Common Defences

1. Common Defences • Contributory Negligence • Volenti non fit injuria (consent) • Limitation • Novus Actus Interveniens (new act coming inbetween) • Ex turpi causa non oritur actio (illegality) • Exclusion of Liability

2. 1. Contributory Negligence • Only a partial defence • Apportionment - s 28 of the Supreme Court of Judicature Act 1962, as amended Jones v Livox Quarries [1952] 2 QB 608 Court of Appeal Lord Denning MR: • “Just as actionable negligence requires the foreseeability of harm to others, so contributory negligence requires the foreseeability of harm to oneself. 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.”

3. Contributory Negligence cont’d… • It has nothing to do with whether or not the Claimant’s carelessness was a cause of the accident, but rather it contributed to his damage • Owens v Brimmell [1977] - UK • Gunness v Ramdeo (2001) – Trinidad & Tobago In both cases, the Claimant sued the driver with whom he was drinking , and then willingly got into the car for a ride home. • Webb v Rambally (1994) – Jamaica The courts will hold negligent cyclist and pedestrians partially responsible for their injury.

4. Children Lynch v Nurdin (1841) Nurdin left a horse and cart unattended in the street and young Mr. Lynch climbed onto the cart with a friend and went for a joy-ride until he eventually fell off. Perch v Transport Board (1981) –Barbados High Court Child can be guilty of contributory negligent if he does not display the degree of alertness and perception expected from a child his age.

5. 2. Volenti non fit injuria (consent) • Complete defence • No liability if the person voluntarily agreed to partake in activity having full knowledge of both the nature and extent of the risk

6. Drunk drivers • Dann v Hamilton [1939] • The Claimant was injured when she was a willing passenger in the car driven by the Mr Hamilton. He had been drinking and the car was involved in a serious crash which killed him. In a claim for damages the Defendant raised the defence of volenti non fit injuria in that in accepting the lift knowing of his drunken condition she had voluntarily accepted the risk. • Held: • The defence was unsuccessful. The claimant was entitled to damages.

7. Drunk drivers cont’d… • Asquith J: • "There may be cases in which the drunkenness of the driver at the material time is so extreme and so glaring that to accept a lift from him is like engaging in an intrinsically and obviously dangerous occupation, intermeddling with an unexploded bomb or walking on the edge of an unfenced cliff. It is not necessary to decide whether in such a case the maxim 'volenti non fit injuria' would apply, for in the present case I find as a fact that the driver's degree of intoxication fell short of this degree"

8. Nettleship v Weston [1971] 3 WLR 370 • Weston was a learner driver. She was taking lessons from a friend. The friend checked that the defendant's insurance covered her for passengers before agreeing to go out with her. On one of the lessons Mrs Weston turned a bend, Mr Nettleship told her to straighten the wheel but Mrs Weston panicked and failed to straighten the wheel. She approached the pavement and Mr Nettleship grabbed the handbrake and tried to straighten the wheel but it was too late. She mounted the pavement and hit a lamp post. Mr Nettleship fractured his knee..

9. Nettleship v Weston [1971] • The defendant argued that the standard of care should be lowered for learner drivers and she also raised the defence of volenti non fit injuria in that in agreeing to get in the car knowing she was a learner, he had voluntarily accepted the risk • Held: A learner driver is expected to meet the same standard as a reasonable qualified competent driver. Volenti did not apply as he had checked the insurance cover which demonstrated he did not waive any rights to compensation. His damages were reduced by 50%

10. Volenti case law • Conden v Basi [1985] – A football player was injured from a tackle, which was described by the referee as "reckless and dangerous" and "serious foul play”. • Morris v Murray [1991] – After drinking all day, both parties decided to go for a plane ride. Morris drove to the airfield and Murray flew the plane. Plane crashed and Morris died. • Blake v Galloway [2004], CA - The claimant was injured whilst playing about with other members of his band throwing sticks at each other. The defendant appealed a denial of his defence on non fit injuria.

11. 3. Limitation • According to the Limitation of Certain Actions Act 1997, as amended: • A claim must be brought within 4 years... • 5(2)(a) from the date of tort • 5(2)(b) from the date the injury was noticed • 5(3)(a) from the date of death

12. 4. Novus Actus Interveniens • Where there is a new intervening act this may break the chain of causation removing liability from the defendant. The legal test applicable will depend upon whether the new act was that of a third party or an act of the claimant. • If the act of the third party was foreseeable, the defendant remains liable and the chain of causation remains in tact. If the act of a third party is not foreseeable this will break the chain of causation and the defendant is not liable for the actions of the third party

13. Baker v Willoughby [1970] • B was hit by W’s car and suffered a sprained ankle. B later got shot in his leg, which resulted in amputation. • Held: W remained liable for the loss of amenity and lower earning capacity even after the amputation. • The fact that the sprained ankle put B in a vulnerable position, and that the thief escaped, the courts wanted to give some kind of compensation for B’s subsequent hardship, even though novus was clear. • Lord Pearson – although the argument of novus seemed to make logical sense, it would produce a “manifest injustice” if it were allowed to succeed.

14. Novus - Act of the claimant • If the claimant's actions are deemed reasonable the chain of causation remains in tact and the defendant is liable for the actions of the claimant. If, however, the claimant's actions are unreasonable in the circumstances the chain of causation is broken and the defendant is not liable for the actions of the claimant • Reeves v Commissioner of Police of the Metropolis [2000]

15. McKew v Holland [1969] • McKew sustained an injury at work due to his employer's breach of duty. He strained his back and hips and his leg was prone to giving way. Whilst in this state he attempted to climb down a steep concrete staircase without a handrail unaided. He got part way down and felt his leg give way so he jumped 10 steps to the bottom. He suffered a fractured right ankle and was also left with a permanent disability. • Held: The claimant's action amounted to a novus actus interveniens because his action in attempting to climb the steps unaided knowing that his leg might give way was unreasonable. The defendant was therefore not liable for the injuries resulting from the incident on the stairs.

16. Rescuers • Baker v TE Hopkins & Son Ltd [1959] 1 WLR 966 Court of AppealMr Ward and Mr Wileman were employed by the defendant, Hopkins. They had been called to clean out a well. Hopkins tested the atmosphere in the well by putting a lighted candle down the well. The candle returned still lighted and thus he concluded the atmosphere was fine. He and Ward then took a petrol motored pump down the well started it up and left the well leaving the engine running on its own. The motor ran for 1 1/2 hours before it stopped of its own accord. Before leaving the site Mr Hopkins told Mr Ward and Mr Wileman not to go down the well until the fumes have cleared. The following morning Hopkins again told the two not to go down the well until he had arrived on the site. In breach of these orders Mr. Ward went down the well and was overcome by fumes. Mr Wileman called for assistance and went down the well after him. The claimant, Dr Baker, then arrived on the scene. He too went into the well to seek to rescue the two. Unfortunately all three died of carbon monoxide poisoning.

17. Rescuers cont’d… • Held: • The doctors actions were not a novus actus interveniens. It was foreseeable that if a defendant by his negligence places another in peril that someone may come to his rescue and the doctor's actions were not unreasonable in the circumstances. The Claimant's action was not defeated by volenti non fit injuria. He was and as such his actions did not count as freely and voluntarily accepting the risk. • Morris LJ: • it was said that Dr. Baker had been "unreasonably" brave. If a rescuer acts with a wanton disregard of his own safety it might be that in some circumstances it might be held that any injury to him was not the result of the negligence that caused the situation of danger. Dr. Baker tied a strong rope round his body and arranged for the rope to be held by those on the surface, and arranged to maintain oral communication with them. He in no way acted recklessly or negligently.

18. 5. Ex turpi causa non oritur actio (illegality) Ashton v Turner and Anr. [1981] After a car robbery, the getaway driver crashed the car. The other thief sued for his injuries Revill v Newbery [1996] R tried to break in to Mr. N’s house and was shot. He sued for injuries. Only successful because of the duty of care owed under Occupier’s Liability.

19. 6. Exclusion of Liability • “Do so at your own risk” is a complete defence • This will then result in consent White v Blackmore [1972] A spectator at a car racing event was injured when a car ran into the fence and sent the posts flying. Sign said: Jalopy racing is dangerous and the organisers accept no liability for any injury including death howsoever caused