• Created by: Nikki
  • Created on: 10-04-15 11:56

The basics

Volenti non fit injuria ('no wrong is done to the willing')


Public policy concerns and reasons of proper administration of justice


  • used to be case that if either A or B died, they would be barred from suing/being sued 
  • rules abolished by s1(1) of Law Reform Act 1934
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Volenti non fit injuria: the rule

(1) C cannot complain that D committed a tort in relation to her by acting in a particular way if C fully consented to D's acting in that way

(2) If D has committed a tort in relation to C and C has suffered some kind of loss as a result, C will normally be barred from suing D for compensation for that loss on ground of volenti if she willingly took the risk taht she would suffer that kind of loss in teh way she suffered it

Morris v Murray (1991) - case of two men drinking together then going in a light aircraft --> C's claim dismissed --> he had willingly taken risk that D would fail to pilot plane properly and he would be injured as a result

Slater v Clay Cross Co Ltd (1956) - local residents who walked through train tunnel --> C walking through tunnel hit and injured by one of D's trains --> C sued D claiming D driver had been negligent in way he ahd driven train --> not kept proper look out --> D argued C's claim should be dismissed based on volenti -- CA allowed dismissed this argument --> when C walked through tunnel she did not willingly take risk train would negligently injure her

Haynes v Harwood (1935) - D negligently left horses unattended in streets; horses bolted; C, nearby police constable threw himself in way of horses and brought them under control - suffered injuries - CA held volenti not available --> C took risk but not willingly (emergency)

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Volenti: exceptions to rule

Paternalistic duties - if A owed B duty to stop B harming herself, then if A breaches that duty with result that B harms herself, A will not be able to defeat B's claim for damages on grounds of volenti --> this would make duty meaningless

Traffic accidents --> driver cannot claim volenti against injured passenger (statutory basis)

  • Pitts v Hunt (1991)
    • C and D stole motorbike and took it for joyride
    • D drove, C sat behind him; C encouraged D to drive faster and faster -- eventually crashed
    • C was volenti to risk of injury but claim could not be dismissed on that ground due to statutory provision

The 'fireman's rule' --> non exception - someone whose job invovles runnign risk of suffering particular kind of loss cannot seek to recover compensatory damages if he actually suffers that kind of loss in doing his job (US)

  • Ogwo v Taylor (1988)
    • HL refused to adopt firman's rule in English law - allowed fireman to sue householder for damages - injuries suffered by him in fighting fire negligently started by householder
  • Frost v Chief Constable of West Yorkshire Police (1999) --> no inclination to adopt rule
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Exclusion of liability (1)

Term in contract between D and C

If term properly interpreted excludes or limits C's right to sue D for tor the has committed, D normally able to use this term to defeat C's claim or limit his liability to C

Statutory limits

  • s2(1) UCTA
  • s2(2) UCTA
  • s3 Misrepresentation Act 1967
  • s149 Road Traffic Act 1988
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Exclusion of liability (2)

Term in contract between C and third party

D wants to take advantage of term in contract between C and TP which excludes or limits C's right to sue D for tort he has committed

Traditionally prevented by privity of contract

Artificial attempts by courts to get around this

Need for such attempts reduced by Contracts (Rights of Third Parties) Act 1999 --> D able tot ake advantage of a term in contract to which not party if:

  • D is expressly identified in contract as being someone who should be able to take advantage of that term
  • term purports to be for D's benefit and the parties to the contract have no indicated that D should not be able to take advantage of that term

Act more orientated to allowing TP to sue when contract breached, but s1(6) applies to cases where TP who is beinig sued wants to take advantage of aterm in contract to defend claim against him

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Exclusion of liability (3)

Term in contract between D and TP

TP has agreed in contract with D that if something goes wrong, D will not be liable or his liability will be limited

D wants to take advantage of term in contract with TP to say either that C cannot sue him or his liability to C is limited to certain amount --> D will find it very hard to do this --> courts resistant

Some occasions where D may be able to do this 

C cannot pick and choose --> cannot sue D for failing to perform responsibility that he assumed in contract and ignore terms on which he was prepared to assume that responsibility

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Illegality: the common law (1)

ex turpi causa non oritur actio 

apply to prevent C suing D in tort where:

  • D committed tort in relation to C and C, in consequence, committed a criminal offence and suffered loss as a result --> defence of illegality will usually bar C from suing D for compensation for that loss
  • C committed a serious criminal offence and D, in consequence, committed a tort in relation to C --> if there was sufficiently close relationship between C's crime and D's tort, deence of illegality will usually operate to bar C from suing D for committing that tort

Lord Hoffmann in Gray v Thames Trains Ltd (2009) --> wider and narrower form

Narrower --> 'you cannot recover deamage which is the consequence of a sentence imposed on you for a criminal act' --> based on need for consistency (civil shouldn't undermine criminal)

Wider --> 'you cannot recover for damage which is the consequence of your own criminal act'

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Narrower form of the defence

Victim of tort who has gone on, as a result, to commit a criminal offence will not be allowed to sue for damages to compensate him for fact he has been punished for committing that offence

Clunis v Camden and Islington HA (1998)

  • C found guilty of manslaughter on grounds of DR and was detained under Mental Health Act 1983
  • Attempt by C to sue D for daamges for loss of liberty --> never would have killed had D taken better care of his mental health --> claim dismissed on ground of illegality

Gray v Thames Trains

  • not allowing C to sue for earning he would have made in yeras he was detained in hospital ensure he was not beetter off than other people who had been detained for manslaughter and could not earn anything during their period of detention
  • proper understanding of causation --> D's negligence did not cause C to lose any earning for period of detention --> this is so even though C wouldn't have been detained but for D's negligence
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Wider form of the defence (1)

Tort before Crime --> B commits tort in relation to A, and as a result A commits a crime and suffers some loss for which A now wants to sue B

Policy reasons for not allowing claims --> encourages people to commit crimes

Vellino v Chief Constable of Manchester Police (2002) 

  • C = career criminal who was seriously injured jumping out of window to escape police custody
  • claim for damages dismissed --> police had not owed him a duty to stop him escaping
  • even if they had, C would have been barred on ground of illegality

One situation where damages should be payable --> where D has negligently or intentionally deceived C into committing a crime --> Griffin v UHY Hacker Young & Partners (2010)

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Wider form of the defence (2)

Crime before Tort --> A commits crime and as a result B commits tort in relation to A for which A now wants to sue B

More difficult --> threatens outlawry --> defence of illegality available if C's crime was sufficiently serious & there was sufficiently close connection between D's tort & C's crime

Revill v Newbery (1996) --> allotment case, N waiting, fired gun, R arm and chest injured by being shot --> N liable to pay damages to R - no defence of illegality because N's actions had been so out of proportion to threat posed to him by R

Cross v Kirkby --> hunt saboteur case; C attacked K with baseball bat; K seized bat and hit C on head with it; C sued K; CA dismissed claim on ground that K had acted reasonably in self-defence in striking C --> even if K had acted unreasonably defence of illegality available --> sufficiently close connection between C's criminal conduct and K's striking him

Situation where illegality always available --> D's tort was committed in furtherance of criminal joint venture between D and C --> blowing open the safe example

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Loss of criminal earnings or property

C suing D on basis that D's tort deprived him of an advantage that he ahd obtained, or was going to obtain, through committing a criminal act?

General rule --> C will not be able to sue D for such an advantage

Hewison v Meridian Shipping Services Pte Ltd (2002)

  • crane operator --> suffered from epilepsy and should not have been in charge
  • concealed epilepsy from D, thereby committing a criminal offence under s16 Theft Act 1968
  • D's negligence --> C injured on job --> injuries caused C to have 3 epileptic fits
  • D aware of C's condition --> forced to dismiss him
  • CA held C could sue for damages for injuries but not for money would have earned in future working for D --> earning represented proceeds of a criminal act

One exception --> where D in possession of property that has been obtained from C, and to which C has better title than D --> C entitled to sue D for value of property even if property stolen from TP or represents proceeds of crime

Webb v Chief COnstable of Merseyside Police (2000)

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Position of companies

Artificial legal person --> if B wants to raise defence of illegality to company's claim for damages against him, he will have to show company has behaved illegally --> need to know whose actions represent the company's actions

Stone & Rolls Ltd v Moore Stephens (2009)

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Illegality: statute

Criminal Justice Act 2003 - provide 'justice for victims of crime who had gone 'over the top' in injuring criminal who was threatening them or who had broken into their house

s329 designed to ensure that injured criminal would not be able to sue for compensation --> very different effect

s329 of 2003 Act provides that if:

  • B is suing A for damages on basis that A committed the tort of assault, battery, or false imprionment in relation to B doing x; and
  • B's actions round about the time A did x resulted in B's being convicted of an imprisonable offence; and
  • A did x because he honestly believed at the time: (i) that B was about to commit an offence or had committed an offence or ahd just committed an offence; and (ii) that it was necessary to do x in order to protect himself or another person, or to protect or to recover property, or to prevent the commission or continuance of an offence, or to apprehend B or secure B's conviction of having commited and offence; and
  • A's doing x was not grossly disproportionate to whatever B did, then
  • A will be able to raise a defence to B's claim against him
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The effect of s329

Never been relied upon by an ordinary person

Only ever been used by police to avoid being sued for using unreasonable force on members of public --> scandal

Adorian v Commissioner of Police of the Metropolis (2009)

  • A arrested by police for disorderly behaviour --> convicted of obstructing police in execution of their duty
  • in course of being arrested, A sufered multiple hip fractures of type normally only associated with being hit by car or falling from significant height
  • A sought to sue police for assault and batter --> claiming used unreasonable force in arresting him
  • police argued A's claim should be struck out on ground that s329 applied to his case
  • CA refused to strike out claim --> evidence that 'grossly disproportionate' force had been used on A
  • expressed concern at police attempting to use s329 against general public
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Contributory negligence

Law Reform (Contributory Negligence) Act 1945

Damages reduced in proportion to the fault of the claimant (s1(1))

s4 --> 'fault' means negligence, breach of statutory duty or other act or omission which gives rise to liability in tort or would, apart from the Act, give rise to defence of contributory negligence

D's conduct 

  • not available as defence to all torts --> doesn't apply if tort was:
    • conversion
    • amounted to an intentional trespass to B's goods
    • deceit
    • invovled dishonesty of any kind
  • never been a defence for D who intended to harm C 
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Contributory negligence (2)

C's conduct --> Damages payable reduced if it was 'partly [C's] own fault' 

Fault covers both deliberate adn inadvertent acts bu --> if deliberate - may be barred completely from suing for loss --> break in chain of causation or failed to mitigate her loss

In judging whether losses were 'partly [C's] own fault', ask:

  • whether B did anything to contribute to the fact she suffered those losses; and if she did
  • whether a reaosnable person of her age andin her physical condition would have actedin the way she did

If reasonable person of B's age and phsycial condiiton would not have acted as she did then it would be found that losses were partly her own fault

Corr v IBC Vehicles Ltd (2008) --> mental illness

  • B has no choice because of illness --> damages should not be reduced
  • illness made it difficult --> damages should be reduced to recognise element of choice
  • damages not reduced anywhere near as much as they would have been if B did not have any good reason for acting as she did 
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Contributory negligence (3)

Assessment of reduction

Two party cases --> assess comparative blameworthiness of A and B for loss suffered by B

Three party cases --> join together A and B and ask, as compare to C, how much to blame were A and B

Fitzgerald v Lane (1989)

  • P walked across road when lights against him
  • struck by car negligently driven by D1
  • lying in road, P struck by car driven negligently by D2
  • both D1 and D2 caused P to suffer injuries suffered as result of second collision --> P entitled to sue either or both
  • P partly to blame
  • Found that P twice as much to blame as each of 1 and 2 --> D1 25%; D2 25%
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Contributory negligence (4)

Self-harm --> troubled the courts

Corr v IBC Vehicles (2008) --> employee (B) injured in workpalce caused by employer (A's) negligence --> developed PTSD --> killed himself

Law Lords divided -->

Bingham and Walker --> depressed state meant B not at all to blame for death --> no reduction

Scott, mance and Neuberger --> if not an automaton at time he killed himself, death was in part his responsibility --> reduce damages for contributory negligence

Willingness to use contributory neglgience against someone metnaly ill with some degree of autonomy when they harmed themselves reaffirmed that Reeves v Commissioner of Police of the Metropolis (2000) is good law

Reeves --> someone charged with credit car fraud and remanded in police custody --> known to be suicide risk --> took advantage of police carelessness and killed himself in his cell --> prisoner of sound mind --> HL held damages payable to prisoner's dependants in respects of his death should be reduced by 50% for contributory negligence

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Contributory negligence (5)

Contributory negligence and Hedley Byrne

If A gives advice to B, suggesting that advice can be relied upon, and B later sues A in negligence for the incorrect advice, unlikely that A could raise defence of contributory negligence since she had already suggested to B her advice could be relied upon

If extent of losses suffered by B as result of actin gon A's advice was partly B's fault, then no reason why A should not be allowed to raise defence of contributory negligence to reduce the damages payable to B

Home Loans v Oyston Shipways Ltd (2000)

  • C 20% to blame --> had failed to check whether or not H was credity risk and had loaned H more than was reaosnable given D's valuation of H's house --> so D entitled to raise defence of contributory negligence
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Contributory negligence (6)

One final limit

If reaons why B suffered those losses has nothing to do with reason why her action was unreasoanble, it seems A will not be able to raise defence of contributory negligence to B's claim to be compensated for those losses

Jones v Livox Quarries Ltd (1952) --> A negligently fired gun and bullet hits and injured B while she was dangerously standing on the back of a moving lorry --> standing thre was unreasonable and had she not been standing there she wouldn't have been hit --> but deence not available because the reason it was unreasoanble to be on the lorry had nothing to do with why B was hit

Westwood v The Post Office (1974) --> C who took breaks on flat roof of 3 storey building and one day fell through trapdoor and was injured --> no defence of contirbutory negligence available because reason why C was injured had nothing to do with why it was unreasonable to be on the roof

St George v Home Office (2009) --> C given prison sentence; addicted to alcohol and drugs; suffered epileptic fits when in withdrawal; informed staff upon arrival; still put on top bunk; had epileptic fit, fell off bunk and suffered severe brain damage --> no CN because reason why C suffered brain damage had nothing to do with why unreasonable to be addicted to drugs/drink 

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