General Defences
19
General defences
AIMS AND OBJECTIVES
After reading this chapter you should be able to:
■ Understand the essential elements of the general defences
■ Critically analyse the area
■ Apply the law to factual situations and reach conclusions as to liability
19.1 Introduction
As you have gone through the book, general defences which are of particular importance to a tort have been highlighted and those which are applicable only to a particular tort have been discussed. In this chapter, we look at the general defences available to most torts.
19.2 Voluntary assumption of risk (volenti non fit injuria)
This defence has been discussed in detail in Chapter 13 relating to trespass to the person and in Chapter 5 in the context of negligence. The defence is, however, relevant to other torts, for example in relation to claims under the Animals Act 1971. It is also specifically referred to in the Occupiers’ Liability Acts 1957 and 1984.
A person who consents to damage or injury or to the risk that either may occur cannot later complain and make the defendant liable for what has happened. Consent may be express, for example where a person signs a consent form for a surgical procedure, or implied, for example taking part in a contact sport.
The principal issue is whether or not the claimant has in fact consented. To decide this it must be shown that the claimant
a. was aware of the risk; and
b. accepted it freely.
19.2.1 Knowledge of the risk
Claimants must be aware of the broad nature of the risk which they are taking, in other words they must know what they are doing and what the possible outcomes may be. As has been seen, in the context of consent to medical treatment, this does not mean that they need to understand all the detail of the treatment but they must understand why the treatment is advisable, what it involves, what any side-effects may be and the intended outcome. Failure to ensure such understanding may amount to negligence on the part of the health practitioner involved. In medical cases consent is usually express.
In the context of sport, the claimant consents to the risk of injury which is inherent in the game played according to the rules. This is an example of implied consent. An action may lie for trespass to the person if injury occurs as a result of something which is against the rules of the game.
What both examples have in common is the knowledge by the claimant of the nature of the risk which is being taken.
19.2.2 Free acceptance of the risk
It is not enough to show that the claimant had knowledge, whether specific or general, of the risk that was being taken. It must also be shown that it was freely accepted by the claimant when undertaking the activity. Case law illustrates this in relation to various categories of claimants:
■ employees
■ rescuers
■ spectators at sporting events
■ passengers in vehicles.
Employees
The defence is often important in cases where an employee has been injured during the course of employment. The courts take a realistic view that an employee may be under pressure for all sorts of reasons to keep the job. Saying that there is always a right to leave the employment is certainly true but would be impractical for most people.
The position of many employees was explained in Smith v Baker [1891] AC 325 when Lord Herschell, while acknowledging that an employee ‘no doubt voluntarily subjects himself to the risks inevitably accompanying the job’ said that ‘mere continuance in service, with knowledge of the risk’ cannot amount to consent to the risk.
Employees may also feel that they put their jobs at risk if they make a complaint. The latter problem has in theory been dealt with by the Employment Rights Act 1996 which gives protection to employees who complain about unsafe practices. Although the Employment Tribunal could order reinstatement should the employee have been dismissed, there is no guarantee that the employer will comply. In times of high unemployment, the protection may appear to be flimsy to say the least.
While it is not denied that the defence can apply in employment situations, it only exceptionally does so. An example of this type of case is found in Imperial Chemical Industries Ltd v Shatwell [1964] 3 WLR 329 (see Chapter 17.4).
Rescuers
The courts have been reluctant to find that a rescuer has consented to the risks inherent in the rescue.
CASE EXAMPLE
Baker v T E Hopkins & Sons Ltd [1959] 1 WLR 966
Two workmen had been overcome by fumes from a pump while trying to repair a well. Dr Baker had himself lowered by rope to try to rescue the men but was himself overcome when the rope jammed and he also became trapped. He died.
The Court of Appeal found that the defendants owed the doctor a duty of care, thus the issue of whether Dr Baker had voluntarily consented to the risk was irrelevant. Holding that the act of a rescuer in the circumstances was a foreseeable consequence of the breach of duty owed to the workmen, Lord Justice Willmer said:
JUDGMENT
‘it would certainly be a strange result if the law were held to penalise the courage of the rescuer by depriving him of any remedy’.
This case appears to say that a duty of care will be owed to a rescuer. This has been refined in White v Chief Constable of South Yorkshire Police [1999] 2 AC 455 which says that where the injury amounts to nervous shock, a rescuer must satisfy the same tests as any other primary victim (discussed earlier in Chapter 6.1.4).
Spectators at sporting events
While participants in sport consent freely to the risks involved in the sport, what about spectators? Some sports, for example motor racing, are inherently dangerous and spectators are from time to time injured by accidents. The issue has been discussed by the Court of Appeal.
CASE EXAMPLE
Wooldridge v Sumner [1963] 2 QB 43
The claimant attended a horse show as a professional photographer. A rider who was riding too fast lost control of his horse which then injured the claimant. The Court of Appeal recognised that the rider owed spectators a duty of care. Nevertheless, they considered that he had been guilty of an error of judgement in his riding of the horse but not negligence. He had not breached his duty so volenti was not an issue. Lord Justice Diplock explained the position:
JUDGMENT
‘A person attending a game or competition takes the risk of any damage caused to him by any act of a participant… notwithstanding that such act may involve an error of judgment or a lapse of skill, unless the participant’s conduct is such as to evince a reckless disregard of the spectator’s safety.’
The rule seems therefore to be that provided the cause of the incident was not due to negligence, the spectator will have consented to the risks which are inherent to watching the sport.
Passengers
Anyone who is a passenger in a motor vehicle driven by someone they know to be drunk or otherwise incapable is factually likely to have assumed the risk that they might be injured by the driver’s negligence.
CASE EXAMPLE
Dann v Hamilton [1939] 1 KB 509
Hamilton drove the claimant and her mother to London to see the Coronation decorations. Hamilton drank alcohol during the evening. They met a man who was given a lift but who left the car shortly before it was involved in an accident when the claimant was injured and Hamilton was killed. The man had said to the claimant and her mother ‘You two have more pluck than I have.’ The claimant said, ‘You should be like me. If anything is going to happen, it will happen.’ The court held that volenti could not apply. The claimant had not consented to the defendant’s negligence.
Mr Justice Asquith, while finding in the particular case that the defence did not apply, nonetheless acknowledged the possibility that in extreme cases it might be successfully pleaded:
JUDGMENT
‘There may be cases where the drunkenness of the driver… is so extreme and so glaring that to accept a lift is like… inter-meddling with an unexploded bomb or walking on the edge of an unfenced cliff.’
The position of passengers in a motor vehicle has been settled by the Road Traffic Act 1988, s149(3). Where a person is carried in a vehicle in circumstances such that compulsory third party insurance is required:
JUDGMENT
‘The fact that a person so carried has willingly accepted as his the risk of negligence on the part of the [insured] shall not be treated as negativing any… liability on the part of the [insured].’
Although the defence of voluntary assumption of risk cannot be used, the defence of contributory negligence remains open when a passenger can be seen to be aware of the risk and to have consented to it.
While passengers in motor vehicles are not vulnerable to the defence, passengers in other forms of transport may find that the defence can be successfully used against them.
CASE EXAMPLE
