Illegality
Illegality is described as a “special rule of public policy.” What does this mean (what objective does this defence aim to achieve)?
Aimed primarily to avoid compensating criminals
How does this defence differ from contributory negligence in terms of outcome?
Voluntary assumption is a complete defence, while contributory negligence only reduces damages.
Why is contributory negligence the most common defense?
Because it is a partial defence
How do the defences of illegality and voluntary assumption of risk differ from the defence of contributory negligence in terms of the resulting remedy?
Illegality and voluntary assumption of risk allows a complete defence
What standard must the claimant meet for their consent to count as truly voluntary?
It must be free from pressure and given with real choice.
A claimant rides an electric scooter at night without reflective gear. A car cuts across their path negligently. The claimant suffers severe leg injuries that doctors agree would have been less serious had they worn knee protection.
Which approach is most consistent with modern contributory negligence principles?
A. No reduction because safety-equipment omissions only matter if they contribute to the accident itself.
B. A fixed 25% deduction applies whenever a claimant fails to use optional protective gear.
C. A reduction may apply, but only to reflect the increased severity of injury, and the percentage must be justified by comparing the claimant’s omission with the defendant’s creation of the dangerous situation.
D. A claimant using an electric scooter assumes all associated risks, eliminating partial damages.
C. A reduction may apply, but only to reflect the increased severity of injury, and the percentage must be justified by comparing the claimant’s omission with the defendant’s creation of the dangerous situation.
As established in Gray v Thames Trains, what are the two forms of the illegality defence? Explain each one.
Narrow form → prevents recovery for damages that flow from the sentence imposed for the criminal offence
Wider form → prevents recovery of compensation for loss suffered due to consequence of your own criminal act directly
Consent
What does "Volenti non fit injuria" mean?
Provide examples of narrow form and wider form.
Narrow form → loss of liberty, fine
Wider form → guilty, potential future liability to V’s dependant’s
Why did the court in Morris v Murray uphold the defence when the claimant flew with a drunk pilot, but reject it in Nettleship v Weston?
Because in Morris the risk was so obvious and freely accepted, unlike in Nettleship.
When assessing jemimas responsibility, the court must apply the Law Reform (Contributory Negligence) Act 1945, s1, which requires a reduction only where the claimant’s “fault” contributed to the damage
However, the reduction depends on whether Jemimas omissions worsened the extent of injury, following the logic in _______, where injuries from failing to wear safety restraints were treated as distinct from the accident itself.
Froom v Butcher
The defence of illegality allows for a complete defence. However, under what circumstances might this defence not succeed, even if the C was involved in wrongdoing?
If the illegal act committed by the C is trivial or if it merely serves as a background to the D’s tort
If a participant in a dangerous sport is injured by conduct outside the sport's normal rules, why might the defence fail?
Because consent only covers ordinary, inherent risks, not reckless or extraneous behaviour.
What are the elements of the defence?
1) Agreement by the claimant to absolve the defendant from legal responsibility for his conduct
2) The agreement must be voluntary, not due to compulsion by the defendant or external circumstances - Per Scott LJ in Bowater v Rowley Regis BC [1944] K.B. 476
3) The claimant should have full knowledge of the nature and extent of the risk it is alleged he has assumed - Dann v Hamilton [1939]