Tort Week 7 – Defences

The Premiership football cup final is being held at Sloane Rangers Stadium. Lampost, in his
eagerness to prevent Fabulous from scoring a goal, lunges with his legs apart in an attempt
to tackle Fabulous. Fabulous’ leg is trapped between Lampost’s legs and he falls breaking
that leg. Lampost receives a red card as a result of the tackle.
Fabulous is given medical treatment and his broken leg is put in a cast. Fabulous finds it hard
to carry out life as normal and a week later gets into his car to run some errands. He finds it
hard to drive with his leg in the cast and on two occasions almost misses the brake pedal.
Shortly afterwards he completely misses the brake pedal and crashes breaking his arm.
Meanwhile, Wazza, who is disillusioned with life in the Premiership, decides to rob a bank
for fun with his teammate Bucky. The afternoon before the planned robbery, Bucky drives
Wazza to a gun shop to buy a shotgun to be used in the robbery. Both Bucky and Wazza
have been drinking heavily that morning and Bucky, encouraged by Wazza, is driving at
80mph in a 30mph zone. On the way to the gun shop Bucky loses control of his car and
crashes. He is not injured but Wazza bangs his head and suffers brain damage. Wazza was
not wearing a seatbelt at the time as he dislikes them. Unknown to him the seatbelt was
actually broken, and he would not have been able to wear it if he had tried. The brain
damage affects Wazza’s personality. Prior to the accident he had suffered from bouts of
depression. Six months after the accident he commits suicide.

Advise the parties as to any tortious rights and liability arising.

My answers were amended in the tute, these are

correct.

1. Fabulous v Lampost re tackle

Tort: Negligence (not trespass to the person because there is no intention here).
Loss: PI
DoC: Yes, precedent as per Condon v Basi
SoC: Professional standard
Breach: As judged by a body of reasonable professionals (Bolam limb 2)
Causation: TWO issues. Causation of broken leg and causation of broken arm.

 Broken leg. Seems clear factual causation (Barnett v Chelsea), and also legal
causation since there are no NAIs.
 Broken arm. Seems factual causation, but for the tackle, he wouldn’t have crashed
the car, OR could also say that the breach materially contributed to the broken arm.
Legal causation? Ultimately is does not seem unforeseeable that Fabulous wanted
to drive the car. Was it unreasonable? Court could say it’s McKew unreasonable or
Spencer v Wincanton reasonable.
Remoteness: No, only the type of injury has to be reasonably foreseeable, i.e. personal
injury as per Page v Smith, although note the court can change this as per Tremain v Pike.
Not discussed in tute.
Defences: Consent?

 Had capacity to give consent to risks – tick.

 Had full knowledge of nature and extent of risks – I mean he probably does have full
knowledge of the risks of playing football given he does it professionally.
 Agreed, voluntarily, to risk of injury. I mean clearly he agreed to play football.
Smoldon v Whitworth shows there is consent for participants in sporting events to
the risks inherent in the game. Those probably include tackles that earn a red card.
BUT note Condon v Basi, assumed that footballers do not consent to something that
happens outside the rules of the game and demonstrates reckless disregard for C’s
safety. If this is the case here he did not consent.
DONE IN TUTORIAL: CONSENT
For Broken Leg:

 Capacity (Reeves)? Tick

 Knowledge of nature/extent of risk (Dann v Hamilton)? Tick – he’s a professional
footballer.
 Agreement? You’d probably agree to the ordinary risk of play but no agreement to
something outside – Smoldon v Whitworth.
 Voluntary agreement? N/a here really. More for employment cases.
 SOOOO defence is v unlikely to work.
For Broken Arm:

 Capacity? Tick.
 Knowledge of nature/extent of risk? Tick – he’s already slipped off the break, ‘he
finds it hard to drive with his leg in a cast’. A bit like Morris v Mauray, obvious that
this is dangerous, he’s being wildly irresponsible. Other side will try to argue that
he’s a wealthy football player, he could afford a taxi, yet this should not negate that
he should be able to lead an independent life.
 Agreement? Seems pretty hard to argue that he did not agree.
 Voluntary? Yep.
  SOO it probably works BUT court might still say that they don’t want to obliterate
consent, instead look at contributory negligence.
CONTRIBUTORY NEGLIGENCE

 Established by S1(1) Law Reform (Contributory Negligence) Act 1945. Jones v Linox
applied it.
 Test: Fault element, causal element, reduction element.
Re Arm

 Fault? Has Fabulous failed to take reasonable care for his own safety? Yep.
 Causation? Did this failure cause the lost? Yep looks like it.
 Reduction? I.e. how much will courts reduce damages by? Tends be decided on what
is just and equitable and the relative blameworthiness of the parties. See Froom v
Butcher guidelines.

Illegality not relevant.

C’s contributory negligence?

 Only relevant for the broken arm

 Jones v Linox: Did C fail to take reasonable steps for his own safety? Yes, he drive
knowing it was difficult for him. Did the failure contribute to the damage? Clearly,
yes.
 So this is more successful!

Meanwhile, Wazza, who is disillusioned with life in the Premiership, decides to rob a bank
for fun with his teammate Bucky. The afternoon before the planned robbery, Bucky drives
Wazza to a gun shop to buy a shotgun to be used in the robbery. Both Bucky and Wazza
have been drinking heavily that morning and Bucky, encouraged by Wazza, is driving at
80mph in a 30mph zone. On the way to the gun shop Bucky loses control of his car and
crashes. He is not injured but Wazza bangs his head and suffers brain damage. Wazza was
not wearing a seatbelt at the time as he dislikes them. Unknown to him the seatbelt was
actually broken, and he would not have been able to wear it if he had tried. The brain
damage affects Wazza’s personality. Prior to the accident he had suffered from bouts of
depression. Six months after the accident he commits suicide.
2. Wazza v Bucky
Tort: Negligence
Loss: P.I, and psychiatric injury
DoC: Nettleship v Weston
SoC: Reasonable driver, clearly breached. Our criticisms are that he drove 80 in a 30, drove
while drunk, and not a roadworthy car because seatbelts aren’t working.
Causation: Neg driving has clearly caused Wazza to bang his head, factually and legally. Has
also factually and legally caused his depression and suicide (Corr v IBC vehicles is very
similar, and there the suicide was six years later).
Remoteness: As per Page v Smith, only p.i. has to be foreseeable for psychiatric injury too,
so no problems there. Also, thin skull rule applies as per Smith v Leech Brain.
Defences, oh my god.
Consent/volenti:
Brain damage

 Barred by S149 Road Traffic Act. No consent possible.

Suicide

 Wazza does not have capacity to consent, he has brain damage.

Illegality/ex turpi
Brain damage

 Is C’s behaviour/act illegal or grossly immoral? Yes, encouraging someone to drive

recklessly as part of a robbery.
 Is there a contribution by the behaviour to his brain damage? Yes, it’s like Pitts v
Hunt, NOT like Delaney v Pickett. A point of distinction is encouragement.
Suicide

 Suicide is not an affront the public conscience.

Contributory negligence
Brain Damage

 Clearly failed to take good care

 Is there a connection to the loss? Yes, he could have sat in a different seat or said no
to the journey.
Suicide

 He has failed to take good care for his own safety by committing suicide.
Consent:

 Wazza had capacity to consent to risks.

 Did he have full knowledge of nature and extent of risk? For implied risk to be the
case, the chances of risk have to be extremely high ‘meddling with an unexploded
 bomb’ (Dann v Hamilton). Might be the case here given that Bucky has been drinking
heavily, which Wazza knows about.
 WAIT OH NO – consent is automatically not available under S149 Road Traffic Act.
Ignore above analysis.
 FAILS
Illegality:

 Has C Committed an illegal act? Yes, the robbery, and also buying a shotgun.
 Is there a direct link between illegal act and loss suffered? I mean not really, it’s a bit
like Delaney v Pickett where although illegality provided occasion for the injuries, it
did not cause them.
 Fails.
 UNLESS we take the illegal/immoral act act to be encouraging D to drive recklessly.
It’s like Pitts v Hunt. So loss caused directly by that act. CHECK IN TUTE.
 So SUCCEEDS.
Contributory negligence:

 Seatbelt
 Did C fail to rake reasonable steps for his own safety? Yes, didn’t do seatbelt.
 Did this failure contribute to C’s damage? No, it didn’t make a difference.