DEFENCES
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There are three defences available for the defendant in a tort claim
i.
CONTRIBUTORY NEGLIGENCE – Partial defence
ii.
VOLENTI NON FIT INJURIA (consent) – Full defence
iii.
ILLEGALITY – Full defence
CONTRIBUTORY NEGLIGENCE
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This is a partial defence. The defendant does not escape liability. His damages will be reduced to
reflect the defendant’s contribution.
Defendant is arguing that the claimant is also partially responsible for his injuries. As such his
damages will be reduced as per Law Reform ( Contributory Negligence) Act 1945
Defendant must prove that the claimant has failed to take reasonable care for his safety and this
has contributed to the accident or injury.
Example –Claimant not wearing helmet or seatbelt or shoes.
Froom v Butcher – Seatbelt – if by wearing a seatbelt, the injuries can be prevented (25%
reduction). If by wearing a seatbelt, injuries would be less serious (15%). If wearing a seatbelt
would not have made any difference to the injuries (0%)
When children’s are involved – the courts will take into account whether children at that age are
expected to take reasonable care for their own safety.
Yachuk v Oliver Blais – no contributory negligence because a child of 9 year old is not expected
to know the danger of handling petrol.
Gough v Thorne – no contributory negligence. According to lord denning, a child should only be
found contributing to the negligence if the child is blameworthy. Whether the child of such age
is expected to take precaution? On the facts, the child was not expected to take precaution.
Evans v Souls Garage – 13 year old child is expected to know the danger of handling petrol –
contributory negligence – reduction 33.33%
VOLENTI NON FIT INJURIA (CONSENT)
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This is the defence of consent – No injury can be done to a willing person ( Volenti non fit
injuria). This is a full defence, as such if the claimant is successful in relying on the defence – he
has no liability.
The claimant must have voluntarily accepted the risk. Therefore there are 2 crucial questions –
Whether the claimant was aware of the risk? Did he voluntarily accept the risk?
On the issue of knowledge of the risk and whether the defendant accepted the risk – Expressly
given or implied from the claimant’s conduct
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Nettleship v Weston – Defendant argued that the claimant agreed to provide driving lessons
despite the fact that she was a learner, and therefore he is aware of the risk and voluntarily
accepted the risk. However the argument was rejected. Lord Denning emphasized on the fact
that the insurance company will be paying the damages – the aim of law of tort is to
compensate the victim.
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Sometimes, it is obvious that that claimant knew the risk and through his conduct, it can be
implied that accepted the risk. Morris v Murray – Claimant and defendant both were drunk and
the defendant flew the plane with the claimant being the passenger. Plane crashed and claimant
sued defendant for the injuries. Defendant argued that the claimant was aware of the risk ( the
risk was obvious) and through his conduct of getting into the plane he voluntarily accepted the
risk. The defence was successful.
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However note – S149 of the Road Traffic Act 1988 – if it is a situation of compulsory insurance,
the fact that the person is aware if the risk and voluntarily took the risk does not negate liability.
See Pitts V Hunt
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Chadwick v British Railways Board – Claimant was a volunteer rescuer and he sued the
defendant for injuries he suffered. Courts were of the opinion that policy consideration favored
the rejection of the defence. Although the claimant has the knowledge of risk, he did not
voluntarily accept the risk. He was acting out of social necessity to save lives. Note there must
be a genuine emergency. See also Haynes v Harwood – duty to protect the public
ILLEGALITY
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‘Ex turpi cause non oritur actio’ – no action may be based on an illegal cause
If someone suffers harm while engaged in an illegal act, the person cannot sue in tort. This rule
is based on public policy – it would be against public policy to allow such claims
Classic example would be the case of Ashton v Turner – The claimant and defendant were
committing burglary. While driving away from the burglary, defendant crashed and injured the
claimant. The courts rejected the claim because at the time of the injury, the claimant was
involved in a crime.
Vellino v Chief Constable of Greater Manchster – The police went to the claimant’s second floor
flat in order to arrest him. He tried to climb out of the window, as he has done on previous
occasions but fell and was paralysed. It was held that his injury was caused while he was
committing a crime, evading lawful arrest and illegality defence will apply. Therefore his claim
failed.
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Pitts v Hunt – After spending the evening drinking, the claimant and the defendant set off home
in a motorcycle. Claimant knew that the defendant had no licence or insurance. Claimant
encouraged him to drive recklessly. They were involved in an accident. Defendant died and the
claimant was injured. Claimant sued the defendant’s estate. Claimant was not allowed to sue
because of illegality – He was encouraging the defendant to commit illegal act
Gray v Thames – The claimant suffered PTSD due to a train accident caused by the defendant.
The claimant later killed someone because of his condition; he was convicted of manslaughter
and detained in a secured hospital. He sued for damages for the PTSD and loss of earnings.
Claimant was entitled to compensation only up to the time he was detained but at the point of
detention onwards, the defence of illegality will apply.
Revill v Newberry – defendant is an old man, slept in his property to protect it. When he heard
the claimant trying to break in, he shot him through a hole in the door. Defendant argued
illegality. Here the courts rejected the claim. The courts concluded the defendant owes him duty
and illegality failed.
In conclusion, it is not always clear how the courts will apply the defence. The courts will
consider two factors; the connection between the criminal act and the harm - the clearer the
connection, most probably it will be classified as an illegal act. Whether the crime is major or
minor – a major crime most likely to result in the defence of illegality