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Encyclopedia > Acts of the claimant
English Tort law
Part of the common law series
Negligence
Duty of care
Standard of care
Bolam Test
Breach of duty
Causation
Breaking the chain
Acts of the claimant
Remoteness
Professional negligence
Loss of chance
Loss of right
Res ipsa loquitur
Eggshell skull
Defences to negligence
Trespass to property
Defamation
Strict liability
Vicarious liability
Rylands v. Fletcher
Nuisance
Other areas of the common law
Contract law  · Property law
Wills and trusts
Criminal law  · Evidence

In the English law of negligence, the acts of the claimant may give the defendant a defence to liability, whether in whole or part, if those acts unreasonably add to the loss. Image File history File links Scale_of_justice. ... This page is a candidate for speedy deletion. ... This article concerns the common-law legal system, as contrasted with the civil law legal system; for other meanings of the term, within the field of law, see common law (disambiguation). ... In tort law, the right to sue and recover damages from another on the basis of negligence, as opposed to numerous other tort theories discussed elsewhere, is based upon proving that the defendant failed to use ordinary care, that is,that degree of care for the protection of the person... In tort, there can be no liability in negligence unless the claimant establishes both that he or she was owed a duty of care by the defendant, and that there has been a breach of that duty. ... The Bolam Test In Sidaway v Governors of Bethlem Royal Hospital, Lord Scarman said: The Bolam principle may be formulated as a rule that a doctor is not negligent if he acts in accordance with a practice accepted at the time as proper by a responsible body of medical opinion... In tort, there can be no liability in negligence unless the claimant establishes both that he or she was owed a duty of care by the defendant, and that there has been a breach of that duty. ... In the English law of tort, causation proves a physical link between the defendant’s negligence and the claimant’s loss and damage. ... In the English law of the tort of negligence, breaking the chain refers to the test of causation because, even if the defendant can be shown to have acted negligently, there will be no liability if some new intervening act (or novus actus interveniens) breaks the causal link between that... In the English law of negligence, the test of causation not only requires that the defendant was the cause in fact, but also requires that the loss or damage sustained by the claimant was not too remote. ... In the English law of tort, professional negligence is a subset of the general rules on negligence to cover the situation in which the defendant has represented him or herself as having more than average skills and abilities. ... In the English law of tort, loss of right is a new heading of potential liability arising as a matter of policy to counteract limitations perceived in the more traditional rules of causation. ... Res ipsa loquitur is a legal term from the Latin meaning literally, The thing itself speaks but is more often translated The thing speaks for itself. The doctrine is applied to tort claims which, as a matter of law, do not have to be explained beyond the obvious facts. ... The eggshell skull rule (or thin-skull rule) is a legal doctrine used in both tort law and criminal law that holds an individual liable for all consequences resulting from their activities leading to an injury to another person, even if the victim suffers unusual damages due to a pre... In English and American law, and systems based on them, libel and slander are two forms of defamation (or defamation of character), which is the tort or delict of making a false statement of fact that injures someones reputation. ... Strict liability is a legal doctrine in tort law that makes a person responsible for the damages caused by their actions regardless of culpability (fault) or mens rea. ... Vicarious liability is a form of strict, secondary liability that arises under the common law doctrine of agency – respondeat superior – the responsibility of the superior for the acts of their subordinate and can be distinguished from contributory liability, another form of secondary liability, which is rooted in the tort theory... Rylands v. ... Nuisance is a common law tort. ... For other uses, see Contract (disambiguation). ... Property law is the area of law that governs the various forms of ownership in real property (land as distinct from personal or movable possessions) and in personal property, within the common law legal system. ... In the common law, a will or testament is a document by which a person (the testator) regulates the rights of others over his property or family after death. ... The law of trusts and estates is generally considered the body of law which governs the management of personal affairs and the disposition of property of an individual in anticipation and the event of such persons incapacity or death, also known as the law of successions in civil law. ... Criminal law (also known as penal law) is the body of statutory and common law that deals with crime and the legal punishment of criminal offenses. ... The law of evidence governs the use of testimony (e. ... English law is a formal term of art that describes the law for the time being in force in England and Wales. ... In tort law, the right to sue and recover damages from another on the basis of negligence, as opposed to numerous other tort theories discussed elsewhere, is based upon proving that the defendant failed to use ordinary care, that is,that degree of care for the protection of the person...

Contents

The principles

In the normal course of events, the defendant is liable if he or she owed a duty of care, breached that duty and either caused loss or damage to the claimant or exposed the claimant to the risk of loss or damage. But a negligent defendant will not be liable for any loss or damage subsequently sustained by the claimant, if the claimant acted unreasonably in responding to the situation. This is a matter for the courts to weigh on the facts of each case. In McKew v Holland & Hannen & Cubitts (Scotland) Ltd. (1969) 3 AER 1621 as a result of their negligence, the defendant caused an injury to the claimant's leg which significantly weakened it. When later attempting to descend a steep staircase without a handrail or assistance, the claimant broke the ankle in the same leg. Lord Reid said that once a person is injured and that injury produces a loss of mobility, he or she must act reasonably and carefully. It is, of course, possible that the disability may produce a situation in which further injury is caused. In such a case, the second injury fits into the chain of causation, the one following naturally from the other. But if the injured person acts unreasonably, this behaviour is novus actus interveniens (Latin for "some new act breaking in"). The chain of causation is considered broken and the new injuries will be regarded as caused by the claimant's own conduct and not by the defendant's fault or the disability caused by that first negligence. So in the particular case, the claimant knew that his left leg might give way suddenly. He could see that these stairs were steep and that there was no handrail. If he had given the matter a moment's thought, he would have realised that he could only safely descend if he went extremely slowly and carefully so that he could sit down if his leg gave way. Alternatively, he should have waited for assistance. But recklessly he chose to descend and, when he fell, he could not stop himself. That was taking an unreasonable risk and, therefore, his behaviour broke the chain of causation. But where the claimant’s response is not sufficiently unreasonable, the chain of causation will be unbroken and the defendant will remain liable. In Wieland v Cyril Lord Carpets (1969) 3 AER 1006 the defendant's negligence caused an injury to the claimant's neck which necessitated the wearing of a surgical collar. The claimant also wore bifocals and the collar inhibited the normal compensatory movement of her head to maintain perfect vision. She fell down some steps sustaining further injury. It was held that her difficulties in seeing with her usual spectacles were within the risk created by the original negligence. Unlike McKew, Mrs. Wieland was not behaving unreasonably in descending the steps and so the chain of causation was not broken. Eveleigh J. said that "...one injury may affect a person's ability to cope with the vicissitudes of life" but all that arises reasonably in the ordinary course of events will not break the chain. Similarly, where the defendant creates a dangerous situation which requires the claimant to take immediate evasive action, the defendant will remain liable even if, at the critical moment, the claimant makes the wrong decision and suffers damage which could have been avoided had a different choice been made. In tort, there can be no liability in negligence unless the claimant establishes both that he or she was owed a duty of care by the defendant, and that there has been a breach of that duty. ... In tort, there can be no liability in negligence unless the claimant establishes both that he or she was owed a duty of care by the defendant, and that there has been a breach of that duty. ... The plaintiff, claimant, or complainant is the party initiating a lawsuit, (also known as an action). ... Latin is an ancient Indo-European language originally spoken in Latium, the region immediately surrounding Rome. ...


The defence of contributory negligence

Contributory negligence used to be a complete defence, but the Law Reform (Contributory Negligence) Act 1945 allows the court to apportion liability for damages between the claimant and the defendant where the claimant's negligence has materially added to the loss or damage sustained. Section 1 provides:

(1) Where any person suffers damage as the result partly of his own fault and partly of the fault of any other person or persons, a claim in respect of that damage shall not be defeated by reason of the fault of the person suffering the damage, 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..."

The reference in s1(1) to the claimant's share in the "responsibility for the damage" requires a court to consider what contribution the claimant made to his or her loss or damage, and the degree of blameworthiness. For these purposes, the only requirement is that the claimant's actions contribute to the damage. There is no requirement that the claimant must also have contributed to the initial sequence of events which caused the loss or damage. In Sayers v Harlow UDC (1958) 1 WLR 623 having paid to use a public toilet, a 36-year-old woman found herself trapped inside a cubicle which had no door handle. She attempted to climb out by stepping first on to the toilet and then on to the toilet-roll holder which gave way. The court held that the injuries she suffered were a natural and probable consequence of the defendant's negligence, but that the damages would be reduced by 25% since the claimant had been careless in depending for support on the toilet-roll holder.


In some situations, the common law has been overtaken by statute. In Froom v Butcher (1976) QB 286 Denning MR assessed the percentage contribution made by a claimant who failed to wear a seat belt (at p295): The Right Honourable Alfred Thompson Denning, Baron Denning, OM, PC (23 January 1899 – 5 March 1999) was a British barrister from Hampshire who became Master of the Rolls (the senior civil judge in the Court of Appeal of England and Wales) and was generally well liked, both within the legal...

"Whenever there is an accident, the negligent driver must bear by far the greater share of responsibility. It was his negligence which caused the accident. It also was a prime cause of the whole of the damage." Thus, at p296: "(At times) the evidence will show that the failure made all the difference. The damage would have been prevented altogether if a seat belt had been worn. In such cases I would suggest that the damages should be reduced by 25%. But often the evidence will only show that the failure made a considerable difference...In such a case I would suggest that the damage attributable to the failure to wear a seat belt should be reduced by 15%."

The wearing of seat belts then became compulsory (see the Wearing of Seat Belts Regulations 1983 and the Motor Vehicles (Wearing of Seat Belts in Rear Seat by Adults) Regulations 1991). The current thinking would not support limiting damages by a figure of 25% and if, for example, the claimant was thrown out of the vehicle because no seat belt was worn, a substantial finding of contributory negligence should follow. Indeed, in Hitchins v Berkshire County Council the High Court expressed some difficulty in following the logic of Lord Denning's figure of 25% although the ratio decidendi was considered binding. There are two further principles to consider: This article or section does not cite its references or sources. ...

Volenti non fit injuria is a Latin expression meaning to a willing person, no injury is done. The principle is that someone who knowingly and willingly puts himself in a dangerous situation will be legally disentitled to sue for his or her resulting injuries. ... In the law, a cause of action is a recognized kind of legal claim that a plaintiff pleads or alleges in a complaint to start a lawsuit. ... If you commit a crime, you cannot sue for damages that you experience while committing the crime ...

Volenti

If a claimant is volens, he or she has willingly accepted the risk of being injured by the foreseeable behaviour of the defendant. This means that there is considerable overlap between contributory negligence and volenti. Because prior agreement may be taken to extinguish the cause of action, its application can sometimes result in injustice. But contributory negligence has the capacity to be more fair because instead of extinguishing the action, it merely reduces the award of damages by the percentage of contribution made to the loss or damage by the claimant. In Reeves v Commissioner of Police of the Metropolis (2000) 1 AC 360, after two failed attempts, the claimant succeeded in committing suicide in his cell because of the defendant's failure to take proper precautions while the prisoner was on "suicide watch". The suicide was not a novus actus because preventing it was inevitably a part of the defendant's duty of care, and the court cannot equate a breach in the duty with a breach in the causal chain. The general rule remains that people of full age and full intellectual capacity must look after themselves and take responsibility for their actions. Hence, duties to safeguard people from causing harm to themselves will be very rare. But once it is obvious that this is one of those rare cases, the defendant cannot argue that the breach of the duty could not have been the cause of the harm because the victim caused it to himself. Thus, the defendant will be liable for the consequences of his or her negligence, however objectively unreasonable the claimant’s act may be, although damages may be reduced to take account of the claimant’s contributory negligence: in this case, damages were reduced by 50%. Suicide (from Latin sui caedere, to kill oneself) is the act of willfully ending ones own life. ...


In Morris v Murray (1990) 3 AER 801 the claimant helped an obviously drunken pilot get into a small aeroplane which crashed as it attempted to take off. This was a classic case for volenti to apply. The court held that the claimant must have known the condition of the pilot and voluntarily took the risk of negligence by agreeing to be a passenger. But in driving cases, s149 Road Traffic Act 1988 denies the effectiveness of any agreement made by the passenger of a motor vehicle with the driver which seeks to exclude liability for negligence where insurance cover for passengers is compulsory. This applies both to express agreements between driver and passenger (e.g. where the driver displays a notice in the vehicle stating that passengers travel at their own risk) and to implied agreements in cases such as Pitts v Hunt (1991) 1 QB 24, where the claimant was a passenger on a motor cycle knowing that the driver was drunk, uninsured, and without a current licence. The defendant negligently collided with another vehicle, killing himself and injuring the passenger. Dillon LJ. dismissed the claim on the ground of ex turpi causa because there was a joint common purpose. This is a public policy test of "public conscience" because the claimant might otherwise benefit from the unlawful behaviour willingly undertaken. Similarly, under ss1 and 2 Unfair Contract Terms Act 1977, commercial agreements seeking to exclude liability in negligence are also void. But if the claimant signs an express agreement identifying the nature of the risks likely to be run and accepting those risks, this is evidence that the claimant is volens and has chosen to run the risk not by compulsion or as the lesser of two or more evils i.e. the contractual clause is an express volenti exclusion clause for the purposes of tortious liability. Because knowledge of a risk does not of itself imply consent, the UCTA prevails and such clauses do not automatically exclude liability. This would particularly apply in medical cases where informed consent is traditionally evidenced in a written form (Luckham: 2004). In criminal law, the doctrine of common purpose, common design or joint enterprise refers to the situation where two or more people embark on a project with a common purpose that results in the commission of a crime. ... Informed consent is a legal condition whereby a person can be said to have given consent based upon an appreciation and understanding of the facts and implications of an action. ...


Ex turpi causa

For the main article, see illegality in English law

The policy is intended to prevent a claimant from seeking any benefit from his or her own unlawful acts. For example, in Meah v McCreamer (No. 2) (1986) 3 AER 897 the claimant had been injured in a car accident and later sexually assaulted three women. He was denied the right to claim an indemnity from the driver of the car against the claims for compensation made by the victims of his criminal actions. The problem is that if the medical evidence of the head injury establishes that the criminal conduct would not have arisen "but for" the tort alleged then, in principle, damages should follow. If the claimant was not responsible for his behaviour and it had merely been anti-social rather than criminal behaviour, then damages would have been available, and it seems inconsistent to deny recovery because the involuntary behaviour happened to be "illegal". In Thankwell v Barclays Bank Plc. (1986) 1 AER 676, Hutchinson J. said (at p687) that the court would deny a claim when, "...in all the circumstances it would be an affront to the public conscience if by affording him the relief sought the court was seen to be indirectly assisting or encouraging the plaintiff in his criminal act." The logic of the "affront" may be more apparent in Clunis v Camden and Islington Health Authority (1998) 3 AER 180 where, two months after the claimant had been discharged from hospital after detention under s3 Mental Health Act 1983, he killed a stranger. He pleaded guilty to manslaughter on the ground of diminished responsibility. A claim against the hospital was struck out because it was based on the claimant's own illegal act. Similarly, in Revill v Newbery (1996) 2 WLR 239 a burglar was shot by an elderly man. In general terms, it is appropriate to deny burglars relief, e.g. that the injuries prevent the burglar from pursuing his or her successful career in crime may be true, but it would be an affront if such loss of earnings were recoverable. However, it would be a different matter if the householder uses excessive force and inflicts very severe injuries. In such cases, some relief for the injuries should be allowed, but subject to reduction for contributory negligence. For the law in other criminal jurisdictions, see diminished responsibility. ...


References

  • Cane, Peter. (1999). Atiyah’s Accidents, Compensation and the Law. Sixth edition. Cambridge: Cambridge University Press. ISBN 0-521-60610-1
  • Deakin, Simon; Johnston, Angus & Markesinis, B. S. (2003). Markesinis and Deakin's Tort Law. Oxford: Clarendon Press. ISBN 0-19-925712-4
  • Hart, H. L. A. & Honore, A. M. (1985). Causation in the Law. Oxford: Clarendon Press.
  • Luckham, Mary. "Informed consent to medical treatment and the issue of causation: the decision of the House of Lords in Chester v Afshar [2004] UKHL 41" [1]
  • Rogers, W. V. H. Winfield and Jolowicz on Tort. London: Sweet & Maxwell. ISBN 0-421-76850-9
  • Weir, Tony. (2002). Tort Law. Oxford: Oxford University Press. ISBN 0-19-924998-9

 
 

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