Defences

Question 1

Kirkham v CC of Greater Manchester

Answer 1

CAPACITY TO GIVE VALID CONSENT

Facts?
- C was prisoner in police custody who committed suicide.
Principle?
- Police argued volenti which failed as evidence that C was not of sound mind meant he did not have capacity to consent to risk associated with suicide.

Question 2

Reeves v Commissioner of Police for the Metropolis

Answer 2

CAPACITY TO GIVE VALID CONSENT

Facts?
- Again, suicide of prisoner in police station. Police aware he was suicide risk.
Principle?
- Ds could not argue violent as this was the very action they were required by their DOC to prevent.

Question 3

Morris v Murrary

Answer 3

FULL KNOWLEDGE OF THE RISKS

Facts?
- C accepted lift with a drunk pilot. 
- C was also drunk.
- Did he appreciate the danger?
Principle?
- C was not so drunk he was incapable of understanding nature/extent of risk - willingly embarked on flight knowing D was drunk and likely to be negligent.

• Also relevant to agreement to risk of injury - this was equivalent to ‘meddling with an unexploded bomb’.

Question 4

Nettleship v Weston

Answer 4

AGREEMENT TO RISK OF INJURY

Facts?
- Claimant was driving instructor who sued pupil for injuries caused by pupil’s negligent driving.

Principle?

• Fact he knew she was learner driver did not mean he consented to being injured by her.
• He asked her about insurance cover before agreeing to lessons - not consenting to risk of injury.

Question 5

Dann v Hamilton

Answer 5

Facts?

• Claimant accepted lift with someone she knew was drunk.
• No consent due to know knowledge of the risk of injury, but no implied agreement either unless risk so extreme it is equivalent to ‘meddling with an unexploded bomb’.
• Risk of injury must be so incredibly likely to materialise that by agreeing to take part int he activity, C consents to the risk.

Question 6

Ratcliffe v McConnell

Answer 6

Facts?

• Drunken student dived into swimming pool having not checked its depth.
• Implied agreement to run risk of injury established here.

Question 7

Bowater v Rowley Regis Corporation

Answer 7

AGREEMENT TO RISK MUST BE VOLUNTARY

• C is not willing unless in a position to choose freely - freedom of choice predicates both full knowledge of the circumstances AND absence of any feeling of constraint (freedom of will).

Question 8

ICI v Shatwell

Answer 8

• Employee held to have consented voluntarily to the risk of using shorter wires although regulations said to use longer wires.

Question 9

Hall v Brooklands Auto Racing Club

Answer 9

Facts?
- C injured while watching a race.
Principle?
- Claim failed because spectators consent to the risks attached with spectating a sport. Inherent to the sport.

Question 10

Smoldon v Whitworth

Answer 10

• Court said participants of sporting events consent to the normal risks of the game.

Question 11

Condon v Basi

Answer 11

Facts?
- Footballer held liable for breaking another player’s leg in foul tackle.

Principle?

• Defence of consent failed because D’s serious/dangerous foul tackle showed reckless disregard for C’s safety - C had not consented to the tackle.
• C unlikely to have consented to something outside the rules of the game.

Question 12

Baker v T.E. Hopkins & SOns

Answer 12

Facts?

• Baker held to be rescuer when he helped some workmen trapped in a mine.
• He was killed by the poisonous fumes in the mine.

Principle?

• He had the capacity and knowledge of nature and extent of risk.
• Agreement not voluntary though, acted out of compulsive desire to save life.

Question 13

Jones v Livox Quarries

Answer 13

CONTRIBUTORY NEGLIGENCE

Facts?
- C was riding on the tow bar of a vehicle involved in accident.

Principle?

• For finding of contributory negligence, there are three elements to establish.
  1. C failed to take reasonable steps for own safety.
  2. Failure contributed to C’s injury.
  3. Injury was within type of risk run by claimant.
• Also authority for injury being within risk run by C.
• C ran risk he would fall from vehicle if he rode in unsuitable position.
• Would not have bene contributorily negligent if struck by rock whilst on tow bar, as that was not the risk he was running - that would not be connected to why what he was doing was unreasonable.

Question 14

Froom v Butcher

Answer 14

Facts?
- Wearing of seatbelt not compulsory.

Principle?
- C contributorily negligent because it was imprudent not to wear one and failure to do so contributed to C’s injuries.

Question 15

Jones v Boyce

Answer 15

Facts?

• Runaway horse and carriage case.
• C jumped from it.

Principle?

• Not negligent.
• Reasonably believed coach was going to overturn so jumped from it and broke his leg.

Question 16

Sayers v Harlow

Answer 16

Facts?

• C got stuck in D’s toilet cubicle.
• Tried to escape through gap between door and ceiling and on her way down stood on toilet roll holder.
• Fell and injured herself.

Principle?
- Damages reduced by 25% - failed to take reasonable care by attempting to rely on unstable toilet roll.

Question 17

John James William Booth v Simon White

Answer 17

Facts?

• Both D and C had been drinking in pub.
• C consumed between 10-15 pints of lager.
• D offered C a lift, lost control, crashed and C suffered serious injury.

Principle?

• Although C not required to interrogate D as to how much he has drank, required to make assessment of driver considering whether to accept lift.
• In circumstances, given C’s intoxication, unable to make reliable assessment. No reduction for CN.

Question 18

Gough v Thorne

Answer 18

Facts?

• 13 year old girl hit by lorry driven by D when crossing road.
• Earlier driver indicated to her it was safe.

Principle?
- Taking into account her age, no CN.

Question 19

Jackson v Murray

Answer 19

Facts?
- 13 year old suffered serious injuries when she ran out from behind bus she alighted and was struck by D.

Principle?

• Held that she was main cause of accident.
• C and D found equally blameworthy in the end (after 90, then 70), so damages reduced by 50%.

Question 20

Ashton v Turner

Answer 20

• Compensation denied to passenger injured by his getaway driver after being involved in a burglary.

Question 21

Marsh v Pauline Clare (Chief Constable of Lancashire Constabulary)

Answer 21

• Crimes of knowingly participating in corruption/intentional handling of stolen cars - serious enough for defence of Ex Turpi to succeed.

Question 22

Pitts v Hunt

Answer 22

Facts?

• C and D had been drinking together, both very drunk.
• C rode on back of D’s motorbike encouraging reckless driving.

Principle?
- Defence successful in that C’s injury was caused directly by the illegal act - would have been an affront to public conscience to award claimant damages.

Question 23

Vellino v Chief Constable of Greater Manchester

Answer 23

Facts?

• Police arrived at C’s flat and arrested.
• C jumped from second floor window.
• Injured.

Principle?

• No DOC existed and in breaking away from custody, C committing crime anyway.
• Ex turpi would likely apply because C had to rely on his criminal act to file negligence claim.

Key features of the defence highlighted:

• Claimant’s claim is founded on his criminal/immoral act.
• Public policy principle - not for benefit of defendant.
• Criminal conduct must be sufficiently serious to merit application of the principle.

Question 24

Delaney v Pickett

Answer 24

Facts?

• C injured in accident due to D’s negligent driving.
• Found to be carrying large packet of cannabis which C and D were going to sell.

Principle?
- Ex turnip failed because C’s injury not caused BY his illegal act.

Question 25

Joyce v O'Brien

Answer 25

Facts? - C in back of D's van holding stolen ladders which prevented him closing for. - D's negligent driving meant C fell from vehicle and suffered serious head injury. Principle? - Ex turpi succeeded - C's head injuries caused by criminal act.

Question 26

Gray v Thames Trains

Answer 26

Facts? - C suffered loss due to Ladbroke rail crash. - Suffered PTSD and ended up stabbing total stranger. - Tried to claim loss of earnings. Principle? - Causal link - D's negligence train crash that caused him to stab stranger and have earnings taken away.