TORT LAW

LECTURE 12 -
DEFENCES PART 2
Ms Gallop
EXCLUSION OF LIABILITY
 A defendant may seek to avoid all potential
liability in the future by excluding that
liability.
 This is most common in the form of a contract
or agreement between the parties, but can
also be achieved through a notice that is
appropriately obvious and clear
 E.g. The owner of a supermarket might place a
notice in the car park stating “The Owner of
the supermarket accepts no liability for any
damage to cars howsoever caused whilst in this
carpark”.
 Any attempt to exclude liability, however,
will be restricted by the Unfair Contract
Terms Acts 1977
 Section 2 of the Act states that liability for
either death or personal injury caused by
negligence cannot be excluded
 Similarly for the case of other loss or damage
a person cannot exclude liability for
negligence, unless the term satisfies the
requirement of reasonableness
 Finally as regards a notice or contract
purporting to restrict liability, a persons
awareness of the notice does not indicate his
voluntary acceptance of any risk
 Thus we can see that Section 2 of the Act
prevents the exclusion or restriction of
liability, altogether regarding death or
personal injury – Section 2(1)
 Additionally any other damage is subject to
the test of reasonable under s.2(2)
 Additionally under Section 1 of the Act
exclusion of liability of business liability must
be reasonable for business:
 (a) done or to be done by a person in the
course of business
 (b) from the occupation of business premises
used for business purposes
VOLENTI AND EXCLUSION OF
LIABILITY
 Johnstone v Bloomsbury Health Authority – the
plaintiff was a junior hospital doctor with the
defendant health authority. This required the
doctor to work 40 hours a week and additionally
to be available for a further 48 hours per week
overtime.
 The plaintiff alleged that his health had been
adversely affected by the long working hours, and
he thus brought a claim alleging that the
defendant had breach their duty to take all
reasonable care for his safety and well-being. The
defendant cited the contract as their defence to
that claim.
 He sought a declaration that the working
hours clause was contrary to section 1(2) of
UCTA.
 Firstly he suggested that the terms operated
as a restriction or moderation of the general
duty owed which would fall under Section
2(1) of UCTA and thus be unenforceable.
 Secondly he suggested that the clause might
operate as an assumption of risk clause, that
is that he the plaintiff assumed the risk of
injury by agreeing to work 88 hours a week.
 However, as discussed last week, mere
knowledge of the risk does not amount to
assenting to the risk, and as such the plaintiff
could not be understood to have assented to
the risk.
 Even if the volenti clause was assented to, it
would still be subject to the exclusionary rule
in section 2(1).
 Before the case was concluded the case was
settled out of court, but generally it is
understood that a volenti clause is subject to
section 2(1).
 White v Blackmore –
 The deceased was an experienced racing
driver and member of a local club. He went
in the morning to register for an afternoon
race and had his name registered. He
returned in the afternoon with a group of
other people and paid their admission fees,
but did not pay admission as a competitor.
 At the entrance a notice stated “Warning to
the public. Motoring is dangerous. It is a
condition of admission that all persons
having any connection with the promotion
and/or organisation and/or conduct of the
meeting... Are absolved from all liabilities
arising out of the accidents causing damage
or personal injury (fatal or otherwise)
howsoever caused to spectators or
ticketholders”.
 In the afternoon the deceased was killed
when, between his races, a car collided with a
safety rope and threw the deceased. At the
time of the accident the deceased was not
behind the enclosure ropes, despite warnings.
 Held = The defence of volenti was
unsuccessful. Whilst it he may have
been volens in relation to the risks inherent in
racing, he had not accepted the risk of the
negligent construction of the ropes. However
the defendant had successfully excluded
liability.
ILLEGALITY
 Illegality is also known as Ex Turpi Non Causa
Non Oritur Actio
 This translates as no action can be founded
upon a wicked act
JOINT ILLEGAL ENTERPRISE
 Pitts v Hunt – the 18 year old claimant was
severely injured when the motorcycle he was
a passenger on collided with another vehicle.
The motorcycle driver, who was 16 years old,
who had been drinking with the claimant
earlier, and who the claimant knew was
uninsured and unlicensed. Under the
encouragement of the claimant the deceased
drove the motorcycle in a dangerous manner
to frighten members of the public.
 The Court of Appeal found that in this case
the defence of illegality could be
successfully used.
 However in general the defence of illegality
has only been successful in defeating claims
in exceedingly rare cases.
 Additionally the decision in Pitt must be read
in light of the ECJ decision in Candolin which
limits the applicability of defences which
would deprive the claimant of the benefit of
compulsory motor insurance.
 In general the Court of Appeal held that there
should be a defence of illegality as they could
not set a standard of care in cases of illegal
undertaking. For example what standard of
care does a getaway driver owe to fellow
participant in a burglary?
 Also Beldam LJ suggested the ‘public
conscience’ test – in that it would shock the
public conscience if the claimant was
permitted to recover in such a case. This
argument was rejected by the majority
however.
 The public cconscience test was rejected by
the House of Lords, however, in the case of
Tinsley v Milligan.
 In the Canadian case of Hall v Herbert the
plaintiff and the defendant had been drinking
and driving a ‘souped-up, muscle car’ when it
stalled. It was decided to roll start the vehicle
with the plaintiff inside in the driver’s sear,
however control of the car was lost and in
crashed down an incline. The Supreme Court
held that illegality relating to drink-driving
did not bar the claim.
ILLEGALITY BY THE CLAIMANT
ALONE
 Revill v Newbery -
Mr Newbery was a 76 year old man. He owned an allotment
which had a shed in which he kept various valuable items.
The shed was subject to frequent break ins and vandalism.
Mr Newbery had taken to sleeping in his shed armed with a
12 bore shot gun.
Mr Revill was a 21 year old man who on the night in question
went to the shed at 2.00 am in order to break in. Mr
Newbery fired through a small hole in the door to the shed.
The shot hit Mr Revill in the arm. It passed right through the
arm and entered his chest. Mr Revill pleaded guilty and was
sentenced. Mr Newbery was acquitted of wounding. Mr Revill
brought a civil action against Mr Newbery for the injuries he
suffered. Mr Newbery raised the defence of ex turpi causa,
accident, self-defence and contributory negligence.
 It was held that in this case the defence of
illegality was not applicable.
 The Court of Appeal allowed the plaintiff's
appeal, holding that the defendant
was negligent to have shot blindly at body
height, without shouting a warning or
shooting a warning shot into the air, and that
the response was out of all proportion to the
threat.
 Additionally Neill LJ stated “As I have already
indicated, a person other than an occupier owes a
similar duty to an intruder such as Mr. Revill. In
paragraph 32 of their 1976 Report the Law
Commission rejected the suggestion that there
should be no duty at all owed to a trespasser who
was engaged in a serious criminal enterprise.“
 Evans LJ stated “it is one thing to deny a plaintiff
any fruits from his illegal conduct, but different
and more far-reaching to deprive him even of
compensation for injury which he suffers and
which otherwise is entitled to recover at law”.
 In the later case of Clunis v Camden and
Islington Health Authority the claimant
stabbed a stranger to death. The claimant
had a long history of mental health
problems, and was convicted for
manslaughter on grounds of diminished
responsibility. He later sued the local health
authority on the ground of diminished
responsibility alleging that failure to care for
him properly caused him to commit the
murder with which he was now charged.
 The case was struck out partly on the basis
of ex turpi non causa. The court held that
the court ought not to allow itself to be
made an instrument to enforce obligations
alleged to arise out of the plaintiff’s own
criminal act and we would therefore allow
appeal on this ground.