Defences

Question 1

What are the three main defences available in negligence claims?

Answer 1

Consent (voluntary assumption of risk), contributory negligence, and illegality (ex turpi causa non oritur actio). Consent and illegality are complete defences (claimant gets nothing), while contributory negligence is a partial defence (claimant’s damages are reduced).

Question 2

What is the effect of a complete defence versus a partial defence?

Answer 2

A complete defence means the defendant pays nothing to the claimant - their claim is entirely defeated. A partial defence means the claimant still recovers damages, but the amount is reduced to reflect their share of responsibility.

Question 3

What are the two requirements for the defence of consent to succeed?

Answer 3

(1) The claimant had full knowledge of the nature and extent of the risk, AND (2) the claimant willingly consented to accept the risk of being injured due to the defendant’s negligence.

Question 4

Is it enough for consent that the claimant simply knew a risk existed?

Answer 4

No. The claimant must have had FULL knowledge of both the nature AND extent of the risk. Simply knowing a risk exists is not sufficient.

Question 5

What does the phrase “sciens is not volens” mean?

Answer 5

It means “knowledge is not consent.” Just because someone knows about a risk doesn’t mean they have consented to it. The defendant must prove both knowledge AND willing acceptance of the risk.

Question 6

What was the outcome in Dann v Hamilton regarding consent?

Answer 6

The defence of consent failed. Although the claimant knew the driver had been drinking and there was a risk of careless driving, this knowledge alone was not sufficient to imply consent to the risk of injury.

Question 7

What was the outcome in Morris v Murray regarding consent?

Answer 7

The defence of consent succeeded. The pilot’s drunkenness was so extreme and glaring that the claimant must have realised how drunk he was and thereby implicitly waived his right to damages by going on the flight.

Question 8

What does Section 149 of the Road Traffic Act 1988 provide regarding consent?

Answer 8

It provides that any acceptance of risk by a passenger in a motor vehicle is invalid where insurance for passengers is compulsory. The defence of consent/volenti cannot be used in motor vehicle cases.

Question 9

Why does the defence of consent rarely succeed against employees?

Answer 9

Because employees act under a duty and have no real freedom of choice when carrying out dangerous tasks requested by their employer. If they refuse, they risk losing their job. Economic and other pressures make it unjust to say they ran the risk freely and willingly.

Question 10

What are the three requirements for rescuers NOT to be considered as having consented to risk?

Answer 10

(1) They were acting to rescue persons or property endangered by the defendant’s negligence, AND

(2) they were acting under a compelling legal, social or moral duty, AND

(3) their conduct was reasonable and a natural and probable consequence of the defendant’s negligence.

Question 11

Do the rules on rescuers apply only to professional rescuers like police or firefighters?

Answer 11

No. The rules apply equally to professional rescuers and lay rescuers. The case of Haynes v Harwood involved a police constable but the principle applies to any rescuer.

Question 12

What are the two elements of contributory negligence?

Answer 12

(1) Carelessness on the claimant’s part, AND (2) that carelessness has contributed to the claimant’s damage.

Question 13

What statute governs contributory negligence?

Answer 13

The Law Reform (Contributory Negligence) Act 1945.

Question 14

What does Section 1(1) of the 1945 Act provide?

Answer 14

Where a person suffers damage partly from their own fault and partly from another’s fault: (a) the claim is not defeated, but (b) damages are reduced to the extent the court thinks just and equitable having regard to the claimant’s share in responsibility for the damage.

Question 15

How does the court calculate damages when there’s contributory negligence?

Answer 15

The court first calculates the full amount of damages that would have been payable without contributory negligence. Then it reduces that amount by an appropriate percentage to reflect the claimant’s share of responsibility.

Question 16

What two factors does the court consider when assessing contributory negligence?

Answer 16

(1) Culpability - the relative blameworthiness of the parties, and (2) Causation - the extent to which the claimant’s carelessness caused or contributed to the loss suffered.

Question 17

Does the claimant need to have contributed to the accident itself for contributory negligence to apply?

Answer 17

No. The claimant only needs to have contributed to the DAMAGE/LOSS they suffered, not necessarily to the accident. The relevant issue is who caused the damage, not who caused the accident.

Question 18

Give an example where contributory negligence applies even though the claimant didn’t cause the accident.

Answer 18

A claimant driving carefully is hit by a negligent defendant. The accident is entirely the defendant’s fault. But if the claimant wasn’t wearing a seatbelt and this contributed to their injuries, their damages will be reduced for contributory negligence.

Question 19

What are the percentage reductions from Froom v Butcher for failure to wear a seatbelt?

Answer 19

25% if injuries would have been avoided with a seatbelt; 15% if injuries would have been less severe with a seatbelt; 0% if a seatbelt would have made no difference to the injuries.

Question 20

What must the defendant establish to reduce damages for failure to wear a seatbelt?

Answer 20

A causal link between the claimant’s failure to wear a seatbelt and the loss suffered - i.e., the failure must have caused or contributed to the injuries.

Question 21

What tariff applies for failure to wear crash helmets on motorcycles?

Answer 21

The same tariff as for seatbelts from Froom v Butcher (25%, 15%, or 0% depending on the causal connection between lack of helmet and injuries).

Question 22

Can passengers who accept lifts from drunk drivers have their damages reduced?

Answer 22

Yes. Passengers who know the driver is drunk can expect damages to be reduced if injured in an accident caused by the driver’s intoxication.

Question 23

Can a drunk passenger avoid contributory negligence by saying they were too drunk to notice the driver was drunk?

Answer 23

No. Self-induced intoxication cannot be used as an excuse. If the passenger knew they would be driven home drunk after drinking together, this is sufficient (Owens v Brimmell).

Question 24

What is the test for whether the claimant has been contributorily negligent?

Answer 24

Whether the claimant failed to take reasonable care for their own safety. Their behaviour is measured against that of an ordinary reasonable person in the circumstances.

Question 25

Is there a minimum age below which a child cannot be contributorily negligent?

Answer 25

No fixed minimum age, but the older the child, the more likely a finding of contributory negligence. Very young children are most unlikely to be found contributorily negligent.

Question 26

What test applies to decide if a child has been contributorily negligent?

Answer 26

Whether an ordinary child of the claimant's age would have taken more care for their safety than the claimant did. The child must be of such an age as reasonably to be expected to take precautions, and must be "blameworthy."

Question 27

What was the outcome in Gough v Thorne regarding the 13½-year-old girl?

Answer 27

No contributory negligence. She had come up to the standard of an ordinary child of 13½ in the circumstances. (Note: an adult in the same situation would likely have been found contributorily negligent.)

Question 28

If a child is injured partly due to the defendant's negligence and partly due to the parent's negligence, is the child's recovery reduced?

Answer 28

No. The child is not "identified" with the negligence of their parent. The child's damages cannot be reduced on account of parental negligence. (The defendant could seek contribution from the parent under the Civil Liability (Contribution) Act 1978.)

Question 29

What standard applies when assessing whether a rescuer has been contributorily negligent?

Answer 29

A rescuer is judged against the standard of a reasonable rescuer. Allowance is made for the emergency situation in which rescuers find themselves.

Question 30

When will a rescuer be found contributorily negligent?

Answer 30

Only if the rescuer showed a "wholly unreasonable disregard for his or her own safety." Such cases are rare as courts are reluctant to criticize rescuers' conduct.

Question 31

What was the outcome in Baker v TE Hopkins regarding the doctor who died attempting a rescue?

Answer 31

No contributory negligence. The defendants were liable for the doctor's death with no reduction for contributory negligence.

Question 32

What factors will the court consider when deciding if an employee was contributorily negligent?

Answer 32

All relevant circumstances, including whether the work was noisy, repetitive, or dull - factors that could lead a worker to take less care for their own safety.

Question 33

What did Lord Atkin say in Caswell v Powell Duffryn about employee contributory negligence?

Answer 33

The care expected from a workman in a factory or mine may differ from that expected of an ordinary person not continually exposed to the noise, strain, and manifold risks of such environments.

Question 34

Will courts be quicker or slower to find contributory negligence against factory/mine workers compared to office workers?

Answer 34

Slower. Courts are more reluctant to find contributory negligence against workers in dangerous, noisy, or repetitive environments than against office workers.

Question 35

What are "dilemma cases" in the context of contributory negligence?

Answer 35

Cases where the defendant's negligence puts the claimant in imminent danger, compelling them to take action to save themselves. The issue is whether the defendant can argue contributory negligence when the claimant is injured while trying to escape.

Question 36

What principle comes from Jones v Boyce regarding dilemma cases?

Answer 36

A claimant who acts "in the agony of the moment" due to the defendant's negligence will not be contributorily negligent if their actions were a reasonable response to the danger, even if hindsight shows another course would have been safer.

Question 37

What was the outcome in Sayers v Harlow UDC regarding the trapped woman?

Answer 37

Damages were reduced by 25% for contributory negligence. Her attempt to climb over the door by standing on the toilet roll was not a reasonable response to being trapped.

Question 38

What does "ex turpi causa non oritur actio" mean?

Answer 38

"No action arises from a disgraceful cause." It's the Latin maxim for the defence of illegality.

Question 39

Is illegality a complete or partial defence?

Answer 39

Complete defence. It prevents the claimant recovering anything at all for the defendant's breach of duty.

Question 40

What is required for the defence of illegality to succeed?

Answer 40

There must be a very close connection between the illegal activity of the claimant and the injury they suffer, so that the damage arises directly out of the illegal activity in such a way that it would be contrary to public policy to allow the claimant a remedy.

Question 41

Give an example where illegality would succeed as a defence.

Answer 41

Karl and Ben are burgling a house. Karl negligently blows the lock off a safe, injuring Ben. Karl can successfully raise illegality as a defence to Ben's claim.

Question 42

What was the outcome in Ashton v Turner?

Answer 42

The defence of illegality applied. The claimant and defendant were escaping from a burglary they had committed when the defendant's negligent driving caused a crash injuring the claimant.

Question 43

What was the outcome in Pitts v Hunt?

Answer 43

The defence of illegality succeeded. The claimant's claim failed because the action arose directly ex turpi causa - the reckless driving that caused the injuries was an inherent part of their joint criminal enterprise.

Question 44

In the example of Adriana parking illegally and Janet crashing into her car, would illegality succeed?

Answer 44

No. The requirements are not satisfied. There is insufficient connection between the parking offense and the damage. The damage didn't arise directly from the illegal activity.

Question 45

Why does the defence of consent rarely succeed in practice?

Answer 45

Because the courts have the power to reduce damages under contributory negligence, which is regarded as fairer than denying a claimant any remedy whatsoever against a negligent defendant. The requirements for consent are also very stringent.

Question 46

What must the claimant prove to establish all elements of negligence before defences are considered?

Answer 46

The claimant must prove: (1) duty of care, (2) breach of duty, and (3) causation of damage. Only if all three are established do defences become relevant.

Question 47

If the defendant successfully raises the defence of consent, what does the claimant recover?

Answer 47

Nothing. Consent is a complete defence, so the defendant avoids paying any compensation to the claimant.

Question 48

If the defendant successfully raises the defence of illegality, what does the claimant recover?

Answer 48

Nothing. Illegality is a complete defence, so the claimant receives no compensation.

Question 49

If the defendant successfully raises contributory negligence, what happens to the claimant's damages?

Answer 49

The damages are reduced by a percentage that the court thinks just and equitable, having regard to the claimant's share in responsibility for the damage. The claimant still recovers something, just less than the full amount.

Question 50

In Reeves v Metropolitan Police Commissioner, what percentage reduction was applied?

Answer 50

50%. The deceased who hanged himself while in police custody was found 50% to blame, so only 50% of damages were recoverable.

Question 51

What is the key difference between "knowledge of risk" and "consent to risk"?

Answer 51

Knowledge means the claimant was aware of the risk. Consent means the claimant willingly agreed to accept that risk. Knowledge alone is never enough - there must also be willing acceptance.

Question 52

Why is Morris v Murray different from Dann v Hamilton even though both involved drunk drivers?

Answer 52

In Morris v Murray, the pilot's drunkenness was so extreme and glaring that consent could be implied. In Dann v Hamilton, while the driver had been drinking, it wasn't extreme enough to say knowledge implied consent. Also, Section 149 Road Traffic Act now prevents consent being used in motor vehicle cases.

Question 53

Can an employer ever successfully use the consent defence against an injured employee?

Answer 53

Rarely. The case of Smith v Baker shows that just because an employee continued to work knowing the risks doesn't mean they consented in law. Employees lack real freedom of choice due to economic pressure.

Question 54

What is the moral compulsion principle regarding rescuers?

Answer 54

Courts take the view that rescuers often act under moral compulsion - whether acting immediately/instinctively or after reflection. This means they don't act voluntarily enough for consent to apply.

Question 55

Can contributory negligence apply even where the defendant is solely responsible for the accident?

Answer 55

Yes. The partial defence can apply even when the defendant caused the entire accident, as long as the claimant's carelessness contributed to their damage/injuries (e.g., not wearing a seatbelt).

Question 56

What happens if wearing a seatbelt would have made absolutely no difference to the injuries?

Answer 56

0% reduction. There must be a causal link between the failure to wear the seatbelt and the injuries suffered. If it made no difference, there's no reduction.

Question 57

Does the Froom v Butcher tariff apply before or after seatbelts became compulsory?

Answer 57

The case predates compulsory seatbelt laws, but the tariff still applies. Courts took

Question 58

the claimant's carelessness contributed to their damage/injuries (e.g., not wearing a seatbelt).

Question 59

Does the Froom v Butcher tariff apply before or after seatbelts became compulsory?

Answer 59

The case predates compulsory seatbelt laws, but the tariff still applies. Courts took the view that failing to wear a seatbelt could be contributory negligence even before it was legally required.

Question 60

What must be proven for crash helmet cases to result in reduced damages?

Answer 60

The same as for seatbelts - a causal link between the lack of crash helmet and the claimant's injuries. If the injuries were to the leg, not the head, there would be no reduction (as shown in sample question 2).

Question 61

If a claimant is injured while a passenger with a drunk driver, when will their damages be reduced?

Answer 61

When they knew (or should have known) the driver was drunk. This applies even if the passenger was too drunk to appreciate it at the time, if they knew they would be driven home drunk when they went out drinking together.

Question 62

What is the test for assessing contributory negligence in children compared to adults?

Answer 62

Children are judged against the standard of an ordinary child of their age. Adults are judged against the standard of a reasonable adult. The younger the child, the less likely a finding of contributory negligence.

Question 63

Would a reasonable adult in Gough v Thorne's situation have been contributorily negligent?

Answer 63

Yes, likely. A reasonable adult pedestrian with fully developed road sense would have leaned forward to check for overtaking vehicles before stepping out from behind the lorry.

Question 64

Can a parent's negligence reduce their child's damages?

Answer 64

No. The child is not identified with parental negligence. However, the defendant could seek contribution from the negligent parent under the Civil Liability (Contribution) Act 1978.

Question 65

In Baker v TE Hopkins, were the defendants liable only for their employees' deaths or also for the rescuer's death?

Answer 65

Both. The defendants were liable for the death of both their employees who went down the well AND the doctor who attempted to rescue them.

Question 66

What is the key principle about rescuer contributory negligence from Baker v TE Hopkins?

Answer 66

Rescuers are judged by the standard of a reasonable rescuer (with allowance for the emergency), and only 'wholly unreasonable disregard for safety' will result in a finding of contributory negligence.

Question 67

Why are courts slower to find contributory negligence against factory/mine workers?

Answer 67

Because the care expected varies with circumstances. Workers continually exposed to noise, strain, and risks in dangerous environments may take less care than office workers, and this is taken into account.

Question 68

What was reasonable in Jones v Boyce that would not have been reasonable in hindsight?

Answer 68

Jumping off the coach to save himself was reasonable 'in the agony of the moment' given the perilous situation, even though with hindsight he would have been safer staying on the coach.

Question 69

Why was there contributory negligence in Sayers v Harlow UDC but not in Jones v Boyce?

Answer 69

In Jones v Boyce, the claimant faced a dangerous situation and his response was reasonable. In Sayers, standing on a toilet roll to escape a locked toilet was not a reasonable response to the danger.

Question 70

Give an example of illegal activity where illegality would NOT succeed as a defence.

Answer 70

Adriana parks in a restricted zone (traffic offense), then Janet carelessly crashes into her car. The connection between the illegal parking and the damage is too remote - the damage didn't arise directly from the illegal activity.

Question 71

What made the illegality defence succeed in Pitts v Hunt?

Answer 71

The very close connection: the reckless driving (which caused the injuries) was an inherent part of their joint criminal enterprise. The claimant encouraged the reckless driving that injured him.

Question 72

What additional factor in Pitts v Hunt made the claimant's case particularly weak?

Answer 72

The claimant knew the rider had no license, was uninsured, and both had been drinking. The claimant also encouraged the reckless driving manner.

Question 73

Can liability in tort be excluded by notices or contractual terms?

Answer 73

Sometimes. The extent to which exclusion may be successful is considered in other chapters (Chapter 4 on pure economic loss and Chapter 10 on Occupiers' Liability Acts).

Question 74

What is the order of analysis in a negligence claim regarding defences?

Answer 74

First establish all elements of negligence (duty, breach, causation). Only if all are proven, then consider defences. Defences are the last argument for the defendant.

Question 75

Which defences are complete and which are partial?

Answer 75

Complete defences: consent and illegality (claimant gets nothing). Partial defence: contributory negligence (claimant's damages are reduced but not eliminated).

Question 76

In the sample question with the 8-year-old child and seatbelt, why couldn't consent apply?

Answer 76

Because consent only applies against the claimant (the child), not the parent. The parent cannot consent on behalf of the child to the risk of injury.

Question 77

In the sample question with the 8-year-old, why couldn't the father's contributory negligence reduce the child's damages?

Answer 77

Because the child is not identified with the parent's negligence. Only the child's own contributory negligence can reduce the child's damages.

Question 78

In the motorbike sample question, why was jumping off not contributory negligent?

Answer 78

Because the claimant acted 'in the agony of the moment' in response to the defendant's negligence, and the action was a reasonable response to the perceived danger.

Question 79

In the motorbike sample question, why didn't the lack of crash helmet reduce damages?

Answer 79

Because there was no causal link - the claimant suffered a broken leg (not a head injury), so the lack of helmet didn't contribute to the actual injury suffered.

Question 80

Why can't Section 149 Road Traffic Act 1988 be used in the motorbike sample question to defeat illegality?

Answer 80

Section 149 only prevents the use of the CONSENT defence in motor vehicle cases. It doesn't affect illegality or contributory negligence defences.

Question 81

What was the correct answer in the motorbike sample question and why?

Answer 81

Option B - contributory negligence could apply IF it can be proven the claimant knew the defendant was intoxicated. Knowledge of the driver's intoxication + accepting a lift = failure to take reasonable care for own safety.

Question 82

What are the learning outcomes for this chapter according to the SQE1 syllabus?

Answer 82

To apply core legal principles at the level of a competent newly qualified solicitor regarding: (1) defence of consent, (2) defence of illegality, and (3) defence of contributory negligence to realistic client-based problems.