case of illegality, eg joint illegal enterprise cases

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Modern Statement of Doctrine: Gray

Narrow rule: you cannot recover for damage which is the consequence of a sentence imposed upon you for a criminal act
Rationale: no liability because of inconsistency of requiring someone to be compensated for a sentence imposed by law because of his own personal responsibility for a criminal act

COA as a whole not tainted by illegality, subsequent illegal act by claimant

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Gray ctd
Wider rule: you cannot recover for damage which is the consequence of your own criminal act
Rationale: it is offensive to public notions of the fair distribution of resources that a claimant should be compensated for the consequences of his own criminal conduct

May raise issues of causation (Hoffmann)

Need to distinguish cases where injury simply would not have occurred but for the claimants unlawful act from cases where unlawful act central to causing injury

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Application of Narrow Rule

Gray itself Variation in Hewison v Meridian Shipping (2002, CA)
No damages to compensate for loss which would have required the doing of an unlawful act to incur Distinction between collateral illegality and cases where claimant bases claim on his unlawful act in a substantial way Ex turpi causa non oritur damnum

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Application of Wider Rule

Injury caused by police negligence in attempting to evade lawful custody: Vellino (2002, CA) Joint criminal enterprise: Pitts v Hunt (1991) Illegality by claimant acting alone: Revill v Newbury (1996, CA)
Odd case And now s329 CJA?

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Overlapping Defences
Consider Pitts v Hunt again VAR looks possible on facts, but barred by statute, illegality bars claim instead
Murphy v Culhane: both VAR and illegality

Contributory negligence may still operate when illegality or VAR does not bar claim
Revill v Newbury; Reeves/Corr Although of course, no CN when no liability, as for VAR (Wooldridge v Sumner)

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