DEFENCES 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 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) 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 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. 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. 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 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 ‘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. 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