Acts of the claimant: Difference between revisions

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In the English law of negligence, the acts of the claimant may give the defendant a defence to liability, whether in whole or part, if those acts unreasonably add to the loss.

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References

Cane, Peter. (1999). Atiyah’s Accidents, Compensation and the Law. Sixth edition. Cambridge: Cambridge University Press. ISBN 0-521-60610-1
Deakin, Simon; Johnston, Angus & Markesinis, B. S. (2003). Markesinis and Deakin's Tort Law. Oxford: Clarendon Press. ISBN 0-19-925712-4
Hart, H. L. A. & Honore, A. M. (1985). Causation in the Law. Oxford: Clarendon Press.
Luckham, Mary. "Informed consent to medical treatment and the issue of causation: the decision of the House of Lords in Chester v Afshar [2004] UKHL 41" [1]
Rogers, W. V. H. Winfield and Jolowicz on Tort. London: Sweet & Maxwell. ISBN 0-421-76850-9
Weir, Tony. (2002). Tort Law. Oxford: Oxford University Press. ISBN 0-19-924998-9

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-==The defence of contributory negligence==
-[[Contributory negligence]] used to be a complete defence, but the Law Reform (Contributory Negligence) Act 1945 allows the court to apportion liability for damages between the claimant and the defendant where the claimant's negligence has materially added to the loss or damage sustained. Section 1 provides:
-:(1) Where any person suffers damage as the result partly of his own fault and partly of the fault of any other person or persons, a claim in respect of that damage shall not be defeated by reason of the fault of the person suffering the damage, but the damages recoverable in respect thereof shall be reduced to such extent as the court thinks just and equitable having regard to the claimant’s share in the responsibility for the damage..."
-The reference in s1(1) to the claimant's share in the "responsibility for the damage" requires a court to consider what contribution the claimant made to their loss or damage, and the degree of blameworthiness. For these purposes, the only requirement is that the claimant's actions contribute to the damage. There is no requirement that the claimant must also have contributed to the initial sequence of events that caused the loss or damage. In ''Sayers v Harlow UDC'' (1958) 1 WLR 623 having paid to use a public toilet, a 36-year-old woman found herself trapped inside a cubicle that had no door handle. She attempted to climb out by stepping first on to the toilet and then on to the toilet-roll holder, which gave way. The court held that the injuries she suffered were a natural and probable consequence of the defendant's negligence, but that the damages would be reduced by 25% since the claimant had been careless in depending for support on the toilet-roll holder.
-In some situations, the common law has been overtaken by statute. In ''Froom v Butcher'' (1976) QB 286  [[Tom Denning, Baron Denning|Denning MR]] assessed the percentage contribution made by a claimant who failed to wear a seat belt (at p295):
-:"Whenever there is an accident, the negligent driver must bear by far the greater share of responsibility. It was his negligence which [sic] caused the accident. It also was a prime cause of the whole of the damage." Thus, at p296: "(At times) the evidence will show that the failure made all the difference. The damage would have been prevented altogether if a seat belt had been worn. In such cases I would suggest that the damages should be reduced by 25%. But often the evidence will only show that the failure made a considerable difference...In such a case I would suggest that the damage attributable to the failure to wear a seat belt should be reduced by 15%."
-The wearing of seat belts then became compulsory (see the Wearing of Seat Belts Regulations 1983 and the Motor Vehicles (Wearing of Seat Belts in Rear Seat by Adults) Regulations 1991). The current thinking would not support limiting damages by a figure of 25% and if, for example, the claimant was thrown out of the vehicle because no seat belt was worn, a substantial finding of contributory negligence should follow. Indeed, in ''Hitchens v Berkshire County Council'' the High Court expressed some difficulty in following the logic of Lord Denning's figure of 25% although the [[ratio decidendi]] was considered binding. There are two further principles to consider:
-*Where the claimant has voluntarily taken on the risks that cause him injury, ''[[volenti non fit injuria]]'' may extinguish the [[cause of action]].
-*Where the claimant was engaged in illegal activity at the relevant time, the principle of ''[[ex turpi causa non oritur actio]]'' may extinguish the cause of action.
-===Volenti===
-If a claimant is ''volens'', they have willingly accepted the risk of being injured by the foreseeable behaviour of the defendant. This means that there is considerable overlap between contributory negligence and ''volenti''. Because prior agreement may be taken to extinguish the cause of action, its application can sometimes result in injustice. But contributory negligence has the capacity to be more fair because instead of extinguishing the action, it merely reduces the award of damages by the percentage of contribution made to the loss or damage by the claimant. In ''Reeves v Commissioner of Police of the Metropolis'' (2000) 1 AC 360, after two failed attempts, the claimant succeeded in committing [[suicide]] in his cell because of the defendant's failure to take proper precautions while the prisoner was on "suicide watch". The suicide was not a ''novus actus'' because preventing it was inevitably a part of the defendant's duty of care, and the court cannot equate a breach in the duty with a breach in the causal chain. The general rule remains that people of full age and full intellectual capacity must look after themselves and take responsibility for their actions. Hence, duties to safeguard people from causing harm to themselves will be very rare. But once it is obvious that this is one of those rare cases, the defendant cannot argue that the breach of the duty could not have been the cause of the harm because the victim caused it to himself. Thus, the defendant will be liable for the consequences of their negligence, however objectively unreasonable the claimant’s act may be, although damages may be reduced to take account of the claimant’s contributory negligence: in this case, damages were reduced by 50%.
-In ''Morris v Murray'' (1990) 3 AER 801 the claimant helped an obviously drunken pilot get into a small aeroplane, which crashed as it attempted to take off. This was a classic case for ''volenti'' to apply. The court held that the claimant must have known the condition of the pilot and voluntarily took the risk of negligence by agreeing to be a passenger. However, in driving cases, s149 Road Traffic Act 1988 denies the effectiveness of any agreement between a passenger of a motor vehicle and the driver that seeks to exclude liability for negligence where insurance cover for passengers is compulsory. This applies both to express agreements between driver and passenger (e.g. where the driver displays a notice in the vehicle stating that passengers travel at their own risk) and to implied agreements in cases such as ''Pitts v Hunt'' (1991) 1 QB 24, where the claimant was a passenger on a motor cycle knowing that the driver was drunk, uninsured, and without a current licence. The defendant negligently collided with another vehicle, killing himself and injuring the passenger. Dillon LJ. dismissed the claim on the ground of ''ex turpi causa'' because there was a joint [[common purpose]]. This is a public policy test of "public conscience" because the claimant might otherwise benefit from the unlawful behaviour willingly undertaken. Similarly, under ss1 and 2 Unfair Contract Terms Act 1977, commercial agreements seeking to exclude liability in negligence are also void. But if the claimant signs an express agreement identifying the nature of the risks likely to be run and accepting those risks, this is evidence that the claimant is ''volens'' and has chosen to run the risk not by compulsion or as the lesser of two or more evils i.e. the contractual clause is an express ''volenti'' exclusion clause for the purposes of tortious liability. Because knowledge of a risk does not of itself imply consent, the UCTA prevails and such clauses do not automatically exclude liability. This would particularly apply in medical cases where [[informed consent]] is traditionally evidenced in a written form (Luckham: 2004).
-===Ex turpi causa===
-{{main|illegality in English law}}
-The policy is intended to prevent a claimant from seeking any benefit from their own unlawful acts. For example, in ''Meah v McCreamer (No. 2)'' (1986) 3 AER 897 (1986) 1 All ER 943 the claimant had been injured in a car accident and later sexually assaulted three women. He was denied the right to claim an indemnity from the driver of the car against the claims for compensation made by the victims of his criminal actions. The problem is that if the medical evidence of the head injury establishes that the criminal conduct would not have arisen "but for" the tort alleged then, in principle, damages should follow. If the claimant was not responsible for his behaviour and it had merely been anti-social rather than criminal behaviour, then damages would have been available, and it seems inconsistent to deny recovery because the involuntary behaviour happened to be "illegal". In ''Thankwell v Barclays Bank Plc.'' (1986) 1 AER 676, Hutchinson J. said (at p687) that the court would deny a claim when, "...in all the circumstances it would be an affront to the public conscience if by affording him the relief sought the court was seen to be indirectly assisting or encouraging the plaintiff in his criminal act." The logic of the "affront" may be more apparent in ''[http://www.bailii.org/ew/cases/EWCA/Civ/1997/2918.html Clunis v Camden and Islington Health Authority]'' (1998) 3 AER 180 where, two months after the claimant had been discharged from hospital after detention under s3 Mental Health Act 1983, he killed a stranger. He pleaded guilty to [[manslaughter in English law|manslaughter]] on the ground of [[diminished responsibility in English law|diminished responsibility]]. A claim against the hospital was struck out because it was based on the claimant's own illegal act. Similarly, in ''Revill v Newbery'' (1996) 2 WLR 239 a burglar was shot by an elderly man. In general terms, it is appropriate to deny burglars relief, e.g. that the injuries prevent the burglar from pursuing their successful career in crime may be true, but it would be an affront if such loss of earnings were recoverable. However, it would be a different matter if the householder uses excessive force and inflicts very severe injuries. In such cases, some relief for the injuries should be allowed, but subject to reduction for contributory negligence.
 ==References==