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Defences - Tort Law UK
No wrong is done to the willing - 'Volenti non fit injuria'
A simple assumption dominates defence: if you consent to the harm that was done to you then you have no (legal) right to complain that it happened. This applies equally to accepting the risk of something happening and then not having the (legal) right to complain about it.
- Morris v Murray
Here C got absurdly drunk with D and then they both agreed to take a ride in D's plane which D would pilot. Shortly after taking off D crashed the plane - D died and C was injured. C sued D's estate.
Held: No claim because C accepted the risk of the plane being badly piloted when he got into the plane with D. Note: unlike in a Hedley Byrne case, D did not assure C that he would pilot the plane with a high degree of care and skill.
- ICI v Shatwell
C was injured as a result of an explosion at the defendant's quarry caused by D's employees' negligence. D's employees claimed against D based on their employer's vicarious liability for the negligence and a breach of statutory duty. D raised the defence of volenti non fit injuria since the employees had full knowledge of the risk and were acting against express instructions.
Held: in favour of D - volenti applied.
The employees acted in defiance of the employer's express instructions in full knowledge of the risks. Moreover, it was the employees who were under the statutory duty and not the employer; the employer implemented what was necessary according to the statutory regulations and could show that he had informed all his employees about them.
- Woolridge v Summer
During a horserace D's horse frightened C by meandering off its expected course. This caused C to try to save a nearby woman but in so doing he fell into the way of the horse and was knocked. C claimed D's jockey was negligent in the way he rode the horse and D raised the defence of volenti.
Held: in favour of D: no breach of duty - the jockey was not negligent. Obiter: Volenti would have failed because consent to the risk of injury is insufficient, C must have consented to the breach of duty and the risk that came with it.
- Reeves v Metropolitan Police Commissioner
C committed suicide in a prison cell. He had a history of suicide attempts and even tried to do it on the same day in the same cells.
If D has a duty to protect C from harming himself then naturally D cannot invoke the defence of volenti just because C technically consented to the harm which he inflicted upon himself. On top of this, a doctor had seen him and concluded that although he did not have a severe mental disorder he was a suicide risk. The police argued that he was sound of mind and so his voluntary actions broke the chain of causation.
Held: the police were negligent and could not raise volenti as a defence.
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Illegality - ex turpi causa non oritur actio
- Criminal Justice Act 2003, s 329
C cannot bring a civil claim against D if:
(5) The defendant did the act only because:
(a) He believed that the claimant:
(i) was about to commit an offence,
(ii) was in the course of committing an offence, or
(iii) had committed an offence immediately beforehand; and
(b) He believed that the act was necessary to
(i) defend himself or another person,
(ii) protect or recover property,
(iii) prevent the commission or continuation of an offence, or
(iv) apprehend, or secure the conviction, of the claimant after he had committed an offence;
... or was necessary to assist in achieving any of those things.
- Pitts v Hunt (almost the same facts as Morris v Murray but with a motorbike)
C and D got absurdly drunk and decided to take a ride on D's motorbike. D was underage to drive the motorbike he was on, had no insurance and had not paid tax for it. C encouraged D to drive dangerously, at one point deliberately swerving to scare a motorist. C & D collided with an oncoming car head on because they were driving full speed on the wrong side of the road! D died and C was left permanently disabled. D raised the defence of illegality.
Held: illegality allowed, no claim could be made by C against D.
- Revill v Newberry - (Proportionality Test Applied)
C was an elderly man who, after it was broken into and burgled several times, decided to sleep in his shed with a loaded shotgun. D tried to break into the shed but before he could enter C shot him through a hole in the shed door. D raised the defence of illegality.
Held: illegality could not be raised on the basis that statute precluded its use but C's damages were reduces by 66% under the Law Reform (Contributory Negligence) Act 1945.
- Vellino v CC of Greater Manchester
C was arrested but then managed to escape by jumping out of a second-floor window. In so doing he fractured his skull, suffered from brain damaged and was paralysed in all four limbs. C argued that after D had arrested him, he had a duty of care to prevent him from hurting himself. D raised the defence of illegality.
Held: Defence of illegality applied - it is a criminal offence to escape criminal arrest.
- Law Reform (Contributory Negligence) Act 1945
Sets out the partial defence of contributory negligence. s1(1) states that where C suffers as a result of partly his fault and partly that of D, his fault does not diminish his ability to make a claim against D.
All that a claimant has to show is that he is partly at fault for the extent of the harm he suffered.
- Jones v Livox Quarries Ltd
C jumped and then stood on the back of another employee's vehicle whilst at work. The driver was unaware of him standing there and it was against company rules to stand on the back of these vehicles. Another employee accidentally hit the vehicle C was standing on with the result that his legs were crushed and then had to be amputated.
Held: D was liable but C was 20% to blame under the Law Reform (Contributory Negligence) Act 1945.
- Froom v Butcher
Claimant was injured in a car accident because of D's negligence. C wasn't wearing his seat belt.
Held: Not wearing a seatbelt will result in a reduction in damages under the Law Reform (Contributory Negligence) Act 1945. The percentage of fault will depend on how much extra damage the evidence shows resulted from not wearing the belt.
- Gough v Thorns
C, a young girl, was hit by D's car upon trying to cross a road.
Held: age of the claimant is relevant when considering contributory negligence - here the claimant acted reasonably for a 13 year old and so contributory negligence could not be made out for the purposes of the Law Reform (Contributory Negligence) Act 1945.
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Exclusion of Liability
The general rule is that a contractual term excluding or limiting liability in tort will succeed against a claimant.
- UCTA 1977 ss 1-2 & 11
- 2(1) a contractual term that tries to limit or exclude a business's liability in negligence for death or personal injury is doomed to fail.
- 2(2) a contractual term that does not try to limit or exclude liability for death or personal injury but does try to exclude or limit liability for other damage, like economic loss or property damage, will be invalid if the courts deem it to be unreasonable.
- White v Blackmore 
C was killed at an old-car race due to the organiser's negligent set up of some side-ropes. At the time of the accident he was waiting for his next race. He had signed a competitors list containing an exclusion clause and there was a warning sign which had stated that the organisers accepted no liability for any injury - including death - regardless of how it was caused. D raised the defence of volenti and exclusion of liability.
Held: Volenti could not apply. C had not accepted the risk of negligently set up ropes - only of the inherent risks of participating in an (adequately organised) old-car race. D did exclude liability, however, and so no claim could be made out.