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11.3 Defences and Limitation of Liability Lecture - Hands on Examples

Question:

Chip and Dale are burglars, and are out one night looking for houses to burgle. The come upon a likely target, and once they’ve determined that nobody is at home, they break in. The owner of the house is an avid wine collector, and has a significant cellar built underneath her kitchen, accessed via a trap door. This trap door has been left open, and in the darkness Chip fails to notice it. He falls through and, as he will discover later, is injured to such an extent that he will need to use a wheelchair for the rest of his life. Dale hears the commotion, and makes a quick escape (it emerges, after all, that there is no honour amongst thieves.) He throws a few stolen items into the back of the getaway car and leaves.

At the same time some two miles away, three friends Huey, Dewey and Louie are on the way to a party. They all get into Huey’s car and begin to drive home. Huey, the driver, is wearing his seatbelt, as is Dewey. Louie, who is sitting in the back, decides not to wear his seatbelt so he can lean forward and mess with the car radio. Unbeknownst to Dewey and Louie, Huey has been sneaking alcohol from a hipflask, and is drunk. Huey’s driving is erratic and he swerves all over the road. At one point, Huey lurches onto the wrong side of the road and hits Dale who is coming the other way. Dale is driving safely and under the speed limit (since he wants to avoid any unwanted police attention.)

Dale’s car is totalled, and he suffers a broken nose from the airbag.

Apart from being shaken up, Huey is fine.

Dewey, who is still wearing his seatbelt, suffers serious whiplash.

Louie, who is not wearing his seatbelt is flung forward through the windscreen, suffering serious lacerations. An ambulance is called, and he survives. If he had worn a seatbelt, he would have been uninjured.

Chip is found by the homeowner who calls the police. He is arrested and later attempts to bring a case against the homeowner for his injuries.

Dale and Louie bring (separate) cases against Huey for their injuries, alleging that he had been driving negligently.

Dewey is left in significant pain but does not bring a case against Huey. Seven years later, Dewey has run up unfortunate gambling debts, and decides to sue Huey in an attempt to make some money.

Identify the defences that each of the parties might use. Do not discuss other matters of tortious liability (e.g. do not discuss the torts of negligence or trespass).

Answer:

There are four different claims here, brought by Chip, Dale, Dewey and Louie.

The primary defence that might be tabled against Chip is that of illegality. As per Vellino v Chief Constable of Greater Manchester Police [2002] 1 WLR 218, the defence is made up of three primary elements – the harm must be closely connected to the criminal enterprise, must be justified as a matter of public policy, and the relevant criminal conduct must be sufficiently serious. All three of these elements are arguably present. Chip is injured whilst in the process of committing burglary, a crime which is characterised by the unauthorised access of property. Since the injury occurs as a result of this behaviour, it can be held to be closely connected. Indeed, just as the claimant’s exposure to the dog attack in Cummings v Granger [1977] QB 397 was as a result of burglary, so too was Chip’s exposure to the trap-door. There is a fair public policy argument to be made – it would be in the interest of public policy to not hold homeowners responsible for injuries that burglars receive whilst stealing from people. The crime was sufficiently serious – Cummings demonstrates that burglary passes this threshold, and indeed it can be argued that in target personal as opposed to commercial property, Chip’s crime is even more serious. An illegality offence will thus likely succeed.

Whilst illegality might also be used as a defence against Dale’s claim, it is doubtful that it will succeed. Being hit by a drunk driver is hardly connected to the nature of Dale’s activity – indeed, it could have happened to anyone driving along that stretch of road, demonstrating a lack of connection with Dale’s criminal activity. At the point in time the accident occurs, Dale is moving stolen goods, and whilst Dale should certainly be prosecuted under criminal law, it would be difficult to argue that his behaviour is so serious as to defeat a claim against a clearly negligent driver. This defence would thus likely fail.

Dewey’s claim for negligently caused personal injury will likely fail under the Limitation Act 1980. As per s.11, he needs to have brought an action against Huey within three years of the date the cause of action accrued. As per s.14, Dewey has the requisite knowledge to lodge a claim: he reasonably knows that his injury is significant, that it has been caused through another’s negligence, and who the defendant is. There is nothing is indicate that the court will opt to overturn the time limit under s.33 – there is little that is equitable about someone trying to pay off their self-inflicted gambling debts.

Louie’s case will likely be affected by the defence of contributory negligence, as per s.1 of the Law Reform (Contributory Negligence) Act 1945. Louie’s lack of seatbelt will likely be regarded as contributory negligence. Contributory negligence requires claimant fault, and then apportionment based on blameworthiness and extent of damage caused. Louie is clearly at fault – there is a significant body of law demonstrating that seatbelt use is an expected behaviour of passengers in cars, as demonstrated by Froom v Butcher [1976] 1 QB 286 (as well as various statutory provisions stating as such.) Froom also provides apportionment guidance – with a reduction of 25% where non-seatbelt use is key to the claimant’s damage. Consent will not apply since Louie is a passenger and Huey is driving his car in situation which mandates insurance (i.e. on a public road), as per s.149 of the Road Traffic Act 1988. Thus the partial defence of contributory negligence will succeed, resulting in a 25% reduction in damages.


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