GENERAL DEFENCES ANSWER GUIDE

STEP 1: Identify and Make Out the Tort Committed

 Negligence
 Trespass

NB: In these questions, the claimants usually rely on the same act by the defendant but bring
separate claims.

Consent (volenti) Illegality (ex turpi) Contributory Negligence

Type Complete Complete Partial
Governed Under Common Law Common Law Statute

STEP 2: Identify and Assess the Relevant

 Consider the complete defences first

Consent (volenti non fit injuria)

[Link] Defence
 volenti non fit injuria or “voluntary assumption of risk”
 a complete defence
 can be express or implied

2.D Must Demonstrate 2 Limbs together

1. P had Knowledge of the Risk
 This is a subjective test requiring more than just a vague awareness of the danger;
but rather a more specific knowledge of the type of risk involved in the particular
activity: Morris v Murray [1990] – C and D, very drunk, decided to fly a plane which
crashed and killed P. The danger was held to be so obvious and P was not so
drunk as to be incapable of appreciating the nature and the extent of the risk
involved
2. P Willingly Accepted The Risk
 This requires P to have a choice as to whether or not to take the risk: Smith v Baker
[1891]
 P had the mental competence to agree: Gillick West Norfolk and Wisbech AHA
[1986] AC
 Consent will not be vitiated by the claimant’s age provided the claimant
understands the nature of the act: Gillick v West Norfolk Health Authority [1986] AC
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[Link] C Belong to a Special Categories: …cannot generally be said to have consented to their
injuries
Passengers in a Vehicle
 According to the Road Traffic Act [1988] s.149(3): the willing acceptance of the risk of
negligence by a passenger [extends to other road users: pedestrians] does not absolve a
driver of liability.
 Say: ‘while they may want to raise the defence of consent, the RTA 1988 s.149(3) will
negate their claim as it provides that…’

Employees
 Continuing to work in a job that is known to carry risks cannot be taken as consent to the
risk: Smith v Baker (1891)
 NOTE: contributory negligence may be more successful as a defence against such
persons because employees also may act outside of what is expected.

Participants in a Sporting Event

 Such persons consent to the risks inherent (reasonably expected in the sport sustained
during the course of normal play, called “fair play”, BUT NOT:
o unsporting behaviour that is in breach of the rules of the game: Smoldon v
Withworth and Nolan [1997]
o carelessness of the players (an action in negligence may lie): Condon v Basi [1985]

 The same would seem to apply to ‘horseplay’: Blake v Galloway [2004].

 Hence the defence of consent will only operate in these circumstances if P was injured
during fair play. If outside of that, P can pursue a claim under negligence or trespass to
person as a battery

Spectators in a Sporting Event

 They are deemed to have consented to risks of ham arising from ‘error in judgement or
lapse of skill’ by a participant BUT NOT to injuries caused by negligence or even
deliberate acts (trespass): Wooldridge v Summer [1962]

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 Illegality (ex turpi causa non oritur actio)
[Link]:
 Also known on the maxim ex turpi causa and Founded on public policy to maintain the
legal system’s integrity and consistency, it applies where the claimant was engaged in a
serious illegal or immoral enterprise at the time of injury and obstructs them from claiming
compensation (Lord Mansfield in Holman v Johnson (1775))

[Link] the reality of its application:

 However as clear as the implicit intention of the principle may be, when it comes to a
rationale for decisions, the area had been ‘characterized by the complex matrix of judicial
interpretation and discretion’ (Giliker [2001])
 The core of its problematic application lies in the ‘spectrum of views’ on how to balance
the need for clarity and consistency while achieving fair outcomes (Jetivia SA v Bilta (UK)
Ltd [2015]). Not to mention the dichotomy between considering close connection and
public policy. The result; failed attempts at providing a single test and clear lack of
consistency, and predictability culminating in obvious confusion. Hence, Lord Neuberger
declaring in the Supreme Court that clarification of the defence is needed as soon as
possible (Jetivia [supra]).
 Although a useful starting place can be the strict mechanical moral appraoch in Holman
(supra), finding a test to reflect such concerns have been challenging, hence following the
seminal case of Gray v Thames Trains Ltd (2009), Elias LJ in Joyce v O’Brien (2013)
observed given the doctrine is one of public policy, there should be some flexibility in its
operation. Such a flexible appraoch was endorsed by Law Commission’s Consultation in
2009, however in 2010 it declined further reformative proposals following Gray’s (supra)
express policy factor approach, which in its view, was a step in the right direction. Since
Gray, the defence of illegality has been to the Supreme Court at least seven times, whose
judgments have not spoken with one voice. There is still need for clarity (Tamblyn 2022)

[Link] Case Law and Analyze

 In some instances, cases may even look at the claimants’ turpitude and connection with
the serious crime.
 In its simplest application it requires a close connection between the injuries sustained
and the criminal enterprise in which he was involved but in a broad or more flexible
approach it would invite public policy

Questions
1. What caused the injury? Closely connected to crime or tort?
2. Was the injury a foreseeable risk of the criminal enterprise?
3. Did they complete the act? Or was it mere conspiracy?

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 On Close Connection
 There must be a causal link (act caused injury) between the injury and illegal act: National
Coal Board v England (1954)
 Patel v mirza; 2020 cases in suppport
 Gray v Thames Trains Ltd (2009) UKSC, Lord Hoffmann: he highlighted the wide and
simpler rule/policy ground that one cannot recover damages for the consequence of their
own criminal act. FACTS: C suffered psychiatric injury (PTSD) in a rail crash caused by
the defendant’s negligence and as a result killed someone. He sued D for various
damages. – defence (not liable)
 Joyce v O’Brien (2013): see below
 Vellino v Chief Constable of Greater Manchester Police (2001): injury from criminal act of
escaping lawful custody could be said to be inextricably linked - defence
 Delaney v Pickett [2011] EWCA: no defence where C’s illegal activity is merely incidental
to an accident or other event. FACTS: C happened to be in the process of making an
illegal drugs delivery at the time of the traffic accident. Although the offence gave
occasion to the injury, it was not the immediate cause – no defence (liable)

Complete Offence
 Joyce v O’Brien [2013] EWCA: defence would apply where the injury fell within the scope
of foreseeable risks of the criminal activity. if the risk materialises (even negligent or
intentional acts by co-criminal), then the claimant’s injury can be said to be caused by his
or her criminal act. FACTS: in a joint enterprise, after stealing ladders, C fell out of vehicle
due to D’s negligent driving. Not only was the injury closely connected with the criminal
act but reckless driving was within the scope of contemplated risks for a burglary –
defence (not liable)
 Pitts v Hunt (1991): C, knowing D was underage, drunk and unlicensed, rode a motorbike
and encourage the criminal act of reckless driving. D died and C was injured in a crash.
However, C’s action arose directly ex turpi causa (out of his own illegal act) – defence (no
claim)
 Ashton v Turner (1981): both parties took part in a burglary, C badly drove the getaway
car and injured C. Closely connected to crime – defence
 Revill v Newbery [1996]: did not work because it would have been inconsistent with OLA
1984 despite C clearly committing a crime, because D breached his duty toward C. The
defence may work for injury by a co-burglar but not the occupier
 Clunis v Camden and Islington Health Authority [1998]: C, who had a history of mental
illness, was detained after killing a stranger. For loss of liberty, he sued the health
authority in negligence for not giving him proper care which would have prevented the
murder. However, he knew what he was doing, and so there was no connection between
his act and the negligence of the health authority. It would be contrary to public policy to
support such a claim arising out of the commission of a crime – defence (not liable)
 Hounga v Allen [2014] UKSC: the Supreme Court held that illegality did not defeat a claim
in relation to the statutory tort of discrimination where C was an illegal visitor to the country

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 Conspiracy and Inchoate Offences
 You need a criminal act for the defence, not the intention to commit
 Was the conspiracy connected with the injury? See close connection

 Incomplete offence - [seminal contract, restitution case] Patel v Mirza [2016] UKSC:
defence will operate if allowing his claim for compensation would be contrary to relevant
public policy, or disproportionate
o FACTS: C (Patel) gave D monies to bet on shares using inside information which
never materialized. C successfully recovered the monies, despite it being paid
pursuant to criminal activities as it would have been against public policy for D to
keep it – no defence
o Therefore, Patel used policy because there was no injury, although it was economic
loss, or offence
o The leading judgement given by Lord Toulson, rejected and overruled the
mechanical, rule-based approach, that is the reliance test, from Tinsley v Milligan
(1994) [one cannot rely on an illegal act in order to advance their case]
o The majority were in favor of a structured discretionary approach to enable the
court to consider a ‘range of factors’: balancing policies involved, public interest,
and the need for proportionality
o Lord Toulson said the defence involved a trio of considerations: This three-stage
test marked the move from a strict inflexible rule-based approach, to a more
pragmatic approach based on the balancing of public policy considerations.
o Equity: Patel illustrated that the maxim of equity, “One who comes to equity must
come with clean hands”, is closely related to this common law principle of ‘ex turpi
causa non oritur actio’
o The supreme court in Henderson v Dorset Healthcare University NHS Foundation
Trust [2020] and Stoffel v Grondona [2020] confirmed Patel’s flexible ‘range of
factors’ approach however this does not increase predictability as the area remains
dynamic and highly fact dependent

Policy cases Close connection cases

 Pitts v Hunt  Delaney
 Clunis  Joyce v O’Brien
 Gray
 Joyce v O’Brien (mixed with close
connection)
 Patel

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 Contributory Negligence
[Link] Defence
 A partial defence
 It applies when C’s carelessness (failure to take care of own safety) has in some way
caused or contributed to his own injuries.
 Adjusts the level of damages awarded (payable to the claimant) to reflect the claimant’s
responsibility for his own injury

[Link] Application
 Governed under Law Reform (Contributory Negligence) Act 1945 s.1(1)
 Test/Standard of Care: ‘to act as a reasonable prudent man’: Jones v Livox Quarries
[1952]; Badger v Ministry of Defence (2005)
 Focus: on the claimant’s contribution to his injuries and not the accident that caused them
o This can be tricky. For example, if a cyclist does not wear reflective clothing, it
contributes to accident and not injuries.
 Baker v Willoughby (1969): C was run over by D. Although D was driving carelessly C had
a clear view of the road for the last 200 yards travelled by the car, and had taken no
evasive action – defence
 Badger v Ministry of Defence (2005): C continued to smoke when its danger became
common knowledge

 Foreseeability of Harm: C’s injury must fall within the general scope of the risk they were
taking by being negligent for their own safety: Jones v Livox Quarries (1952): C was riding
in the back of a vehicle not made to carry passengers and was hit from behind. When in a
vehicle being hit was within the range of possible risks – defence
 Badger v Ministry of Defence [2006]: C developed cancer from smoking but was became
aware of the dangers and was told to stop – defence (20% reduction)
 St George v Home Office [2009]: C suffered seizures when in withdrawal but prison
assigned him a top bunk bed and fell. D argued his drug addiction as CN for the injury, but
court held it was too remote in time, place and circumstance and was not sufficiently
connected with the negligence of the prison staff - no defence
 Revill v Newbery (1996): C entered D’s shed to burgle and was accidentally shot by D,
who was waiting for him. Although D recklessly harmed C, being harmed by an occupier
was a foreseeable risk – defence
 Reeves v Metropolitan Police Commissioner (1999): makes it clear that intentionally
harming yourself can be contributory negligence. Police were found negligent in allowing a
prisoner to commit suicide but C’s death was caused equally by his own action in doing so
- defence (50% reduction)

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[Link] to the Test

Children
 Children are less likely to recognise the risks inherent in their conduct than adults.
However, the courts would consider if the child’s behaviour showed a level of care for their
own safety that was appropriate for her age [as well as Mental Capacity].
 Gough v Thorne [1966]: a 13-year-old struck by an overtaking car after following
instructions to cross the road by a lorry driver who obscured her view as she was trying to
cross the road. No contributory negligence as the child did all that could be expected of a
child of her age.
 Morales v Eccleston [1991]: 11-year-old was struck by a car while playing football in the
middle of a busy road – a 75% reduction of his (defendant) damages was given in worth of
his contributory negligence.
 Yachuck v Oliver Blais [1949] AC: 9-year-old child was not found to be contributorily
negligent when he suffered serious burns after setting fire to petrol supplied by the
defendants.
 Jackson v Murray [2015] UKSC: 13-year-old child crossed road ‘in reckless folly’ found at
1st instance to be 90% contributorily negligent. The decision was reversed at the SCJ to
have her damages instead reduced to 50% as the driver was not keeping a proper lookout
and was driving too fast in the circumstances.

Rescuers
 They must act at the standard of a reasonable rescuer.
 Contributorily Negligent: rescuer has shown ‘wholly unreasonable disregard for his/her
own safety’ will the court find that they are contributorily negligent: Baker v TE Hopkins
and Sons Ltd [1959]
 Includes: ordinary volunteers and professions, whether or not acting in a professional
capacity
 Acting in Professional Capacity:
o they would be in a better position to calculate taking certain risks
o therefore, this standard is higher than someone in an emergency situation

Emergency Situations
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  A person acting ‘in agony of the moment’ is not expected to take the time to weigh up the
risks of their actions and this is taken into account in relation to the question of
contributory negligence.
 Jones v Boyce [1816]: the question to be asked is whether the C’s actions were
reasonable in the context of the dangerous situation
 The standard differs from a 'reasonable prudent man' and rescuer because due to the
pressure of the situation such as time, immediacy and emotions, they would not be able to
think it through and so would think differently

[Link] Seatbelts Worn: the court approportion contribution according

 Froom v Butcher [1975] set the scale of reduction:
o injuries would have been avoided altogether if seatbelt was worn – 25% reduction.
o injuries would have been less severe if seatbelt was worn – 15% reduction.
 If injuries are ‘serious’, then one might say that the injuries would at least
have been less severe if a seatbelt had been worn
o injuries would have been the same even if seatbelt was worn – 0% reduction.

STEP 3: Conclude
 at the end of each defence’s assessment, state whether, on the facts available, it will operate
 ‘The claimant will be able to sue D successfully in the claim’