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Torts: Defences (Volenti (voluntary assumption of risk)/ Consent …

- - - - S2(1): can’t exclude liability for death or injury
        S2(2): in other cases exclusion must be reasonable
        S2(3): mere awareness of a term doesn’t indicate consent
      - Reasonableness
        (Smith v Eric S Bush)
- - - - Ng Weng Cheong v Soh Oh Loo, where P crossed the road when the lights were against him, 70% reduction and Asnah Bte Ab Rahman v Li Jianlin, where P crossed the second half of a dual carriageway without re-checking that the road was clear
    - - Children
        
        reasonable child test, objective
        (Gough v Thorne)
        
        (Ang Eng Lee v Lim Lye Soon)
      - Circumstantial factors: emergency
        (Jones v Boyce)
      - Reasonable man test
        
        disability is not taken into account (although the court held that anyone could have done similarly)
        
        diving blocks at the shallow end of pool
        (Town of Port Headland v Reece William Hodder)
        
        at SOC stage, trying to be fair to P; at CN SOC stage, trying to be fair to D -> both objective test
      - Can have deliberate act leading to CN just like there can be deliberate act in negligence
        (Reeves)
    - - Contribution to accident (damage causing event) (higher reduction)
        
        not just cause of damage but cause of accident
        (Fitzgerald v Lane, Jackson v Murray)
      - Contribution to damage but not event (lower reduction)
        Froom v Butcher, Asnah Bte Ab Rahman, Cheng William
        :
    - - Within scope of risk
        
        type of risk and type of damage which materialises
        (Jones v Livox Quarries)
  - - - but can join negligent parent in action as third party nowadays
  - - - Generally, green man -> no CN
        However, in Asnah Bte Ab Rahman v Li Jianlin, the majority of the Singapore CA held a pedestrian 15% responsible for the injuries he sustained when crossing the second half of a dual carriageway with the green man in his favour. The judgment was based on the fact that the Highway Code requires pedestrians to check before crossing a road
        Menon CJ dissented, observing that the ruling would require pedestrians to “safeguard themselves in the same manner … as if they were jaywalking”
- - - - SOC approach
        
        SOC impossible to determine
        (Jackson v Harrison, Mason J, Aus)
        Adopted by UKCA
        
        encouraged D to ride bike recklessly
        (Pitts v Hunt)
        
        Cessation of joint illegal activity + rejection of SOC approach
        
        start of car journey -> no DOC
        
        time she wanted to stop committing crime and get out of car (even though it was because D was driving erratically not because it was a crime) -> DOC start
        
        SOC can be easily determined -> standard of reasonably competent driver
        HELD: no illegality
        (Miller v Miller, Aus)
        
        No DOC because impossibility of setting SOC
        (Gala v Preston, Aus)
      - DOC approach
        
        Adopted by Aus HC
        
        assumption that each participant in a joint illegal activity was equally responsible for the acts of the other
        
        P and D stole car, D crashed car
        HELD: no DOC
        (Smith v Jenkins, Aus HC)
        
        Adopted by UKHC
        (Ashton v Turner)
      - Causation approach
        
        TEST: whether P's own act was the cause of his own damage: unusual or increased risks of harm foreseeable from character of joint criminal enterprise, and risk materialises
        
        followed Gray v Thames analysis
        
        active encouragement as in Pitts v Hunt not required
        (Joyce v O'Brien, UKCA, hanging off the back of a getaway vehicle)
      - Public policy approach: causation approach questioned
        
        causation approach not a blanket rule, may not be always appropriate, but public policy is always appropriate
        (Hounga v Allen, UKSC, after Joyce)
  - - - Very thing D had duty to prevent
        
        Exception: D's breach was minor; plaintiff's act was extremely blameworthy
        
        Very thing principle
        
        Buxton LJ in CA held they couldn’t use illegality to avoid liability because of very thing principle.
        
        The other judges based their rejection of illegality on the fact that suicide was no longer a crime.
        
        When the case was appealed to HL, the illegality argument was not pursued. (ppt)
        HELD: no illegality, yes CN
        (Reeves v Commissioner of Police)
        
        NB: suicide a crime in SG -> difference? stronger DOC to prevent or successful illegality defence?
        
        Very thing principle defeated in rare cases: policy
        
        P: tricked auditor into thinking that there was no hidden fraud
        
        D: did not manage to detect fraud
        
        P's liquidator sued D
        
        Policy reasons: P should not get compensation from D who P purposely tricked
        HELD: yes illegality
        (Moore Stephens (a firm) v Stone & Rolls Ltd)
      - Public policy and serious/violent crimes
        
        question of degree
        
        Causation too
        (Vellino v Chief Constable of Manchester Police)
        
        Clear public policy decision
        
        P mentally ill but not insane, did not turn up for appointments and prescriptions -> became paranoid, stabbed someone to death in unprovocaked attack (manslaughter (CHNATM))
        
        D local authorities did not have resources to chase him down
        
        P sued for deprivation of liberty
        (Clunis v Camden)
        
        Narrow and broad policy grounds
        
        train crash, PTSD, depression, D banged on his car window, PTSD triggered, P went home got knife and stabbed D, convicted for manslaughter
        
        public policy (narrow rule and broad rule): cannot claim for loss of liberty and earnings
        
        public policy is now broader, might vary from case to case (Lord Hoffman)
        (Gray v Thames Trains)
        
        (Cramer)
        
        Other non-tort cases
        
        Crimes and non-crimes to which illegality applies
        
        S got injunction to stop A from infringing patent; but patent wasn't valid, A sued to recover money lost because of injunction
        
        patent in UK invalid; patent in Canada invalid
        HELD: no illegality, act of infringing the Canadian patent, which was purely a matter of private law (not criminal), was not of sufficient ‘turpitude’ to raise an issue of public policy
        -
        
        illegality would only apply when: (i) criminal or quasi-criminal ; (ii) dishonest or corrupt; (iii) clearly contrary to public policy, even when not actually criminal (eg prostitution); or breaches of statutes enacted to protect the public interest
        (Les Laboratoires Servier v Apotex, Lord Sumption)
        
        Flexible policy approach to crime
        
        conspiracy to commit insider dealing
        
        P have D money (620k pounds) to bet on bank's share price using inside information
        
        information did not materialise and D did not place bet
        -
        
        flexible policy based approach: whether the public interest in preserving the integrity of the justice system ought to result in denial of the relief sought
        
        no public interest in letting D keep the money
        -
        
        overturned Tinsey v Milligan [1994] cannot succeed on action which relies on his own wrong
        (Patel v Mirza, UKSC)
    - - Minor and unconnected acts
        
        D: fraudulent misrepresentation of nature (amount) of property being transferred
        
        P: agreed to tax evasion
        
        P's minor and unconnected act would not prevent claim -> prefer to address as CN
        
        The court should not “draw up its skirts and refuse all assistance” to P “on the first indication of unlawfulness” (Bingham LJ)
        (Saunders v Edwards)
      - Disproportionate response
        
        D: thief stealing vegetables from P
        
        P: shot D, even though D did not display intention of resorting to violence -> out of proportion to the threat involved
        
        reduction for CN
        (Revill v Newbery, Rougier J in HC, affirmed in CA)
    - - Current law: Can apply to separate wrongs
        
        very thing principle applies: P handing in incorrect tax returns, D was employed to help P file taxes correctly
        
        not really a crime, only technically a wrong
        -
        
        in cases which did not involve the ‘very thing’, illegality would succeed only where P’s conduct was truly reprehensible or grossly immoral
        (United Project Consultants Pte Ltd v Leong Kwok, SGCA)
      - Implied that illegality only in joint illegal enterprise?
        (Ooi Han Sun v Bee Hua Meng)