1. Defences and shared liability Unit 88
Negligence
Defences and shared liability
Unit 88

2. Elements of negligence
The defendant owed the claimant a duty of care
The defendant breached the duty of care
The claimant suffered damage as a result of the breach (=factual causation).
Legal causation
For a negligence claim to succeed, there are four essential elements. What are they?
The defendant owed the claimant a duty of care
The defendant breached the duty of care
The claimant suffered damage as a result of the breach (=factual causation).
Legal causation
They must prove all these elements on a balance of probabilities
If a defendant is accused of negligence, the first step is for him to consider each of these elements. If he can show on a BOP that any of them are not established, he is not liable in negligence.

3. Inferring negligence
Scott v London & St Katherine's Docks (1865): the plaintiff was injured after being hit by six bags of sugar, as he was stood outside the defendant's warehouse.
The court may infer negligence under the principle of res ipsa loquitur (“the thing speaks for itself”), when:
the thing which caused the damage was wholly under the control of the defendant
the accident which caused the damage complained of would not have happened unless someone had been negligent
However in some cases the requirement to prove the breach of duty may be relaxed.
This happens in cases where the claimant suffers an injury but cannot prove exactly how the defendant breached his duty of care.
For example in Scott v London & St Katherine's Docks (1865): the plaintiff was injured after being hit by six bags of sugar, which fell from the defendant's warehouse.
Given that bags of sugar do not usually fall from the sky, the circumstances suggest a breach, but the claimant can’t explain exactly what happened.
In this situation,
The court may infer negligence under the principle of res ipsa loquitur (“the thing speaks for itself”), provided that:
the thing which caused the damage was wholly under the control of the defendant
the accident which caused the damage complained of would not have happened unless someone had been negligent

4. i) Defences
If all the elements are established, there are syill certain defences which can be used to defend a negligence claim.
These are complete defences > if they are proved, the claim will fail.

5. 1. Absence of legal causation
Remoteness of damage
The consequences of the defendant's breach were so far removed from it as to have been unforeseeable for the defendant at the time the action occurred.
The kind of damage suffered must have been reasonably foreseeable.
Nonetheless D is fully liable if the damage was more serious than could have been foreseen
the “egg-shell skull rule”
There is factual causation (the claimant would not have suffered injury but for the original defendant's breach of the duty of care)
The consequences of the negligent action were so far removed from it as to have been unforeseeable for the defendant at the time the action occurred.
The kind of damage suffered must have been reasonably foreseeable.
Nonetheless D is fully liable if the extent of the damage was not foreseeable – another way of saying that is that D is fully liable if the damage was more serious than could have been foreseen
This has led to the the “egg-shell skull rule”? Legal principle which means that if the D has an existing medical condition which means that the effect of D’s action had much more serious consequences than would notmally be the case (eg a very thin skull in a car accident), D remains liable for the full extent of the damage.

6. 1. Absence of legal causation
ii) Novus actus interveniens
A subsequent act breaks the chain of causation
An act of a third party
The second is Novus actus interveniens (intervene iens)
A subsequent act breaks the chain of causation
act breaks the chain of causation

7. Knightley v Johns & Ors [1982]
The defendant, Mr Johns, negligently caused a crash on a dangerous bend in a one-way tunnel.
The police inspector at the scene of the accident forgot to close the tunnel to oncoming traffic as he should have done in accordance with regulations.
The police inspector ordered the claimant, a police officer, to ride back on his motorcycle against the flow of traffic in order to close the tunnel.
The officer was injured in a collision with an oncoming vehicle.
Is Mr Johns liable for the officer’s injuries?
FACTUAL CAUSATION > but for?
NO – the police inspectors own negligent acts in failing to close the tunnel and in sending the officer back against the flow of traffic broke the chain of causation (

8. 1. Absence of legal causation
ii) Novus actus interveniens
A subsequent act breaks the chain of causation
An act of a third party
An act of the claimant
However, in practice, it is rare for a court to find that a NAI entirely absolves the original D of liability – more likely that they will approtion the liability between the two defendnats.
A NAI can also be An act of the claimant:
e.g. John has an accident at work caused by his employers negligence which makes him blind.
Six months later he decides to drive his car on the motorway and has an accident. Is his employer liable?
But again we will see that this type of situation is more likley to be dealt with using contributiry negligence, rather than by absolving the original D of all liability.

9. 2. Consent Volenti non fit injuria applies when there is:
a voluntary agreement to be harmed or to assume risk
made in full knowledge of the nature and extent of the risk.
If the agreement is not entirely free and voluntary, this defence cannot apply
sciens is non volent
This brings uus onto Volenti non fit injuria
( a voluntary assumption of risk )
This means that the claimant consented to the injury or (more usually) to the risk of being injured
It requires
a voluntary agreement,
made in full knowledge of the nature and extent of the risk.
Case on sheet
Glaringly – obviously ++ (criant)
He was drunk but still knew what he was doing
Pilot’s obvious and extreme drunkenness
PLANE – accepting a lift from a drunken pilot is seen as more dangerous than accepting a lift with a drunken car driver
(car drivers – policy 1972/1988 RTA – in a sit where driver should have insurance, he has liability for passengers – BUT could be contributory negligence)

10. Morris v. Murray [1991]
The claimant and defendant had been drinking all day. The defendant had consumed the equivalent of 17 whiskeys.
The defendant, who had a pilot licence and a light aircraft, suggested that they took the aircraft for a flight.
The claimant agreed and drove them both to the airfield.
They started the engine and the defendant took off but crashed shortly after.
The defendant was killed and the claimant was seriously injured.
In an action for negligence, the defendant’s estate raised the defence of volenti non fit injuria.
Glaringly – obvious ++ (criant) that there was a significant risk and C accepted risk by driving to airfield and helping prepare the plane
He was drunk but still knew what he was doing
Pilot’s obvious and extreme drunkenness
PLANE – accepting a lift from a drunken pilot is seen as more dangerous than accepting a lift with a drunken car driver
(car drivers – policy 1972/1988 RTA – in a sit where driver should have insurance, he has liability for passengers – BUT could be contributory negligence)

11. 3. Necessity
D must have acted as a reasonable person would have done to avoid a real and imminent danger.
There is also a defence of necessity

12. 4. Illegality Ex turpi causa non oritur actio
The claimant cannot recover compensation for loss which he has suffered in consequence of his own criminal act
An a defence usually reduced to « ex turpi »
NOT always for example in Delaney v Pickett (2011) – D and C transporting a large quantity of cannabis when D negligently lost control of the van > defence not applicable, damage not caused by criminal act
Hounga v Allen (2014) not a sufficiently close connection between tort and claim, weighing up all the relevant policy arguments not just to apply the defence (illegal immigrant brought in as a au pair/maid whose emplyer treated her very badly)

13. 5. Contributory negligence
Liability is shared between D and C.
The burden of proof is on D to demonstrate:
C failed to exercise reasonable care in the circumstances to ensure his own safety
The failure to take care was a contributory cause of the damage suffered
Damages are reduced in proportion to the extent that C contributed to his own harm.
One aspect of this is the doctrine of Contributory negligence
What is this? Liability is shared between D and C.
The burden of proof is on D to demonstrate:
C failed to take proper care in the circumstances to ensure his own safety
The failure to take care was a contributory cause of the damage suffered
What happens when teh court accepts that there is CN?
Damages are reduced in proportion to the extent that C contributed to his own harm.
In the past the complete defences were used quite often.
Today courts are reluctant to use the complete defences.
Much more likely to fnd contributory negligence.
Why?
Fairer – in many situations where a full defence could apply, there generally there is some responsibility on both sides

14. ii) Multiple tortfeasors
The second aspect of approtionment of liability is when there are multiple tortfeasors
There are different ways this can occur
Joint liability: participants acted together to commit the tort “a concerted action to a common end” – each TF is liable for the entire damage RARE
Several liability: different damage is caused by different TFs – the liability of each is separate and distinct
Joint and several liability: Multiple TFs contributed to the damage. C may pursue an obligation against all or any of the TFs. If one TF pays the full damages, he may then pursue the other TF/s for a contribution (in proportion to their liability) .
JOINT TORTFEASORS MEANS THIS USUALLY

15. Proprtionate liability
Independent tortfeasors: two or more parties cause different harms to the claimant
Each defendant is proportionately liable
= liable to C only for that part of the damage (%) which is attributable to them.
Independent tortfeasors: two or more parties cause different harms to the claimant
A car is hit by two negligent drivers, the first one only causes damage to the car, the second one causes an injury to the claimant
Proportionately liable
= liable to C only for that part of the damage (%) which is attributable to each of them.

16. Joint and several liability
Joint tortfeasors: act with the same common goal and cause the same damage
Several concurrent tortfeasors: the actions of two or more separate defendants happened independently but contributed to the same harm
= Jointly and severally liable
Each defendant is liable to C for the full amount of the damage
If one defendant pays, he may then pursue the other defendants for a contribution.
Joint tortfeasors > act with the same common goal and cause the same damage , can be acted together with common purpose to commit the tort
Several concurrent tortfeasors: the actions of two or more separate defendants happened independently but contributed to the same harm
if a pedestrian, C, is injured by a collision between two cars whose drivers were both driving negligently, and the extent of C’s injuries are so severe that it is impossible to say which car/driver caused which part of C’s injury
Jointly and severally liable
Each defendant is liable to C for the full amount of the damage > If two D’s contributed to the damage, but one defendnat is bankrupt > C can pursue the other and get 100% of the damages he is entitled to from the solvent D
If one defendant pays, he may then pursue the other defendants for a contribution (in proportion to their liability) .