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The most straightforward way of approaching this question is to take each defence in turn. You should use headings to make it clear which defence you are discussing. As you are told to 'assume that, in the absence of applicable defences, Ben would have a good claim in negligence' there is no need to discuss issues relating to duty, breach, or causation issues in detail. Simply state in your introduction that Graeme owes Ben and Andy a duty of care, which he has breached by falling below the standard of care required of a reasonable driver and that this has caused Ben and Andy’s injuries. Remember examiners will only set questions that you can reasonably be expected to answer in the time given and so they often direct you to the specific bit of the problem they want you to focus on.
Ben, Graeme and Andy are old school friends. Every year they go camping together in Snowdonia National Park. After they arrive on the Friday night, they decide to go to the pub where Ben and Graeme spend several hours reminiscing and by the time they leave they are both over the legal driving limit. Andy has not been drinking. On their way back to the campsite they pass a farm and notice a tractor with its keys in the ignition. Graeme gets in and starts the engine. Ben and Andy quickly jump in beside him. None of them wear a seat belt. At first, Graeme drives slowly around the farmyard but when Ben says 'is that the best you can do?' he decides to go 'off-road' and drives it into a field. Unfortunately, on the rough ground he loses control of the tractor and it overturns. Ben and Andy are thrown out onto the field. Ben is seriously injured.
The defences that may apply here are voluntary assumption of risk (volenti) (IMPORTANT NOTE: section 149 of the Road Traffic Act 1988 would not apply here as they are on private land rather than on a road or in a public place – this is a common ‘trick’ used by examiners to make sure that you’ve understood this), contributory negligence, and illegality.
Voluntary assumption of risk/Volenti non fit injuria
Volenti or Voluntary assumption of risk as a complete defence may be difficult for Graeme to establish. It stems from the common sense notion that '[o]ne who has invited or assented to an act being done toward him cannot, when he suffers it, complain of it as a wrong' (Smith v Baker [1891]). In order for the defence to be established the Graeme must show that Ben and Andy voluntarily took the risk of the harm that materialized. To do this he needs to show that Ben and Andy at the material time:
- Knew the nature and extent of the risk of harm; and
- Voluntarily agreed to it (Morris v Murray [1991]).
The test is a subjective one; it is not enough that a reasonable person might have been aware of the risk – the particular claimant must know and, importantly, agree to it. It is well established that awareness or knowledge of the risk is not enough: 'A complete knowledge of the danger is in any event necessary, but such knowledge does not necessarily import consent' (Dann v Hamilton [1937]). However it is less clear exactly what is required to show that Ben and Andy have consented to the risk. You should recognise this uncertainty in the case law – comparing Lord Denning MR's approach in Nettleship v Weston [1971] with that in Morris v Murray [1991]. You should also compare Morris and Dann v Hamilton stating which one the courts is most likely to follow. In any event, it is likely that the court would find that Ben and Andy willingly embarked upon the joy-ride (they 'jump in quickly’ beside Graeme and do not put their seat belts on (ignore the temptation to consider whether tractors have seat belts!)) knowing that Graeme was so drunk he was likely to be negligent (he'd been in the pub with him all afternoon). Have a look at the counterpoint box in section 10.2.1 to see what we think.
The interesting point here is whether Ben was so drunk that he was incapable of appreciating the risk and so accepting the risk? Consent is not voluntary if the claimant is so drunk that they don't know what they are doing (and so criteria (b) above would not be established). This is a fine line. In Morris the claimant, despite his drunkenness, was held to have been to consent having driven to the airfield, and helped to fuel and start the plane. On the facts you've been given, it is likely (although not certain) that Ben would not have been so drunk as to be unable to appreciate the extent and the nature of the risks involved. You should weigh up the evidence given (don’t invent new facts) and state the conclusion you think the court will come to. A claimant who is completely drunk may be better protected than someone who is sober – i.e. Andy – or only slightly tipsy. And so, it may be that Ben’s claim is less likely to be defeated than Andy’s – however fair or unfair you think this is general discussions on areas of law are not appropriate here (though remember these issues to discuss in an essay on defences) – if you wish to mention it do so very briefly and then move on.
Contributory negligence
Graeme may wish to argue that Ben and Andy failed to take reasonable steps for their own safety and this failure has contributed to the injury he has then suffered, that is that Ben was contributory negligent. This defence does not to defeat Ben's claim entirely but rather to reduce the damages the defendant must pay. The Law Reform (Contributory Negligence) Act 1945 section 1(1) states that a court can reduce the claimant's damages by whatever amount seems just according to their share in responsibility for the damage. In order for the defence to be raised, three questions need to be addressed which you should address in turn:
- Did Ben/Andy fail to exercise reasonable care for his own safety?
- Did this failure contribute to the Ben/Andy's damage? and
- By what extent should the Ben/Andy's damages be reduced?
1. Did Ben/Andy fail to exercise reasonable care for his own safety?
The key case here is Jones v Livox Quarries Ltd [1952]. The standard objective, that is the question is: what would a reasonable person in Ben/Andy's position would have done to avoid being hurt or put another way, 'a person is guilty of contributory negligence if he 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' (Denning LJ in Jones (p 615)). Ben /Andy have clearly failed to exercise reasonable care for their safety – you should point to facts in the problem question to support this (for example, getting into the tractor with Graeme who they know has been drinking, not wearing a seat belt, saying 'is that the best you can do?')
2. Did this failure contribute to the Ben/Andy's damage?
Ben/Andy's own carelessness will only provide a defence if made some contribution to the injuries he suffered. If the claimant is careless but that carelessness did not have any bearing on their injury then the will be no defence (their negligence is not contributory). So, for example, had Ben been injured by a disgruntled bull, there would be no contributory negligence – his actions would have merely provided the setting or the circumstances in which the injuries were suffered, rather than being a cause of them; his loss – being rammed by the bull – would have had nothing to do with why it was unreasonable to go joy-riding in a tractor.
3. By what extent should Ben/Andy's damages be reduced?
You should and make some suggestion as to what would be the just and equitable to reduction here (Law Reform (Contributory Negligence) Act 1945 s1(1)). In order to decide by how much to reduce the award of damages, the courts look to the comparative blameworthiness of the parties. If they are equally to blame the damages will be reduced by 50 per cent – and so it is likely, on the facts given, that this will be the case here. Stronger answers may also refer to the guidelines in Froom v Butcher [1976] in relation to wearing a seat belt (see Table 10.1) as well as to the reasoning in Jackson v Murray [2015].
Illegality
The defence of illegality denies recovery to certain claimants injured while committing unlawful activities. Graeme is driving the tractor illegally (stolen and drunk) – accompanied by Andy and Ben. You should note that although illegality is a complete defence the courts are far more likely to use contributory negligence or volenti to limit Ben/Andy's award of damages. The defence is grounded in the principle that no action may be founded on an illegal act (ex turpi causa non oritur actio). That said, it does not mean that one can never recover in tort for injuries suffered against a backdrop of criminality. If the illegal act of the claimant is trivial or simply forms the setting to the defendant's tort, then it is unlikely to bar the claim. You need to make an assessment as to whether you think Ben/Andy's illegal act is likely to be sufficient to bar his claim. You should refer to recent illegality case law – most notably Patel v Mirz – to consider what factors the courts will take into account. However, given that the facts are analogous, you should also compare the three lines of reasoning in Pitts v Hunt [1991]: (1) the principle of ex turpi causa; (2) the inability (and unwillingness) of the court to set a standard of care owed by those jointly engaged in a criminal act; (3) affront to the public conscience. In reality it makes little difference which one you go for – especially given Ben's encouragement 'is that the best you can do?' (remember, one of the key factors in Pitts was the claimant's active encouragement of the defendant).
Though Andy escapes with only minor physical injuries, he later develops post traumatic stress disorder (PTSD) as a result of the incident. One day while walking home from work Andy ‘snaps’ lashing out at an innocent passer-by and causing them serious injury. Though it is recognised that his actions were as a result of his PSTD, he is jailed for six months and loses his job.
This additional information allows you to consider the application of Gray v Thames Trains – the facts are almost identical. You will remember that in this case the claimant sought to recover damages for this loss of earnings both before and after his imprisonment as well as general damages for his feelings of guilt and remorse and for the damage to his reputation. It is important therefore to distinguish the application of the illegality defence here, to that above. This aspect of the claim relates not to his claim against Graeme for his minor injuries and PSTD (which are unlikely to be defeated by the defence of illegality – though Andy may well be contributory negligent)– but for the harms (imprisonment and unemployment) which stems from his (Andy’s) illegal act (seriously injuring the passer-by). Following Gray Andy’s claim against Graeme is unlikely to be successful.
Conclusion
Finally, avoid lengthy conclusions: a crisp summary of the outcome of your analysis is sufficient.