The English Law on Defences - Case Study Example

English Law on Defences to a Claim in Negligence The English Law on defences to a claim in negligence was said to be a confused muddle, in that only contributory negligence makes any coherent sense at all. To better understand if this statement is true, one needs to examine first what are the defences used to a claim in negligence apart from contributory negligence. It is important to study the case laws which explain the decisions in arriving at a grant or denial of claim in negligence. One of the known defence available to a negligence claim is contributory negligence. The Law Reform (Contributory Negligence) Act 1945 is the source of information regarding contributory negligence (Stanton, KM 2004, pp. 324-341). The relevance of causation has been focused after the Act of 1945 which is reflected in the case Jones v Livox Quarries Ltd [1952] 2 Q.B. 608 CA (McQuater, J 2009, pp. C34-39). The said case focused on the causal link between “fault” and “damage”, wherein a car passenger, even though not accountable for the injuries suffered as a result of an accident, contributory negligence will be considered especially ‘if the injuries appear to have been worse than they would have been had a seat belt been in use’ (Jones v Livox Quarries Ltd [1952]). However, even if there is a finding of ‘fault’, if the use of a seat belt could not have prevented the injuries that happened, the causal link will be absent and a finding of contributory negligence would not be appropriate (McQuater, J 2009, pp. C34-39). This is an application of the ‘but for’ test, which is often utilised to establish causation especially in finding primary liability (McQuater, J 2009, pp. C34-39). The decision in Ryan St George v The Home Office (2007/CA 2008, RCJQB) provides the different themes on the law on contributory negligence and recommends a consideration of several factors (McQuater, J 2009, pp. C34-39). First, ‘there must be ‘fault’ on the part of the claimant within the meaning of this word as provided in the 1945 Act’ (Ryan St George v The Home Office (2007/CA 2008, RCJQB). As held in the case of Jones, ‘momentary inattention will not amount to fault’ even if the claimant does not act as a reasonable, prudent person would, which might permit the others the possibility of being careless (Jones v Livox Quarries Ltd [1952]). Second, the claimant’s ‘fault’ together with the ‘defendant’s breach of duty must have caused or contributed to the relevant damage’ (McQuater, J 2009, pp. C34-39). Third, the ‘fault’ must be adequately combined with events that results in primary liability, mainly in time and space, in that it can correctly be considered ‘as a cause of the damage’ which resulted, instead of merely a ‘part of the background circumstances, history or events’ (McQuater, J 2009, pp. C34-39). Fourth, aside from the claimant’s ‘fault’ ‘which caused or contributed to the damage suffered’, there must also be a finding that reducing the damages is ‘just and equitable’ which otherwise would have been ‘payable to the claimant’ taking into consideration both the ‘causative potency of the acts or omissions of the claimant and defendant respectively’ and ‘the blameworthiness of each’ (McQuater, J 2009, pp. C34-39). Lastly, if the said factors are established and a reduction of the claimant’s damages is found to be ‘just and equitable’, the court then must evaluate ‘what the deduction should be’ (McQuater, J 2009, pp. C34-39). Clearly, the factors which must be satisfied for contributory negligence to apply as a defence to a claim of negligence are clear and coherent especially as applied in the case laws. Another defence to a claim of negligence is consent which may be ‘from assumption of risk or the so-called ‘volenti non fit iniuria’ to exclusion clauses and notices’ (Stanton, KM 2004, pp. 324-341). This cannot however, be considered as defence since as a general principle, ‘a person cannot avoid responsibility for a duty which has been placed upon him by Parliament by obtaining another person's agreement which purports to exempt him from any liability created by that duty’ (Stanton, KM 2004, pp. 324-341). The source of authority for this view is the industrial injury context wherein ‘consent is generally not recognised as a defence to negligence claims based upon the common law obligation to provide a safe system of work’ (Stanton, KM 2004, pp. 324-341). In both Baddeley v Earl Granville (1887) 19 Q.B.D. 423 and Wheeler v New Merton Board Mills Ltd [1933] 2 K.B. 669, the Court held that ‘it would be against public policy to recognise an implied agreement whereby an employee would exempt an employer from fulfilling his strict statutory obligation’ (Baddeley v Earl Granville (1887); Wheeler v New Merton Board Mills Ltd [1933]). The same treatment would be made in case a party makes ‘an express agreement or use of an exclusion clause’ (Stanton, KM 2004, pp. 324-341). Although some statutes such as Consumer Protection Act 1987, ss.7 and 41(4) and Health and Safety at Work Act 1974, s.47(5) bars the use of such defence, no determination has been made on whether such provisions were ratified ‘as a matter of caution’ or would work as a defence if not expressly barred (Stanton, KM 2004, pp. 324-341). Consent as a defence is therefore not clear because the case laws have not really clarified as to whether this defence can still be used even if not expressly barred in statutes. Thus, further examination of consent as a defense is needed. Another defence to a claim of negligence is ‘illegality’. In Clunis v Camden & Islington Health Authority [1998] P.N.L.R. 262, the claimant was required to ‘plead his conviction for manslaughter’ to bolster his claim regarding the aftercare he received as an ‘in-patient psychiatric care.’ In this case, Clunis stabbed Zito and was later on convicted of manslaughter (Clunis v Camden & Islington Health Authority [1998]). He then alleged that Camden & Islington Health Authority failed to properly care for him thereby causing him to commit such a murder for which he was charged (Clunis v Camden & Islington Health Authority [1998]). The Court of Appeal denied the claim on the ground of ex turpi causa (Clunis v Camden & Islington Health Authority [1998]). The court ‘did not allow itself to be made an instrument to enforce obligations alleged to arise out of the claimant’s own criminal act’ (Lunney, M and Oliphant, K 2008, p. 333). However, even if recognized as a defence based on public policy considerations, its exact scope and content was said to be unclear (Davies, PS 2009, pp. 556-560). The Law Commission has conditionally suggested that ‘greater transparency and consistency be attained through incremental reform by the judiciary’ (The Law Commission 2009, CP No. 189, p. 146); The Law Commission 2001, CP No. 160, which recommended legislative reform). The case of Gray v Thames Trains Ltd [2009] UKHL 33; [2009] 3 W.L.R. 167 provides for another example where illegality was considered as a defence in a negligence claim. Gray was a victim of the Ladbroke Grove rail crash on October 5, 1999, because of the defendants’ negligence (Gray v Thames Trains Ltd [2009]). He endured minor physical injuries and post-traumatic stress disorder (PTSD) (Gray v Thames Trains Ltd [2009]). Mr Gray was then absent from work for a period of time (Gray v Thames Trains Ltd [2009]). On August 19, 2001, Mr Gray stabbed a person to death reasoning that it was the effect of his psychiatric illness (Gray v Thames Trains Ltd [2009]). He pleaded guilty to manslaughter based on diminished responsibility, thus the criminal court ordered that he be in custody of the hospital and subjected to a restriction order (Gray v Thames Trains Ltd [2009]). Mr Gray then sued Thames Trains Ltd for loss of earnings suffered both before and during his detention (Gray v Thames Trains Ltd [2009]). The defendants countered that any loss of earnings after Mr Gray’s commission of homicide on August 19, 2001, would be ex turpi causa and hence, could not be recovered (Gray v Thames Trains Ltd [2009]). Mr Gray wanted to avoid the application of the illegality defence reasoning that his earning capacity had already been destroyed prior to the killing and that the loss of earnings was caused by the PTSD, not the manslaughter (Gray v Thames Trains Ltd [2009]). Although manslaughter did not interrupt the chain of causation from the negligence of the defendants to the claimant's lost earnings, the defendants argued that Mr Gray's voluntary and deliberate crime clearly had an impact on his ability to earn, and that he should endure the consequences of his illegal act (Gray v Thames Trains Ltd [2009]). In other words, they claimed that Mr Gray's claim for lost earnings after August 19, 2001 should fail because of the defence of illegality. On the issue on whether this defence of public policy would apply to such facts, Flaux J. held that the defence applied ([2007] EWHC 1558). The Court of Appeal, however overturned such a decision and disagreed ([2008] EWCA Civ 713; [2009] 2 W.L.R. 351). The House of Lords, unanimously, reversed the Court of Appeal. Citing Lord Mansfield's famous dictum in Holman v Johnson (1775) 1 Cowp. 341 at 343, the principle of public policy as ‘ex dolo malo non oritur action, or that no court will lend its aid to a man who bases his cause of action upon an immoral or an illegal act’ was emphasized. However, it was commented that such an interpretation has led to a complicated body of law (Davies, PS 2009, pp. 556-560). Two tests of ‘reliance’ and ‘inextricable link’ were said to have gained prominence in tort especially when taking into consideration the illegality defence (Davies, PS 2009, pp. 556-560). These were neither applied by the Lords in the case of Gray (Davies, PS 2009, pp. 556-560). The extent of this “reliance test” however remains unclear, and even if the reliance test inextricable link have been applied in contractual rights and tortious claims, such test wasstill considered unsatisfactory, as it has been applied in a technical and arbitrary manner and the very idea of “reliance” is ambiguous (Davies, PS 2009, pp. 556-560). This reliance test was then avoided in the decision made in Gray. In the said case, although Lord Brown of Eaton-under-Heywood made a brief reference to reliance, Lord Hoffmann clearly and forcefully said that ‘such reasoning was unhelpful when considering this defence of public policy’ (Davies, PS 2009, pp. 556-560). He also restricted such comments to ‘this kind of case’ only (Davies, PS 2009, pp. 556-560). It was however unclear whether such a construction would cover all tort claims unrelated to property (Davies, PS 2009, pp. 556-560). Another view applied is that if ‘the claimant's claim is so closely or inextricably bound up with his own criminal or illegal conduct that the court could not permit him to recover without appearing to condone the conduct’ (Cross v Kirkby, The Times, April 5, 2000 per Beldam L.J.). Although this may help at arriving at a ‘fair’ result, this was said to be too flexible as a standard (Davies, PS 2009, pp. 556-560). The inextricable link test also proved not to be useful, thus all the Lords instead agreed that the principle of ‘consistency’ to be the satisfactory reason for the barring of Mr Gray's claim so that civil law would be consistent with any criminal sentence already imposed (Davies, PS 2009, pp. 556-560). Lord Hoffmann and Lord Rodger, using the wording of the Law Commission, held that, ‘it would be quite inconsistent to imprison or detain someone on the grounds that he was responsible for a serious offence and then to compensate him for the detention’ (The Law Commission 2001). Hence, they held that ‘consistency of the law would be similarly compromised if Mr Gray's claim were to succeed: a necessary consequence of his being detained was that he would not be able to keep a job’ (Gray v Thames Trains Ltd [2009]). Although he would have suffered some lost earnings anyway, as a result of PTSD, they stressed that ‘the manslaughter and criminal sentence could not simply be ignored, the civil law must not undermine the criminal law’ (Gray v Thames Trains Ltd [2009]). Mr Gray also sought ‘indemnity against any claims which might be brought against him by his victim's family, and damages for feelings of guilt and remorse consequent upon the killing’ (Gray v Thames Trains Ltd [2009]). In trying to resolve such issue, Lord Hoffmann thought using a test of causation, testing if the damage was primarily caused by the claimant’s criminal act or of the defendant’s tortious act (Gray v Thames Trains Ltd [2009]). This was resolved by concluding that the ‘immediate cause of Mr Gray's losses was his own crime; it would be offensive to public notions of the fair distribution of resources that a claimant be compensated for the consequences of his own criminal behaviour’ (Gray v Thames Trains Ltd [2009]). Although the decision in Gray explicitly recognised ‘the need to identify the policy justifications for the illegality defence’, other appropriate factors should still be considered (Davies, PS 2009, pp. 556-560). However, these other factors underpinning the public policy on the illegality defence ‘remains unclear’ (The Law Commission 2009). Other good reasons for the illegality defence recognised by the Law Commission include: ‘furthering the purpose of the rule which the illegal conduct has infringed; preventing a claimant from profiting from his wrong; deterrence; proportionality’ (Davies, PS 2009, pp. 556-560). The significance of such policy rationales may have been helpful in deciding subsequent cases, however there must be an explicit endorsement by the House of Lords for these justifications (Davies, PS 2009, pp. 556-560). As stated in the case of Tinsley v Milligan, ‘it may yet prove difficult for first instance judges to state authoritatively the principles of public policy which apply and to develop a coherent approach to the illegality defence through individual cases’ ([1994] 1 A.C. 340 at 364). Although the case of Gray provides the impetus in using the illegality defence, ‘Tinsley still casts a large shadow over English private law generally’ (Davies, PS 2009, pp. 556-560). The Gray case should be considered so that the reliance principle could be discarded either in case law or legislation (Davies, PS 2009, pp. 556-560). Thus, the rationale underlying the illegality defence still need to be explicitly stated and clarified in succeeding case law. Finally, limitation of action may also be a defence in negligence claims. This is based on Limitation Act 1980 particularly sections 11 and 33. Under s.11 of the Limitation Act 1980 (the 1980 Act) the basic limitation period is three years from the accrual of the cause of action. However, the Parliament introduced (in 1975) a general discretion for the court not to apply the limitation period in personal injury claims if it was just and reasonable (Stanton, KM 2004, pp. 324-341). In terms of personal injury limitation law, there have been efforts to balance fairness between claimants and defendants (Burton F & Roy A 2010, p. 20). The courts in recent years, have taken ‘a less technical approach’ focusing on substantive justice in determining whether or not a claim may proceed (Burton F & Roy A 2010, p. 20). The Law Commission has recommended a revision of the 1980 Act (The Law Commission 2001, Law Com. No. 270). However, the possibility of altering the 1980 has been mooted by the current Government but then a there might be future developments in this area on the judicial context rather than statutory (Burton F & Roy A 2010, p. 20). Conclusion Examining all these defences to a claim in negligence, I would then agree that it is only contributory negligence which presents a clear presentation of factors for it to be used as a defence on a negligence claim, both in the judicial and statutory context. Other defences, such as consent, illegality and limitation of actions, seem vague and lacking in an explicit declaration. Hence, there is a need for reform such areas either through statutory or judicial reforms in order to guide succeeding decisions and determination of issues involving said defences. References Baddeley v Earl Granville (1887) 19 Q.B.D. 423. Burton, F & Roy A, 2010, ‘Personal injury limitation: flexibility and fairness’, Journal of Personal Injury Law, vol. 1, pp. 20-30. Clunis v Camden & Islington Health Authority [1998] P.N.L.R. 262. Davies, PS, 2009, ‘The illegality defence and public policy’, Law Quarterly Review, vol. 125(Oct), pp. 556-560. Gray v Thames Trains Ltd [2009] UKHL 33; [2009] 3 W.L.R. 167 Gray v Thames Trains Ltd [2007] EWHC 1558. Gray v Thames Trains Ltd [2008] EWCA Civ 713; [2009] 2 W.L.R. 351. Holman v Johnson (1775) 1 Cowp. 341 at 343. Jones v Livox Quarries Ltd [1952] 2 Q.B. 608 CA. Limitation Act 1980 Lunney, M & Oliphant, K, 2008, Tort Law, 3rd edn, Oxford University Press, Oxford, p. 333. McQuater, J, 2009, ‘Personal injury: contributory negligence - causation - causal potency of prisoner's addiction to drugs and alcohol’, Journal of Personal Injury Law, vol. 1, C34-39. Ryan St George v The Home Office (2007/CA 2008, RCJQB). Stanton, KM, 2004, ‘New forms of the tort of breach of statutory duty’, Law Quarterly Review, vol. 120(Apr), pp. 324-341. The Law Commission, 2009, The Illegality Defence: A Consultative Report, Consultation Paper No. 189. Retrieved on 3 April 2010 from http://www.lawcom.gov.uk/docs/cp189.pdf . The Law Commission, 2001, Illegality Defence in Tort, A Consultation Paper, Consultation Paper No. 160. Retrieved on 3 April 2010 from http://www.lawcom.gov.uk/docs/cp160.pdf . The Law Commission, 2001Limitation of Actions, HMSO, Law Com. No. 270, HC Paper No. 23. Wheeler v New Merton Board Mills Ltd [1933] 2 K.B. 669. Read More