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Defences In Tort Notes

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Defences

1. Contributory Negligence Law Reform (Contributory Negligence) Act 1945: S.1(1) A person suffers damage and it is partly their own "fault", they can claim but their damages will be reduced by the amount that the court considers "just and equitable" taking into account the claimant's own responsibility. However, this doesn't prevent defences or limitation/exclusion clauses etc from operating (they take priority). S.4: "damage" includes loss of life and personal injury; "fault" means negligence, breach of statutory duty or other act or omission which gives rise to a liability in tort or would, apart from this Act, give rise to the defence of contributory negligence.

Jones v Livox Quarries [1952] 2 QB 608: P, a miner, was standing in a position where he had been ordered not to stand, and was injured when another miner negligently drove a vehicle into him. P sued D, the mining company. CA said that it was partly P's fault and partly D's fault, so that the damages P could have got had he not been acting carelessly would be reduced under the 1945 Act. Denning LJ: "A person is guilty of contributory negligence if he ought reasonably to have foreseen that, if he did not act as a reasonable, prudent man, he might be hurt himself; and in his reckonings he must take into account the possibility of others being careless." Once negligence is established, the share of the loss attributed to each party, however, does NOT depend on foreseeability, but on causation. "What faults were there which caused the damage?" Causation is a matter of common sense. Stapley v Gypsum Mines [1953] AC 663: P and X were mine workers and tried to fix a dodgy roof and were told not to do any work under it until it was fixed by the owner, D. When they couldn't fix it, they jointly decided (neither was in charge of the other) to continue their work, which meant P (but not X) going back under it, and it collapsed, killing P. X's actions made the company liable. The HL held that P was 80% responsible and D was 20% responsible. Therefore P's award was reduced by 80%. Lord Oaksey: It was uncertain whether P would still have worked under the roof had X not concurred in the joint decision and therefore it is too speculative to reach the conclusion that he would not, which would raise the percentage for which D would be liable (Surely therefore it is also too speculative to conclude that he would not. What is the justification for erring on the side of D?).

Lord Reid: To establish causation we should ask "was D's fault so much mixed up with the state of things brought about by P that in the ordinary plain common sense of this business it must be regarded as having contributed to the accident." Here it was, there being no "sufficient separation of time, place or circumstance between them to justify its being excluded". Lord Tucker: Only P returned to work under the roof and therefore he is more at fault than X. Reeves v Commissioner of Metropolitan Police [2000] 1 AC 360: D's husband, X, was arrested by P and known to be a suicide risk (although perfectly sane). Because the glass was missing from the spy hole, X was able to thread his shirt through it, producing a cord with which to strangle himself. D, the widow sued P. HL allowed her claim for negligence but reduced it by 50% for contributory negligence. Lord Hope: "Fault" within the 1945 Act is split into two limbs: "The first limb, which is referable to the defendant's conduct, comprises various acts or omissions which give rise to a liability in tort. The second limb, which is referable to the plaintiff's conduct, deals with acts or omissions which would, but for the Act, have given rise to the defence of contributory negligence. The first is directed to the basis of the defendant's liability, while the second is concerned with his defence on the ground that the damage was the result partly of the plaintiff's own negligence." As a general rule, a person to whom a duty of care is owed is generally under a corresponding duty to take reasonable care for his own safety which, if he intentionally breaches, he may be incapable of claiming any damages. However there are cases, as here, where the duty of care extends to taking reasonable care to prevent someone causing injury to themselves e.g. young people, the insane etc. There was no break in the chain of causation because the wrongful act (leaving a gap in the spy hole) created the opportunity for X to make a cord, of which suicide was the foreseeable consequence. See below for non fit violenti iniuria. Lord Hoffmann says that whereas it was the breach of duty of care that "caused" X's death, X was sufficiently at "fault" within the meaning of s.4 of the act to have the award reduced by half. Lord Hobhouse (dissenting): X had autonomous, free, unconstrained choice. He was not mentally ill, too young, misinformed and therefore he caused his own death. See below for volenti non fit iniuria Froom v Butcher [1976] QB 286: P wasn't wearing a seat belt and D, by his own fault, caused a car crash with P. P would not have been injured had he been wearing a seat belt. CA held that P's compensation would be reduced by 20% due to P's having partly "caused" (!) his own injury.

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