Week 3: Tutorial
Defences
The Substantive Law
In a negligence action a defendant may be able
to defeat a plaintiff’s claim (or have the damages
awardable reduced) by successfully pleading the
defences of:
• Ex Turpi Causa
• Volenti Non Fit Injuria
• Contributory Negligence
It is important that you fully understand these
defences and how they have been interpreted and
applied by the courts.
Questions
1.Why is it difficult for a defendant to successfully plead ex turpi
causa?
2.How important is knowledge in the defence of volenti?
3.Will the courts ever imply an agreement to consent to risk?
4.What are the key elements of contributory negligence?
5.How do the courts apportion damages between the plaintiff
and defendant if contributory negligence is established?
6.Why are ex turpi causa and volenti complete defences?
Your Thoughts?
Ex turpi?
What are the difficulties?
Your Thoughts?
The significance of “knowledge” to consent (is it
enough? .. think Montgomery)
Volenti (consent)/Assumption of risk. Are they
the same? Can consent be implied?
Your Thoughts?
Contributory Negligence (CN) …
“Blameworthiness” & “Causation” …meaning?
Effect of CN?
My Thoughts
ETC is easily the most difficult defence;
because the cases are contradictory. There is no
all-pervading approach, the law has recently
been dominated by non-tort (negligence)
decisions and (somewhat unusually) HK law is
out-of-synch with the UK law approach (ie is it
Patel v Mirza or Tinsley?).
My Thoughts (cont)
The courts seem unable to decide whether:
the key factor should be “public conscience”, or
punishing wrongdoing, or the need to plead
one’s wrongdoing, or even whether some crimecommitters are more criminal than others (in
pari delicto).
My Thoughts (cont)
With volenti/assumption of risk (very closely
related if not identical) “consent” is needed but it
must be “informed consent” (P must appreciate the
risk or at least be in a position where s/he should
appreciate it).
Consent can often be “implied”. It is said that
“implied consent” is why we cannot sue someone
who brushes against us in the MTR…and is why
boxers can’t sue opponents for hitting them!
My Thoughts
Contributory Negligence (CN) is a VERY
important (semi) defence. It permits the
avoidance of an “all or nothing” approach where
a careless D injures an also careless P (NB that
before statutory reform CN was an absolute
defence; which explains why WM#2 is decided
differently from WM#1). This “absoluteness”
caused much injustice (& some judicial
creativity!).
My Thoughts
The courts decide the “balancing act” in
awarding P’s damages by considering not only
“causation” (how did P’s injury occur) but also
“blameworthiness” (one word). So, for example, it
is more morally “blameworthy” to drive at 100 mph
in a busy, pedestrian-filled area, than to cross a
road looking at one’s phone).
Finally remember … CN has no implication of
“punishing” P; it merely serves to reduce P’s
potential damages award.
Scenario 1
Mr Wong is an exceedingly large man. One day he asks to go for a drive in his friend Mr Chan’s
car. Mr Wong is unable to fit the car seat belt around his waist and shoulders because of his huge
size. Mr Chan is consequently unwilling to take his friend for a drive. Mr Wong says “don’t worry,
I will pay the fine if the police stop us and issue a road traffic violation notice for my failure to
wear a seat belt.” Mr Chan is still reluctant to take his friend Mr Wong for a drive because he
cannot wear a seat belt. Mr Wong then says “everything will be fine and if anything happens to
me I won’t expect any compensation from you.” Mr Chan then says “OK, you agree to travel at
your own risk.” Mr Wong says “I do.”
They then set off for a drive in Mr Chan’s car. Some 10 minutes later Mr Chan gets a call on his
mobile phone which he answers. He becomes so carried away with his telephone conversation
that he takes his eyes off the road and drives through a red light and hits a truck. The impact of
the collision results in Mr Wong being thrown through the front window of the car. Mr Wong has
suffered serious cuts to his face and head injuries. A police accident report finds that Mr Wong
would not have been thrown through the front window of the car if he had been wearing a seat
belt.
Mr Chan has come to you for advice as Mr Wong has instructed a solicitor to make a tort claim
for compensation against Mr Chan. Fully advise Mr Chan as to his negligence liability.
Your Thoughts?
The question tells us that your “client” is being
sued in tort. So you need to consider:
What possible defences exist here in respect of
W’s prima facie case against Chan?
ETC?
Volenti?
CN?
My Thoughts
ETC possible, as it seems W may have
encouraged C to break the law. However, the law
broken is carrying a passenger without a seat belt &
not the careless driving (in which W was not
involved).
W may bring his action for negligence without
invoking his criminality (Tinsley). There seems,
moreover, to be no affront to the “public
conscience”.
My Thoughts (cont)
Volenti* (consent) is possible; but again W
may have consented to the risks from no seat
belt rather than C’s extremely careless/criminal
driving.
Volenti, in practice, is very unlikely; especially
as this is a driving/insurance situation.
My Thoughts (cont)
This is, however, a classic CN situation. W has no
seat belt and his significant injuries would not have
occurred (or would certainly be less serious) absent this
CN.
Always keep in mind the two factors of
“blameworthiness” and “causation” when considering
CN. In causation terms, W has clearly (from the
question) contributed to his misfortune. Moreover, C’s
negligence is clearly the more “blameworthy”. A
deduction of around 25% is likely here.
Scenario 2
Mr Fat owns a pizza home delivery business. He makes pizzas in his shop in Shatin and has them delivered by
motor cycle to his customers in the New Territories. As part of his business Mr Fat owns a number of motor cycles
which are used for pizza deliveries. Mr Fat’s business is busiest at the weekends when he hires a number of temporary
drivers. He only checks that they are licensed to drive a motor cycle but not to see if they have any criminal or driving
convictions. Last weekend Mr Fat hired a number of temporary drivers and got them to sign an agreement which
provided that they drove at their own risk and that he is not liable if they are killed or injured working for him.
Two of his drivers were involved in the following accidents at the weekend:
Driver A belongs to a particular religion which requires its members never to cover their heads. Consequently, Driver
A was not wearing a crash helmet when delivering pizzas for Mr Fat. The brakes on Driver A’s motor cycle failed and
as a result of not being able to stop his motor cycle he ran into the back of a car. Driver A was thrown off his motor
cycle landing on his head suffering severe head injuries. The police report finds that Driver A’s head injuries would have
been significantly less severe if he had been wearing a crash helmet. Driver A is suing Mr Fat for negligence.
Driver B picks up his girl friend Cindy, breaching Mr Fat’s instructions that his drivers are not to carry passengers.
Driver B and Cindy are hungry so they go to a restaurant for a meal. Realising they have no money they run out of the
restaurant without paying, jump onto the motor cycle and speed off. The restaurant owner chases after them in his car.
The lights on the motorcycle do not work and so the restaurant owner has to drive very close to the motor cycle in order
to keep it in sight. Driver B has to suddenly put on his brakes. The restaurant owner who is following closely behind
the motor cycle is unable to stop in time and hits the motor cycle. Driver B and Cindy are severely injured when they
fall off the motor cycle. Driver B and Cindy are suing Mr Fat for negligence.
Fully advise Mr Fat about his negligence liability to Driver A and B and Cindy.
Your Thoughts?
Again, you are asked to advise a “defendant”,
so you are looking at his possible defences. As a
matter of “style” you start something like:
“I am asked to advise my client, Mr fat, as to
possible defences he may raise in potential tort
actions against him by drivers A and B.
• Driver A?
• Driver B?
My Thoughts: DA
Prima facie breach of employer’s duty of care
to employee (defective bike).
Volenti? DA Signed form BUT this will not work
because of MVI (TPR) Ordinance (otherwise it
would defeat the purpose of the legislation).
Moreover, under CECO 7(1) not possible to
exclude liability for death or PI caused by
negligence and, in substance, this is an
exemption clause.
DA (cont)
ETC unlikely. DA is driving without a helmet
which is illegal BUT the law ignores minor acts of
unlawfulness.*In cases where a motorist is
injured by not wearing seat belt etc, the
approach is always CN rather than ETC.
DA (cont)
CN possible but CN applies to negligence in
everyday sense not duty/breach etc & court
might believe it is not negligent because of
religious views.*
Conversely, since there is no statutory
exception in HK, the court might take the view
that CN should apply. If the driver is not
prepared to wear a helmet on a motor bike, he
should not ride.
My Thoughts: DB
ETC is much more likely here. It is a clear criminal
act (making off etc) & the “incident” (escape/chase
etc) is closely connected to the accident
(Sacco/Vellino). It would be an affront to the public
conscience to allow DB to sue here.
As so often, ETC overlaps with volenti, since DA
clearly understands the risks of a high-speed
getaway (though not aware of the defective light).
In the unlikely event of the above full defences
being unsuccessful, CN would definitely apply.
My Thoughts: Cindy
Additionally, any action by Cindy is unlikely as
she is an unforeseeable victim (clear
instructions/no lift ….and certainly not assisting
the job unlike Rose v P) so no duty.
And, in general negligence terms F could also
claim a break in chain of causation.
Re defences, as such, Cindy appears “volenti”*
& is subject to ETC rule as a willing co-criminal.