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Defences to Negligence - Coggle Diagram

- - - - Standard of care- C failed to take proper care of safety. Objective, but more subjective than the reasonable man: Gough v Thorne [1966] 1 WLR 1387
        
        A 13-year-old girl, C, was crossing a road with her younger brother
        
        A lorry driver stopped and signalled to them to cross
        
        As she walked out, another car overtook the lorry at speed and struck her, causing injuries
        
        The issue was whether the girl had been contributorily negligent for crossing the road
        
        Held: The Court held that the girl was not contributory negligent. Lord Denning MR ruled that a child of her age was entitled to rely on the lorry driver's signal
        
        Causation: C's conduct must contribute to damage
        
        - Fitzgerald and Lane v Patel [1989] AC 328: All 3 parties equally at fault
        
        First trial ordered two D's to each pay a third of the total damages: so C received two-thirds of the total damages
        
        HoL subsitutted an apportionment of 50% to be divided between the two D's
        
        First, assess full damages accordingly
        
        C not to be over-compensated simply because there are two D's
- - - - Smith v Baker & Sons [1891] AC 325: C worked in a quarry. Crane swung large rocks over his head without warning
        
        C complained several times, employer did nothing
        
        Rock fell and injured C: not volenti, Lord Halsbury LC: crossing the street is not consenting to the risk of injury just because we know there are negligent drivers
        
        Volenti and car passengers: Road Traffic act 1988 (C cannot be volenti if passenger is in an insurable motor vehicle), s.149
        
        Applies only to motor vehicles intended for driving on roads
        
        Morris v Murray [1990] 3 All ER 801: C volenti when went on drunken joyride with D's light aircraft
        
        Dangerous sports: Participants consent to trespass within the rules of the sport, but not acts of violence outside rules of the sport(s). Nor does C consent to negligence by referee- Vowles v Evans and Another [2003] EWCA Civ 318
        
        Videan v BTC [1963] 2 QB 640: C, station master, killed rescuing his two-year-old child from being hit by negligently-driven motorised trolley
        
        Child trespassing, so not foreseeable
        
        D still liable- principle of "danger invites rescue" applies even if the rescuer is member of rescue services
        
        Salmon v Seaffarers Restaurants Ltd [1983] 3 All ER 729: C, a firefighter, injured in blaze, negligently caused by D
        
        Where fire is negligently started, and fireman at risk even though they exercise professional skill, "no reason why a fireman should be at any disadvantage, when the question of compensation for his injuries arises": Woolf LJ
        
        Reeves v. Commissioner of Police for Metropolis: No volenti where police had a duty to protect a man in their custody from self-harm
- - - - Engagemet in illegal or immoral activity
        
        Stuart-Smith LJ: Act must be 'sufficiently serious' and 'generally speaking a crime punishable with imprisonment could be expected to qualify' (Velino v CC of Greater Manchester Police [2002]) at [70]
        
        Minor criminal offences by C may not affect liability of D... but see Ashton v Turner [1981] QB 137
        
        In Ashton v Turner- both C and D committed burglary together
        
        While fleeing the scene D (driver) crashed the car and injured C
        
        C sued for ngeligent driving- the court struck out the claim, owing to the principle that no duty of care is owed between criminals engaged in a joint illegal enterprise
        
        Basis of decision was a matter of public policy- the law would not recognise a duty of care owed by one participant in a crime to another- court unwilling to determine what speed would be expected from the reasonable getaway driver
        
        Contrast with Revill v Newbery [1996]- where C was a burglar, shot by D. The court still allowed partial recovery despite the criminality of the act
      - Sufficient link between activity and the tort
        
        There must be a link between the illegal act and alleged tort: Pitts v Hunt [1990] 3 All ER 344
        
        C and D rode motorcycle after drinking. C knew D was uninsured and encouraged him to drive recklessly
        
        D crashed and injured C- held, illegality applied and D not liable
        
        Basis for decision: C's claim arose directed from his own illegal act.
        
        Fraud- Hewinson v Meridian Shipping [2002] EWCA Civ 1821: Facts: Main lied to get a job as a crane operator and then injured
        
        Held: Illegality applied and D not liable
        
        Basis for decision: Deceit was an essential part of his claim
      - The claim should be defeating, balancing all relevant factors
        
        Patel v Mirza [2016]
        
        Mr Patel transferred £620,000 to Mr Mirza for the purpose of insider trading
        
        After not occuring, Mr Mirza refused to pay back the money despite promising to do so
        
        Held: Illegality did not apply and C entitled to restitution
        
        Basis for decision: Public interest that underpins the illegality defence best served by balancing relevant factors
        
        The aim was to resolve the issue by bringing parties back to their position before the tort was committed (aim of tort)