Revision Hub / Module 3 · Defences & Cross-Cutting Doctrines

Defences

Lecture L11 Burden of proof on D Reading: Horsey & Rackley ch 10; Nolan & Oliphant ch 26

Snapshot

Defences are the last stage of a negligence answer: only reached after C has proved duty, breach, causation and recognised damage, and the burden is on D. There are two species. Full defences (volenti, illegality, sometimes necessity) defeat the claim entirely. Partial defences (contributory negligence) reduce damages to the extent the court thinks just and equitable. Alongside these run the statutory bars — exclusion clauses under UCTA 1977 and the CRA 2015, and limitation under the Limitation Act 1980. Finish liability first; then address defences in this order: contributory negligence, volenti, illegality, exclusion, limitation.

1. Contributory negligence

Contributory negligence is the only general partial defence in tort. Before 1945 it was a complete bar; the Law Reform (Contributory Negligence) Act 1945 turned it into an apportionment regime.

Law Reform (Contributory Negligence) Act 1945, s.1(1)

Where damage results partly from C's own fault and partly from the fault of others, the claim is not defeated, 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". Section 4 defines "fault" as negligence, breach of statutory duty or other act or omission giving rise to liability in tort.

D must prove (i) C failed to take reasonable care for their own safety, judged objectively, and (ii) that failure was a contributing cause of the damage. Causal connection matters: in St George v Home Office [2008] EWCA Civ 1068 a prisoner's drug-history was not sufficiently connected to the prison's negligent monitoring; contrast Badger v MoD [2005] EWHC 2941 where C's lifelong smoking contributed to asbestos-related lung cancer.

Froom v Butcher [1976] QB 286

Facts: C, injured in a crash caused by D's negligent driving, had not been wearing a seatbelt.
Holding: Lord Denning MR laid down standardised reductions: 25% if the seatbelt would have prevented the injury altogether; 15% if it would have lessened severity; nil if it would have made no difference. Capps v Miller [1989] applied the tariff to motorcycle helmets.
Why it matters: The working tariff for seatbelt and helmet cases; illustrates "comparative blameworthiness" apportionment.

Reeves v Commissioner of Police of the Metropolis [2000] 1 AC 360

Facts: Police owed a duty to a known suicide-risk detainee but failed to close the cell hatch; he hanged himself.
Holding: The duty extended to preventing self-harm, so suicide did not break the chain of causation. Damages were reduced by 50%: C's suicide was a "fault" within s.4 even though he was of sound mind.
Why it matters: Intentional self-harm by a competent adult counts as fault under the 1945 Act; apportionment available even where the duty was to guard against C's own act.

In Sayers v Harlow UDC [1958] 1 WLR 623, C was trapped in a defective public-toilet cubicle and injured herself climbing out via the toilet-roll holder; the Court of Appeal treated her response as a reasonable reaction to the alarm D had created but reduced damages by 25% for the careless manner of her exit. In Stapley v Gypsum Mines Ltd [1953] AC 663, two miners ignored a safety instruction; the House of Lords reduced the deceased's damages by 80%, the canonical apportionment authority where C is a joint wrongdoer.

Child claimants are judged against the reasonably careful child of the same age. In Gough v Thorne [1966] 1 WLR 1387, a 13-year-old waved across the road by a lorry driver and hit by an overtaking car was held not contributorily negligent. Contrast Jackson v Murray [2015] UKSC 5, where the Supreme Court reduced a 13-year-old's damages by 50% (down from 90%), warning against placing the lion's share of responsibility on a child where the adult driver bore the primary risk-creating role.

2. Volenti non fit injuria

Volenti — "no injury is done to one who consents" — is a full defence. Per Lord Herschell in Smith v Baker: "one who has invited or assented to an act being done towards him cannot, when he suffers from it, complain of it as a wrong". D must prove (i) full subjective knowledge of the nature and extent of the risk; (ii) voluntary, free assumption of it; and (iii) agreement, express or implied, to waive any claim in negligence.

Smith v Charles Baker & Sons [1891] AC 325

Facts: An employee was injured by a stone falling from a crane operated negligently above him; he had complained but continued working.
Holding: Volenti rejected. Knowledge of a risk and continuing work is not consent; voluntary assumption requires freedom from economic compulsion, generally absent in employment.
Why it matters: Leading authority that volenti almost never succeeds in employee claims; agreement to waive is the gist.

ICI Ltd v Shatwell [1965] AC 656

Facts: Two qualified shotfirer brothers ignored their employer's express safety rules and statutory regulations to test detonators without shelter; one was injured and sued ICI on his brother's breach (vicarious liability).
Holding: The defence applied: the brothers freely accepted the risk between themselves and ICI was not personally at fault.
Why it matters: The rare successful volenti plea between employees — distinguishable from Smith v Baker because the risk was self-created and free from coercion.

Morris v Murray [1991] 2 QB 6

Facts: After heavy drinking, C accepted a flight in D's light aircraft; D was very drunk, took off in poor weather and crashed.
Holding: Volenti applied. C was not so drunk as to be unable to appreciate the obvious and grave danger; his voluntary boarding amounted to an implied waiver.
Why it matters: Marks the upper limit of consent — only an "obvious and glaring" risk supports volenti, and only outside the RTA 1988 s.149 zone.

Road Traffic Act 1988, s.149

Where passenger insurance is compulsory, any antecedent agreement purporting to negative or restrict liability — and any plea that the passenger willingly accepted the risk — is of no effect. Volenti is therefore statutorily barred in road-traffic claims by passengers; Dann v Hamilton [1939] 1 KB 509 (drunk-driver passenger) would today be decided as contributory negligence only.

3. Illegality (ex turpi causa non oritur actio)

Illegality bars recovery for damage flowing from C's own criminal conduct. It is a full defence applying across tort, contract and unjust enrichment.

Pitts v Hunt [1991] 1 QB 24

Facts: C, an 18-year-old pillion, encouraged D (16, uninsured, drunk) to ride a motorcycle dangerously to frighten pedestrians; they crashed.
Holding: Claim barred. C and D were participants in a joint criminal enterprise; no standard of care could sensibly be set between them.
Why it matters: Classic joint-criminal-enterprise authority — where C and D are joint participants in serious criminality and the harm flows directly from that activity, no duty arises.

Gray v Thames Trains Ltd [2009] UKHL 33

Facts: C developed PTSD after the Ladbroke Grove rail crash caused by D's admitted negligence. Two years later he stabbed a stranger and was convicted of manslaughter on grounds of diminished responsibility; he sued for losses linked to his detention and indemnity against the victim's family.
Holding: Claim barred. Lord Hoffmann formulated narrow (no recovery for damage that is the consequence of a sentence imposed for one's criminal act) and wider (no recovery for loss suffered in consequence of one's own criminal act) rules; both applied.
Why it matters: Pre-Patel leading authority — grounded in consistency between the criminal and civil systems.

Patel v Mirza [2016] UKSC 42

Facts: A nine-judge Supreme Court restitution claim: C had paid D to bet on share prices using inside information; the scheme failed and C sought his money back.
Holding: Claim allowed. Lord Toulson reformulated illegality as a policy-based trio of considerations: (a) the underlying purpose of the rule transgressed and whether denying the claim would advance it; (b) any other relevant public policy; (c) whether denial would be a proportionate response, weighing seriousness, centrality, intentionality and relative culpability.
Why it matters: Replaces "reliance" and "inextricable link" tests with an open-ended policy assessment — the modern framework.

Henderson v Dorset Healthcare NHS Foundation Trust [2020] UKSC 43

Facts: C, schizophrenic, killed her mother during a psychotic episode after the Trust's negligent failure to detain her; she was convicted of manslaughter on diminished responsibility grounds and sued for loss of liberty, amenity and damages payable to the estate.
Holding: Claim barred. Applying Patel, Gray remained good law: the consistency principle, the seriousness of manslaughter, and the close link between act and loss all weighed against recovery. Clunis v Camden & Islington HA [1998] QB 978 followed.
Why it matters: Severe mental illness does not displace the illegality bar where the criminal act is formally attributable to C; reaffirms Gray within Patel.

Compare Delaney v Pickett [2011] EWCA Civ 1532 (cannabis in the car incidental — claim allowed) and Hounga v Allen [2014] UKSC 47 (illegal worker's tort claim allowed because barring it would conflict with anti-trafficking policy). Stoffel & Co v Grondona [2020] UKSC 42 applied Patel to permit a claim despite mortgage fraud — the trio cuts both ways.

4. Necessity

A narrow common-law defence: where D acts reasonably to avert greater harm to C, a third party, or property, the act is privileged. Mostly encountered in trespass and battery (emergency medical treatment of an unconscious patient: F v West Berkshire HA [1990] 2 AC 1; firefighters demolishing buildings: Cope v Sharpe (No 2) [1912] 1 KB 496). It has limited application in negligence, must be proportionate, and does not cover careless execution of a necessary act.

5. Exclusion and limitation of liability

D may attempt to exclude or restrict liability in advance by contract term or by notice. Two statutes police such attempts.

Unfair Contract Terms Act 1977, s.2

In a business context, s.2(1) provides that a person cannot by any contract term or notice exclude or restrict liability for death or personal injury resulting from negligence. Section 2(2) provides that liability for other loss or damage caused by negligence may be excluded only insofar as the term or notice satisfies the requirement of reasonableness (s.11). UCTA applies B2B and to non-contractual notices addressed to business visitors.

Consumer Rights Act 2015, s.65

In a consumer trader-to-consumer context, s.65(1) prohibits a trader from excluding or restricting liability for death or personal injury resulting from negligence by a contract term or notice. Section 62 then subjects other terms to a fairness test. Together, s.2 UCTA and s.65 CRA mean that liability for death or PI caused by negligence can never be contracted out of, in either business or consumer settings.

6. Limitation periods

Limitation Act 1980

s.2 — actions in tort: the basic limitation period is six years from the date on which the cause of action accrued (i.e. when the damage was suffered). s.11 — personal-injury claims: three years from accrual or from the claimant's date of knowledge, whichever is later. s.14 — defines date of knowledge: when C first knew the injury was significant, was attributable to the act or omission alleged to constitute negligence, and knew the identity of the defendant. s.33 — gives the court a wide discretion to disapply the s.11 time-bar in PI cases where it would be equitable to do so, having regard to factors including delay, prejudice, conduct of D, and the cogency of evidence.

Limitation is almost always pleaded in stale PI claims; s.33 discretion is the safety-valve (see A v Hoare [2008] UKHL 6, re-routing historic sexual-abuse claims to ss.11/33).

7. Application framework

Establish liability first. Defences are reached only after duty, breach, causation and damage are made out. Never lead with a defence.
Identify candidate defences. Run through the menu: contributory negligence (almost always worth raising in PI), volenti, illegality, necessity, exclusion, limitation. Cross out those that obviously do not fit.
Take each in turn. For each, state the doctrinal test, the burden (on D), apply to the facts, and reach a conclusion. Be specific about whether the defence is full or partial.
Quantify if possible. For contributory negligence, suggest a percentage by analogy: Froom v Butcher 25%/15%; Reeves 50%; Stapley 80% in joint-fault cases; Jackson v Murray for child claimants.
Close with statutory bars. Always note exclusion and limitation last — they are knock-out points the examiner expects to see flagged even if not in issue.

8. Common pitfalls

Treating volenti as available wherever C "knew of the risk". Knowledge is necessary but not sufficient. The defence requires voluntariness and agreement (express or implied) to waive negligence — the high bar that defeated Smith v Baker and that almost never lets volenti succeed in employment cases.

Forgetting Road Traffic Act 1988 s.149. Volenti is statutorily excluded for passengers in vehicles covered by compulsory motor insurance, so cases like Dann v Hamilton can no longer be argued as volenti at all — only as contributory negligence.

Citing Tinsley v Milligan or the old "reliance" test for illegality. Since Patel v Mirza [2016] UKSC 42 the test is the open-textured trio of considerations, applied as a single policy assessment. Henderson confirms Gray survives within that framework.

Conflating contributory negligence with volenti. Contributory negligence is a partial defence reducing damages and applies on objective fault. Volenti is a complete defence and turns on subjective consent. They can run in the alternative — never as a single point.

9. Exam checklist

Confirmed liability is established before turning to defences (burden now on D).
Contributory negligence considered, with a suggested percentage drawn from Froom, Reeves, Stapley or Jackson v Murray.
Volenti tested against the three requirements (knowledge, voluntariness, agreement) and against RTA 1988 s.149 if a road accident.
Illegality considered through the Patel v Mirza trio of considerations, citing Gray and Henderson.
Necessity flagged where D acted to avert greater harm (rare in negligence; common in trespass).
Exclusion clauses tested under UCTA 1977 s.2 (business) or CRA 2015 s.65 (consumer); death/PI exclusions void in both.
Limitation diary noted: 6 years (s.2) or 3 years for PI (s.11) from date of knowledge (s.14), with s.33 discretion to disapply.
Closing line states whether each defence succeeds in full, in part, or not at all — and quantifies any reduction.