Defences in Tort

There are two options open to stop a defendants liability: 1) by denying the claimant a cause of action (i. e. the defendant was not negligent; no duty, too remote) 2) providing the defendant with an appropriate defence Volenti non fit injuria (consent) Willing acceptance of the risk associated with the negligence; knowledge is not enough Complete escape of liability Lord Denning in Nettleship v. Weston = nothing will suffice short of an agreed waiver of any claim for negligence: asking for insurance in Nettleship No consent to shortcomings in safety: Simolden v. Wurtworth (negligent referee) Dann v.

Hamilton (drunk driver) – claimant chose to travel by car, knowing the driver was under the influence. The driver was killed and the claimant was injured and claimed the volenti defence. Held; apart from extreme cases, the maxim does not prevent claimants who knowingly and willingly accept the risks of drink driving from succeeding in their claim. This was not an extreme case so the injured claimant could recover. ICI v. Shatwell (two brothers negligent) – two brothers, employed by the appellants, cause an explosion by performing an act contrary to statute an company policy and they knew the risks involved.

Held; where employees had deliberately disobeyed an order, volenti was a complete defence provided the defendant employer was not at fault and therefore it succeeded. Wooldridge v. Sumner (horse rider) – rider of a horse lost control and hit the photographer. Held; spectators knowingly accepted the risk of lapse of skill or judgement in sporting competitions, so the volenti defence was available to the horses owner, unless the competitors actions were reckless. White v. Blackmore (spectator rail) – man injured and killed while watching a race partly due to a negligently erected spectator rail.

Signs outside the ground absolved the liability of the organisers from harm ‘however caused’ to the spectators. The dead mans family claimed against the organisers. Held; volenti was not a defence as the man did not know of the risks associated with the defendants negligence in safety precautions, but were excluded from liability by the signs, which they were allowed under OLA s. 2(1) Morris v. Murray (drunk pilot) – claimant willingly embarked on a flight on a plane piloted by his friend, with whom he had been drinking alcohol all afternoon.

He also helped start and refuel the aircraft. Held; as the risk was so obvious and great, and the plaintiff was sober enough to appreciate this, the volenti defence was available. This would be an ‘extreme case’ as per Dann v. Hamilton. Johnstone v. Bloomsbury (ill doctor) – the claimant was a doctor, part of his contract stated that he be required to work extra hours. As a result, the claimant became ill from lack of sleep. Held; the term on the contract could be construed as a term excluding or restricting liability for negligence and thus void under UCTA s. 2(1).

Also, the contractual exclusion defence had to be seen in the light of the duty of care owed to the defendant’s employee, the claimant. Contributory Negligence Where fault is found on the part of both the claimant and the defendant, damages will be reduced accordingly to what is equitable Law Reform contributory Negligence Act: courts give effect to fairness S. 1(1) reflect the relative responsibility for the damage suffered Stapley v. Gypsum Mines (unsafe roof) – 2 workers in a mine were told to bring down an unsafe roof – they could not and carried on working and one of them died when the roof collapsed.

Held; the workers joint decision to carry on working was a contributory cause of death. Froom v. Butcher (no seatbelt) – man injured in a car crash as a result of the defendants negligent driving. He suffered head and chest injuries as he was not wearing his seatbelt. Held; the question in determining contributory negligence was what was the cause of the damage, not the accident, so contributory negligence was found here. This case created a tariff scheme whereby no contributory negligence with a seatbelt, and a 25% reduction of damages if the claimant wasn’t wearing one.

Capps v. Miller (crash helmet moped) – a boy riding a moped with an unfastened crash helmet was knocked off and injured due to the negligent driving of the defendant. His helmet came off resulting in serious head injuries and brain damage. Held; although the accident was entirely the fault of the defendant, the damage was more severe due to the claimant’s negligence, which, although not as bad as someone who wore no helmet, still allowed a 10% reduction in damages. Fitzgerlad v. Lane (pedestrian hit) – more than one tortfeasor and contributory negligence.

The claimant walked onto a busy street when the crossing light was on red and he was hit by two cars that were going too fast. Held; you must first determine the claimants contribution under the Contributory Negligence act, and only then consider the apportionment of responsibility between the defendants, rather than consider the defendants as a group and then apportioning blame. Reeves v. CMP (suicide watch) – a man in prison committed suicide whilst the defendant officer was supposed to be on suicide watch.

Held; as the man had responsibility for his own life and deliberately took it, the defence of contributory negligence could succeed and the blame was halved. SAAMCO (negligent building evaluations) – the defendant provided negligent valuations for certain properties and on reliance of these valuations the claimant advanced loans secured on the properties. When borrowers defaulted the resulting losses were extensive. Hoffman stated that the duty was to take care that the valuation is accurate therefore the defendants were liable for damages that are attributable to the overvaluation.

The first step: what losses would have been suffered if the valuation given had proven to be correct? This set a limit on the loss recoverable – if correct the lenders would have had enough security and would have protected them in a falling market. It does this by concluding – no other losses are regarded as attributable to the breach of duty. Platform Home Loans v. Oyston Shipways (SAAMCO type case) – House of Lords with no Lord Hoffman in a SAAMCO type case. They applied the provisions of the 1945 act. Defendant valued property at ? 1.

5m in 1990 with a true value of ? 1m. The claimant advanced ? 1. 05m loan secured on the property but in 1994 the claimant sold the property for ? 435k. •Sum lost = ? 611k •Over valuation = ? 500k •According to SAAMCO the cost attributable to the breach of duty = 500k •Held; a reduction on the basic loss (611k) should be apportioned for not asking the correct questions and therefore within the amount produced by SAAMCO; within the breach of the duty. Ex Turpi Causa: a court won’t enforce a claim where the claimants own actions are illegal or immoral Ashton v.

Turner (get-away car) – a burglar was injured as a result of negligent driving in a get-away vehicle after a burglary. Held; that in some circumstances, the courts wont recognise a duty of care existing towards the claimant if they were injured during an illegal act. Kirkham v. CC of GMP (suicide in custody) – the claimants husband committed suicide whilst in custody because the defendants failed to make the risk of suicide aware. Held Lloyd LJ: ‘whether to afford relief in such a case…would shock the ordinary citizen…that answer should be in the negative. ’ Tinsley v.

Milligan (property case) – claimant and defendant contributed to the purchase price of a house and it was put in the sole name of the claimant in order to defraud the DSS. They couple argued that the claimant asserted sole ownership on the house. Held; the illegality did not defeat the resulting trust otherwise the claimants illegality would have obtained legal and beneficial ownership of the whole house. Clunis v. Camden (applying Tinsley in tort) – man had a mental health disorder the health authority knew about, but did not force him to attend after care appointments.

He killed a man in an unprovoked attack, and was sent to a secure hospital. He claimed against the health authority. Held; despite the disorder, he still was responsible for his act and knew what he was doing. The law won’t let someone rely on an illegal act to put forward a case, as long as they are presumed to know the unlawfulness of their act. Costello v. CC of Derby Cons (ford escort) – the claimant succeeded in an action for the return of a Ford Escort involved in a theft. Held; only someone with a better title defeats the claim. Meah v.

McCreamer (rape) – defendant found guilty of rape in a civil action. He claimed compensation in respect of the damages owed, blaming the rapes on a personality change from a car crash. Held; his claim was denied – otherwise he would have been denied by an illegal act of the rape. Pitts v. Hunt (drunk biker) – the claimant and the defendant motorcycle rider were both drunk, and the claimant was encouraging illegal and reckless riding. In the crash, the claimant was injured and the defendant died. Held; although they weren’t strictly performing the act, their case was still based on an illegal act.

There was a distinction between illegal enterprises where there is an obvious standard of care and those where there is not – there was none in this case. Vellino v. CC of Manchester (escaping police) – a man escaped the hands of the police and jumped out of a window to escape, fracturing his skull and suffering brain damage. Held; that the police owed an arrested person no duty of care to prevent harm from coming to them in a foreseeable attempt of escape – it was an illegal act, so the defence of ex turpi causa was afforded to the police.