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

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

[Link] C Belong to a Special Categories: …cannot generally be said to have consented to their
injuries
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 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]

Illegality (ex turpi causa non oritur actio) (@51:00; 1:15:00)

[Link]:
 Founded on public policy to maintain the legal system’s integrity and consistency, where
the claimant was engaged in a serious illegal or immoral enterprise at the time of injury
and obstructs them from claiming compensation

[Link] the reality of its application:

 ‘this area is characterized by the complex matrix of judicial interpretation and discretion’:
Giliker (2001)

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  The application of the defence however has proven to be quite problematic resulting in
quite a degree of dissent among case law. Attempts to provide a single test are
inconclusive as the courts are divided on the correct approach.
 On one hand the courts consider a close connection between the injury and criminal
enterprise and on the other they consider public policy. Therefore lacking consistency and
certainty
 Lord Neuberger in Jetivia SA v Bilta (UK) Ltd [2015] UKSC recognised the root of such
issues lied in the ‘spectrum of view’ on how to balance the need for clarity and consistency
while achieving fair outcome. Clarification he held is needed is as soon as possible
 A useful starting place can be (strict moral appraoch) Lord Mansfield in Holman v Johnson
(1775): This principle of public policy is where ‘No court will lend its aid to a man who
founds his cause of action upon an immoral or an illegal act'
 But finding a test to reflect such concerns have been challenging, hence Elias LJ in Joyce
v O’Brien (2013) observed that doctrine is one of public policy, there should be some
flexibility in its operation
 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
 Case law may look at the turpitude of the claimant in some instances and the connection
between their claim and a serious crime
 Apply case law

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

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)

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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

Conspiracy and Inchoate Offences

 [seminal contract, restitution case] Patel v Mirza [2016] UKSC: 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 – no defence
o 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 illegality defence principle, moved from a 17th century, strict not flexible rule –
based, mechanical, formalistic, moral approach, as established in Holman v
Johnson and Tinsley v Milligan, to a logical discretionary approach of the 21st
century as Patel v Mirza resettled
o The leading Judgement in Patel v Mirza was given by Lord Toulson. He rejected
the rule – based approach and, in particular, the reliance test established in Tinsley
v Milligan. In its place, a flexible approach was adopted, so that the court should
consider the policies involved, public interest, and the need for proportionality
o Structured discretion

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 o The 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
o A claimant will not be prevented from enforcing his claim to property because it was
paid to perform an illegal act, unless allowing his claim would be contrary to
relevant public policy, or it would be disproportionate to allow him to recover.
o The majority held that the public interest is best served by a discretionary
approach, which allows the court to consider a range of factors. Such a policy-
based ‘structured discretion’ approach was favoured by the Law Commission
(2009 Consultative Report) and no longer proposed in 2010 in light of Gray’s policy
factors approach
 Equity maxim: Patel v Mirza showed also that, there is a close similarity between the
operation of equity and of common law in this area. In effect, the maxim of equity, “One
who comes to equity must come with clean hands”, is closely related to the common law
principle, EX TURPI CAUSA NON ORITUR ACTIO
 the Supreme Court in Patel v Mirza, established a discretionary approach where illegality
is concerned, balancing various considerations and adopting a proportionality test which
will be discussed further below.
 Henderson v Dorset Healthcare University NHS Foundation Trust and Stoffel & Co v
Grondona confirmed Patel’s policy driven ‘range of factors’ approach of flexibility however
this does not increase predictability
 The decisions in Stoffel and Henderson have clarified some of the uncertainty
following Patel as to how the courts will apply the flexible, policy-based approach to the
illegality defence. It is now clear that it applies across the whole of the civil law, not just in
the unjust enrichment context. Nevertheless, the illegality defence remains dynamic and
highly dependent on the specific facts.
 Stoffel & Co v Grondona [2020] UKSC, the Supreme Court clarified the common law
approach to illegality as established in patel
 Was the conspiracy connected with the injury? See close connection above

Reform
 The Law Commission issued no fewer than three consultation papers on the illegality
defence,Footnote1 before concluding that,Footnote2 aside from trusts, no proposals were
needed since, in its view, the law was moving in the right direction with Gray v Thames
Trains Ltd.Footnote3 That case was subsequently endorsed by Henderson.
 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
 The founding case for the modern approach to the defence of illegality is Patel v Mirza
 The first judgment was given by Lord Toulson, He said that the defence of illegality
involved a trio of considerations

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  Lord Toulson’s approach was endorsed and applied in Stoffel and Henderson. Henderson
also confirmed explicitly that the test in Patel should be seen as applicable, not just to
claims in unjust enrichment, but across civil law generally

Policy cases Close connection cases

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

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

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  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)

[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
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  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
 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

 No 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.

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’