Defences

Lesson Objectives By the end of the session you should be able to: Explain the defence of volenti non fit injuria. Explain contributory negligence. Describe ex turpi causa non oritur action.

Volenti non fit injuria This is Latin for “to a willing person, injury is not done”. It is sometimes shortened to just ‘volenti’. To use successful use volenti the defendant must prove that the claimant had knowledge of the risk and willingly consented to accept that risk. Volenti is a complete defence that will mean there is no liability for injury or loss.

Morris v Murray [1990] The claimant (Morris) went drinking with his friend (Murray) who had a pilot’s licence. The friend then invited the claimant to go for a flight in his light aircraft. The friend piloted the plane so badly that it crashed. The friend was killed and the claimant was badly injured. The claimant brought an action against the deceased’s estate for his injuries. Question: What do you think was the court’s decision?

Morris v Murray [1990] The trial judge awarded the claimant damages. However, on appeal the Court of Appeal accepted the defence of volenti and overturned the decision. Lord Justice Fox: “In my opinion, on the evidence the plaintiff knew that he was going on a flight; he knew that he was going to be piloted by Mr. Murray; and he knew that Mr. Murray had been drinking heavily that afternoon.” http://www.bailii.org/ew/cases/EWCA/Civ/1990/10.html

Passengers in Vehicles Volenti can be rarely be used as a defence in negligent driving even if a passenger accepts a lift with an obviously drunk driver. The Road Traffic Act 1988 s 149(3) states: The fact that a person so carried has willingly accepted as his the risk of negligence on the part of the user shall not be treated as negativing any such liability of the user. [You might wish to look up the word ‘negativing’ in a dictionary!]

Sporting Activities Volenti is usually a defence to injuries experienced during sporting activities because players are regarded as having consented to the risks associated with that particular sport provided any injuries were not caused by breaches of the rules of the game. Some sporting activities carry risks for spectators such as being hit by a rugby ball while watching a match in a stadium or playing field. The approach by the courts seems to be that an error of judgement or lapse of skill does not give rise to liability as the spectator has accepted the risks in going to watch the live activity.

Wooldridge v Sumner [1962] Facts: During a horse show a photographer got in the path of a galloping horse. There was conflicting evidence but it was suggested that either the horse had taken fright or that the rider had taken a corner too fast. Held: The Court of Appeal held that there had been no breach of the duty of care owed as there was no evidence that the rider was being negligent.

Wooldridge v Sumner [1963] Lord Justice Diplock: The most that can be said against Mr. Holladay is that in the course of and for the purposes of the competition he was guilty of an error or errors of judgment or a lapse of skill. That is not enough to constitute a breach of the duty of reasonable care which a participant owes to a spectator. In such circumstances something in the nature of a reckless disregard of the spectator's safety must be proved, and of this there is no suggestion in the evidence. Lord Justice Sellers: There can be no better evidence that Mr. Holladay was riding within the rules than that he won, notwithstanding this unfortunate accident in the course of the event, and I do not think it can be said that he was riding recklessly and in disregard of all safety or even on this evidence without skill [Holladay was the rider of the horse. Sumner was the owner. Wooldridge was the claimant and injured spectator.] http://www.bailii.org/cgi- bin/format.cgi?doc=/ew/cases/EWCA/Civ/1962/3.html&query=(Wooldridge)+AND+( v)+AND+(Sumner)

The Courts Reluctance to Accept Volenti In practice the courts are often reluctant to accept volenti as a defence. Discussion: Why do you think the courts are often reluctant to accept volenti as a defence? Hint: volenti is a complete defence and if successfully argued, the defendant will not be liable for the claimant’s losses. We will re-examine this question later when we have considered contributory negligence.

Contributory Negligence Under the Law Reform (Contributory Negligence) Act 1945 s1(1) states: Where any person suffers damage as the result partly of his own fault and partly of the fault of any other person or persons, a claim in respect of that damage shall not be defeated by reason of the fault of the person suffering the damage, but the damages recoverable in respect thereof shall be reduced to such extent as the court thinks just and equitable having regard to the claimant’s share in the responsibility for the damage …

Contributory Negligence Contributory negligence will reduce the damages payable by the defendant according to the extent to which the claimant’s own carelessness contributed to his or her injuries. Please note that contributory negligence is a defence that can be used for a range of torts and not just negligence.

The Courts Reluctance to Accept Volenti Revisited Since the Law Reform (Contributory Negligence) Act 1945, the courts have been reluctant to accept a defence of volenti preferring to apportion loss between the parties. Discussion: Why do you think the courts are often reluctant to accept volenti as a defence? Volenti is an all or nothing approach. Apportioning loss on the basis of contributory negligence is seen as a more fair approach.

Using the defence of Contributory Negligence In order for a defence of contributory negligence to succeed it must be proved that: The claimant failed to take care of his own safety in a way that at least partially caused his or her injuries and The claimant failed to recognise that he/she was risking his/her own safety even though the reasonable person would

Badger v Ministry of Defence [2006] The claimant had contracted lung cancer as a result of exposure to asbestos at work and died. His widow made a claim against his employer. The High Court awarded damages but reduced them by 20% because he had made his condition worse by smoking even though the health risks of smoking were widely known.

Badger v Ministry of Defence [2006] Mr Justice Stanley Burnton: Ultimately, the principle of contributory negligence is that a person has responsibility for his actions. He may choose to pursue or to continue a course of conduct that injures or risks injuring his own health; but if he does so, he bears responsibility for the consequences of his actions. The reduction that is just and equitable must take account of the relative blameworthiness of the parties' conduct. http://www.bailii.org/ew/cases/EWHC/QB/2005/2941.html

Limits on Contributory Negligence The courts have recognised that children are less to recognise risky conduct than adults. The standard of care for a rescuer is that of the reasonable rescuer rather than that of the reasonable person. In an emergency situation, the courts have accepted that a person may not have the time to take the best course of action.

Limits on Contributory Negligence: Activity Using a multimedia device or textbook, research the following cases: Gough v Thorns [1966] Morales v Eccleston [1991] Baker v TE Hopkins & Sons [1959] Jones v Boyce [1816]

Apportioning Blame There are two factors taken into account in apportioning blame. Causation: the extent to which the defendant’s own actions caused his/her own injuries. Culpability: the relative blameworthiness of the claimant and defendant for the claimant’s injuries. Stapley v Gypsum Mines Ltd [1953] http://www.bailii.org/uk/cases/UKHL/1953/4.html

Apportioning Blame In Froom v Butcher [1976], the Court of Appeal suggested the following reductions in damages awarded to a claimant in a car accident who failed to wear a seatbelt; If the claimant’s injuries would have been avoided altogether if a seatbelt had been worn: 25% reduction If the claimant would have received less severe injuries if a seat had been worn: 15% reduction If the claimant’s injuries would have been the same even if a seatbelt was worn: no reduction http://www.bailii.org/ew/cases/EWCA/Civ/1975/6.html

Activity: Considering Liability For the following three scenarios consider if the driver is liable for your injuries and, if so, whether your damages will be reduced because of your contributory negligence. Scenario One: You accept a lift home from a driver who you do not know is drunk. The car crashes through the negligence of the driver. Scenario Two: You accept a lift home from a driver who you know is drunk. The car crashes through the negligence of the driver. Scenario Three: You accept a lift home from a driver who you do not know is drunk although the reasonable person would have known. The car crashes through the negligence of the driver.

Activity: Apportioning Liability Scenario One: You accept a lift home from a driver who you do not know is drunk. The car crashes through the negligence of the driver. The driver is liable. No reduction in damages awarded. Scenario Two: You accept a lift home from a driver who you know is drunk. The car crashes through the negligence of the driver. The driver is liable but your damages awarded will be reduced (probably by about 25%). Scenario Three: You accept a lift home from a driver who you do not know is drunk although the reasonable person would have known. The car crashes through the negligence of the driver.

Ex Turpi Causa Non Oritur Actio This is Latin for: no action arises from a dishonourable claim. It is often referred to as ‘ex turpi’. This means that there is no liability in tort for injuries sustained in an unlawful course of action or immoral act. Such claims would be against public policy.

Activity: Ex Turpi Causa Non Oritur Actio Using a textbook or a multimedia device, research the following contrasting cases. Vellino v Chief Constable of Greater Manchester Police [2001] Revill v Newberry [1996]