what are the 3 main defences in negligence?
- illegality (ex turpi causa)
- contributory negligence
- consent (voluntary acceptance of consequence)
what is the ex turpi causa maxim?
the illegal or wrongful nature of C’s conduct may bar their claim in tort
what is the root of the illegality defence? (incl. case)
public policy - ‘no court will lend its aid to a man who founds his cause of action upon an immoral or illegal act (Holman v Johnson, Lord Mansfield)
what is required to run the illegality defence? (incl. case)
National Coal Board v England - D must establish a causal connection between (i) C’s wrongful conduct and (ii) the harm suffered by C
illegality and judicial discretion? (incl. case)
Pitts v Hunt (Dillon LJ) - even though C was engaged in illegal activity which brought about their injury, it does not automatically bring it about that his claim for damages because of D’s negligence must be dismissed
what is the UK conception of the illegality defence? (incl. case)
based on considerations of public policy e.g. compensating C would be ‘shocking to the public conscience’ or send out an undesirable signal to criminals and other wrongdoers (Kirkham v Chief Constable of Greater Manchester Police)
what is the Australian conception of illegality?
C’s participation in criminality or wrongdoing makes it impossible for judges to specify a standard of care (Jackson v Harrison)
HL criticism of the scope of illegality? (incl. case)
- Tinsley v Milligan - HL disapproved the ‘public conscience’/’shock’ test
- Lord Goff: the ‘shock’ test amounts to saying that judges have a discretion to refuse relief
joint illegal activity? (incl. case)
- Pitts v Hunt - no duty of care will be recognised between participants to a joint criminal enterprise if the enterprise is such that it would be impossible or not feasible to ask how much care the reasonable person in D’s position would have taken in the circumstances.
- Beldam LJ: to compensate C would be at odds with Parliament’s intentions in enacting road traffic legislation (policy-based reasoning)
can C sue their own victim? (incl. case)
- Revill v Newsbury - yes
- C tried to break into D’s shed; D used a shotgun to defend himself
- damages awarded to C; sum awarded reduced by 2/3
academic commentary: response to Revill (incl. quote)
- Weir - the authority of the Pitts decision was ‘dismissed’ - it caused an imbalance as C can sue their victim (Revill), but not their accomplice (Pitts)
- ‘Many more decisions like this and the Court of Appeal will forfeit the respect of lawyer and lay[person] alike’
example of a case in which illegality was relied upon successfully
- Clunis v Camden and Islington Health Authority - C was found guilty of manslaughter and sued D in negligence for lack of psychiatric support after being discharged from hospital.
- illegal act (manslaughter) was found and C knew or could be presumed to know that his conduct was wrongful
- policy aspect - deterring criminal acts
principle of consistency? (incl. case)
- Gray v Thames Trains Ltd - illegality defence applied; the civil law must be applied in ways that are consistent with any criminal sentence already imposed
- Canadian case law has identified consistency as the sole justification for the illegality defence (Hall v Hebert)
other than consistency, what are the different justifications for the illegality defence? (incl. case and 2 academics)
- deterrence (Clunis v Camden and Islington Health Authority)
- retribution (‘just deserts’)
- maintaining the integrity of the legal system (Weir)
- outlawry - C is effectively put beyond the law’s protection (Hervey)
the HL on justifications for the illegality defence? (incl. case)
different reasons could be invoked in different circumstances (Lord Hoffmann, Gray v Thames Trains Ltd)
what is ‘turpitude’?
base or shameful’ baseness; vileness; depravity; wickedness
illegality and immorality? (incl 2 cases)
- Nayyar v Denton WIlde Sapte (Hamblen J) - ‘the principle of ex turpi causa can extend to immoral as well as illegal acts and may apply to improper conduct envincing serious moral turpitude’
- Safeway Stores Ltd v Twigger (Flaux J) - the maxim ex turpi causa ‘is not limited to criminal acts’; ‘there must be an element of moral turpitude or moral reprehensibility involved’
academic commentary: illegality and immorality
Gouldkamp - ‘the decisions in Nayyar and Safeway Stores have taken tort law in the wrong direction insofar as the maxim ex turpi causa is concerned’
‘Although the law of tort is not short of rules that suffer from obscurity in both justification and scope, the maxim ex turpi causa stands out as particularly problematic in these respects.’
what are some considerations relevant to the illegality defence? (incl. case)
Patel v Mirza (Lord Toulson):
1. ‘the underlying purpose of the prohibition which has been transgressed’
2. ‘public policies which may be rendered ineffective or less effective by denial of the claim’
3. application of the law with ‘a due sense of proportionality’
cases in which the Patel approach has been used
- Stoffel & Co v Grondona
- Henderson v Dorset Health University NHS Foundation Trust
what was the courts’ decision in Henderson?
- D successfully pleaded illegality
- SC declined to depart from the HL decision in Gray v Thames Trains and concluded that Clunis should not be overruled
academic commentary: illegality in the supreme court
- O’Sullivan - ‘presumably… in a novel case the court will move by incremental analogy from existing precedent, aided by Patel’s trio of considerations’
- although is still sceptical about this approach - ‘does listing considerations for and against, then somehow “weighing” them, actually provide much guidance in related but different fact patterns?’
what is the defence of consent? (incl. case)
Bowater v Rowley Regis Corporation - in order for D to rely on this defence, C must voluntarily agree to run the relevant risk(s)
knowledge in consent defence (incl. 3 cases)
- Woolridge v Sumner - C must have full knowledge of the relevant risks
- Smith v Austin Lifts - test of knowledge is objective
- Dixon v King - constructive knowledge (i.e. what C ought reasonably to have known) is not a sufficient basis on which to invoke the defence
