Chapter 6 Guidance on answering the questions in the book

General defences

Question 1

Explain the difference between the defences of contributory negligence and volenti non fit injuria and evaluate the circumstances in which voluntary assumption of risk will arise.

Outline

Contributory negligence

  • At one-time contributory negligence operated as a complete defence but the Law Reform (Contributory Negligence) Act 1945 empowered the court to adjust the amount of damages to reflect the extent to which the claimant’s own carelessness or fault contributed to the accident or harm. The Act s1(1) provides that: ‘damages recoverable shall be reduced to such an extent as the court thinks just and equitable having regard to the claimant’s share in the responsibility for the damage’.
  • The Act only applies where the fault is shared between the parties. A finding of 100% contributory negligence is not permitted as the effect of this would be to defeat a claim against the defendant by holding the claimant entirely responsible Pitts v Hunt (1991).
  • The Act is not confined to negligent conduct but it can include a deliberate act on the part of the claimant where the duty of care on the defendant extends to preventing the very harm which occurred Reeves v Commissioner of Police of the Metropolis (1999) (suicide) or where children too young to appreciate the risk Yachuk v. Oliver Blais Co Ltd (1949) and Hughes v Lord Advocate (1963)
  • Liability for contributory negligence is determined looking at the cause of the damage and not the cause of the accident. The claimant’s carelessness need not be a cause of the accident, but it is essential to show that it contributed to the damage suffered Froom v Butcher (1976)
  • A very young child cannot be guilty of contributory negligence Gough v Thorne (1966) but depending on the circumstances an older child may be. In Jackson v Murray the Supreme Court adopted Lord Denning’s approach in Gough v Thorne and held that a 13-year-old would not necessarily have the same level of judgement and self-control as an adult.
  • Where a defendant’s negligence creates an emergency, the conduct of a claimant is judged with the emergency in mind as in Jones v Boyce (1816). In rescue situations, contributory negligence will only be applied if the rescuer has shown wholly unreasonable disregard for his own safety Baker v Hopkins (1959)

Volenti non fit injuria

  • If the defendant can establish ‘volenti non fit injuria’ (‘voluntary assumption of risk’) it is a complete defence and the claimant gets nothing.
  • An assumption of risk may be either express or implied but in either case the defendant must show: (1) that the claimant had full knowledge of both the nature and the extent of the risk and (2) voluntarily assumed to take the risk involved.
  • Knowledge of the risk requires more an awareness of the danger. In Morris v Murray (1991) the Court of Appeal found that the pilot’s drunkenness was so extreme and obvious that in taking the aircraft trip the plaintiff had consented to the risk.
  • Knowledge of the risk is not the same as consenting to it. Free consent to the risk implies that the claimant had some choice in accepting the risk. In Smith v Charles Baker & Sons (1891), even though the plaintiff had knowledge of the danger and he continued to work, volenti was rejected because the court refused to accept that by continuing to work the plaintiff had voluntarily undertaken the risk of danger. Although the defence will rarely be successful in an action by an employee against an employer, volenti was accepted by the House of Lords in ICI Ltd v Shatwell (1965)
  • The defence of volenti is also available to those engaged in sporting activities but the claimant might not be agreeing to accept all risks associated with the sport but will only impliedly consent to accept a lower standard of care for injuries sustained in a sport played within the ordinary rules of the game Simms v Leigh Rugby Football Club Ltd (1969) Consent to reasonable contact is consent only to non-negligent behaviour In Condon v Basi (1985)

Question 2

Rex and Jamie consumed large quantities of alcohol. Rex then drove his car recklessly, zooming in and out through the traffic to frighten other road users. Jamie encouraged Rex in his reckless driving and he also threw cans out of the car at passers-by. Rex and Jamie then decided to make a journey to obtain some unlawful cannabis to take to a party.

On their way to the party, having collected the cannabis, Rex’s dangerous driving caused the car to crash into an oncoming mini-bus carrying a group of university students. The driver of the mini-bus had instructed all the passengers to ensure their seat belts were securely fastened before they set off. Charles, one of the students, later unfastened his seat belt because of a seat-belt phobia. Charles was severely injured in the accident and evidence shows that if he had been wearing his seat belt his injuries would have been minor. Jamie suffered spinal injuries in the crash and he is planning to sue Rex (or his insurers) in negligence for the injuries he has suffered in the accident.

Advise Charles and Jamie as to any defences that may be raised to their claims in negligence.

Outline

Charles

  • The defence of contributory negligence may be raised in the case of Charles. The Law Reform (Contributory Negligence) Act 1945, gave the court power to apportion responsibility for damage between the claimant and the defendant, and provides that where damage is the result of the claimant’s own fault then the amount awarded will be adjusted to reflect this.
  • In Froom v Butcher (1976) the Court of Appeal held that in failing to wear a seat belt the plaintiff failed to take reasonable precautions for his own safety and the award of damages was reduced by 30%.
  • In Condon v Condon (1978), a plaintiff who claimed to suffer from a seat-belt phobia was not held to be contributorily negligent for failing to wear the seat belt. Contributory negligence may not be established because Charles unfastened his seat belt because of a seat belt phobia.

Jamie

  • Jamie’s claim is likely to be defeated by the defence of ‘ex turpi causa’. The courts will not assist a claimant who has been guilty of illegal conduct because it would be ‘an affront to the public conscience’ to do so and might encourage others in illegal activities. The claim in Pitts v Hunt (1991) where both parties had consumed a large quantity of alcohol when the accident occurred, was defeated by ex turpi causa.
  • Although ex turpi causa will not apply to minor traffic offences, where the parties are engaged in joint criminal activity the nature of the principal offence will determine which acts of a co-conspirator will attract the application of the doctrine. In Delaney v Pickett (2011) the accident was caused by negligent driving and the possession of illegal drugs was incidental to this. Patel v Mirza (2016) should be cited.
  • Jamie should be aware that even though Delaney’s claim was not defeated by ex turpi causa he failed to obtain compensation for his injuries. The negligent driver did have an insurance policy but this was avoided by the insurers for breach of its terms. Delaney then claimed from the Motor Insurers' Bureau (MIB) the body which provides compensation for injuries caused by an unidentified vehicle or a vehicle without insurance. Because the MIB agreement excludes claims involving vehicles