Defences to Negligence & Vicarious liability.
Defences to Negligence & Vicarious liability.
Volenti: volenti non fit injuria
This is a total defence to a negligence claim.
However the rules to which apply are complex:
Knowledge of the risk:
In the late 19th Century, it was seen that if you had any knowledge of the risks that you were exposing yourself to, and did so voluntarily, then you could not make a claim. This changed over the years, with the idea being that where the negligence of the Defendant increased the more the Plaintiff must have given express clear assent to the assumption of that risk before the incident. Mere knowledge of the risk is not enough, there must be a clear waiver.
*Dann v Hamilton [1939] 1 KB 509
The Plaintiff accepted a lift from the Defendant knowing that he was very intoxicated. The Defendant crashed causing the Plaintiff a lot of damage. She was said to have given clear consent because the dangers were very obvious.
Smith v Baker
The employee must have had knowledge of the risk and have agreed to undertake this risk
NB: this is now tempered by UCTA.
*Morris v Murray [1991] 2 QB 6
The Plaintiff got into an aeroplane with the Defendant. The Defendant had consumed an exceptionally large quantity of alcohol. They died in the ensuing crash. It was decided that the risks had been glaring, and as such he had agreed to waiver his rights.
*Wooldrige v Sumner
The Press photographer should have accepted the fact that the Jockey would have been more intent upon winning and stabilising his horse than whether he was going to crash into the crowd. The Plaintiff accepted the risks, which were inherent.
It has been shown that volenti is rarely used, it is usually contributory neg that will be used.
The authority marked * denotes that it was accepted as a case of implied assumption of the risk by conduct. Because of UCTA it is rare to find a case where it is a contractual acceptance of the risk. A good example would be an oil worker in the North Sea Oil Platforms. Are they really going accept a risk of negligence by their employer, even though the dangers and risks of worker there are glaring? No, it would ...
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It has been shown that volenti is rarely used, it is usually contributory neg that will be used.
The authority marked * denotes that it was accepted as a case of implied assumption of the risk by conduct. Because of UCTA it is rare to find a case where it is a contractual acceptance of the risk. A good example would be an oil worker in the North Sea Oil Platforms. Are they really going accept a risk of negligence by their employer, even though the dangers and risks of worker there are glaring? No, it would go to contributory negligence, and would be a very unlikely scenario.
illegality
A claim for injury due to negligence because of illegality will not necessarily fail because of the illegal acts of the Plaintiff, however, it is very likely. The courts will use policy to fail a case of illegality. There would be a public outcry to allow a criminal injured in the pursuit of his activities to claim. This is ex turpi causa non oritur actio, no right of action arises from a base cause, eg, on a contract founded on immoral consideration.
The other formulation in this area is simply that the courts are unable to set a standard of care. How to ask a 90 year old to ensure that her house is safe for the burglar to get in so that he doesn't injure himself? The court cannot, and will not do so.
Pitts v Hunt [1991] 2 QB 25
The Defendant and the Plaintiff had been drinking all day. They decided to go for a ride on a motor cycle, the Plaintiff as the pillion passenger. The Plaintiff knew that the Defendant was uninsured and unlicensed. He urged the Plaintiff to drive dangerously, and encouraged behaviour that was likely to kill or injure pedestrians. Eventually, due to the Defendant's negligence, they crashed, the Defendant killing himself and severely injuring the Plaintiff.
The court kicked out the case, but for varying reasons. Some cited turpi causa non oritur actio, and public policy, some cited the fact that no standard of care may be fixed.
Compare this to:
Saunders v Edwards [1987] 1 WLR 1116
The Defendant had colluded with the Plaintiff to undervalue the Defendant's flat, and raise the price of chattels included in the sale, so as to avoid stamp duty. However, the Defendant had misrepresented the flat, and so the Plaintiff sued him for fraudulent misrepresentation.
The Court of Appeal found that the two acts were separate, and the illegality against the Inland Revenue was not sufficient to bar the action against the misrepresentation.
Reeves v Commissioner of Police of the Metropolis [1998] 2 WLR 401
Plaintiff was deceased, his estate suing on his behalf. He committed suicide whilst at a police station it the cells. The Police put a defence of illegality, which was rejected, because that act was the very act that they owed a duty of care over.
Contributory Negligence.
This goes to damages only. However, it has been seen in the Australian high court that there cannot be a case of 100% contribution, though in the UK this has not been tested fully, but Lord Hoffman has implied that it can be 100%. It used to be pre 1945, all or nothing. However, Lord Denning (Denning LJ as he then was) said that all causation may now be taken notice of, which allows for flexibility and justice.
There is a fault element of both Plaintiff and Defendant. However, The Plaintiff need not owe any duty of care to the Defendant, but merely be at fault in his duty to himself.:
Nance v British Columbia Electrical [1951] AC 501:
The Plaintiff need not owe a duty of care to the Plaintiff but must show that the Defendant owed a duty of care to him. If the Plaintiff merely contributed through failing to take care of himself, and is damaged also by the negligence of the Defendant then the case will succeed.
Froome v Butcher [1976] QB 286
The Plaintiff suffered injury because of the negligent driving of the Defendant. However, his injuries were exacerbated by the fact that he was not wearing a seat belt.
Lord Denning apportioned the blame, but said that the Defendant must take the majority of the blame.
Jones v Livox [1952] 2 QB 608
The Plaintiff had been riding on the bumper of a tractor, against the express directions of his employer. He then had a crash with a dumpster, because of the negligence of the driver of the dumpster who was employed by someone else. Denning LJ gave him 1/5th contributory negligence.
Rescuers.
It is for the Defendant to show that the rescuer was acting in such a fool hardy way that his actions can be seen as either totally his fault (unheard of) or he contributed to his own injuries:
Baker v TE Hopkins [1959] 1 WLR 966
Children:
Children are seen as being unable to contribute to their own injuries. There is no authority to show that they can, but it is accepted that it "may" be possible.
Gough v Thorne [1966] 1 WLR 1387.
31/2 year old girl trying to cross the road. A lorry driver stopped, and put his hand out of his window to stop the traffic. He then waved the children to cross. As they past the side of the truck the Plaintiff was hit, at excessive speed, by a bubble car. The Plaintiff bubble car driver claimed contribution, she should have looked.
Lord Denning refused to allow this, saying that a 131/2 could have that knowledge or life experience. Upheld in Mullin v Richards [1998] 1 WLR 1304
Vicarious Liability.
A distinction must be drawn between contractor and employee. An independent contractor is liable himself whereas an employee is not, his employer is.
However, the Courts have said that the negligent act must be done "through the course of his employment." It is almost impossible in practical terms to find an act that is not done in the course of his employment.
