Chapter 8 Guidance on answering the questions in the book

It is unlikely that Alex’s actions in negligence against either Janice or the council will be defeated by the defence of voluntary assumption of risk because courts are clear that the claimant should have knowledge of the risk in question: Morris v Murray. Alex had no knowledge of the risks presented by either the fire hydrant or the drain. In any case, given that he was in the car already when Janice started speeding, it could not be said that he had freely accepted the risk of crashing into the fire hydrant: Bowater v Rowley Regis Corp. Again, it might not be easy to prove that Alex was engaged in relevant joint illegal enterprise with Janice just because she is speeding on account of him or just because their car has faulty lights, but it might be possible to say that the two were engaged in the joint illegal enterprise of seeking to defraud the revenue. This explains why Janice and Alex were travelling together – and also why Janice wanted to evade police notice. The policy of the law is not to assist those engaged in criminal wrongdoing. But whether the defence of illegality will succeed will depend upon application of the ‘trio of factors’ from Patel v Mirza, as affirmed in Stoffel & Co v Grondona including the test of proportionality. If the plea of illegality is successful, then Alex will be unable to bring this action against Janice. Moreover, Alex was seeking to escape the police when he got out of the car and fell into the open drain. This is a case of unilateral illegality. Finally, Alex has failed to take care of his own safety with respect to the latter action by both running away from the police and by failing to watch where he was going (Ellis v Bristol CC. cf Piccolo v Larstock Ltd). These failures were causes of the amputation: see Froom v Butcher. Damages will be reduced according to Alex’s share of responsibility, taking into account both the relative blameworthiness of his failure in care and its causal potency: Law Reform (Contributory Negligence) Act 1945, s 1.