Chapter 10 Answers to end-of-chapter questions

1. Outline each of the three defences discussed above. What do you think are their strengths and weaknesses?

This is a straightforward question. As such it is more likely to appear as a tutorial/seminar rather than as an examination question. However, understanding the strengths and weaknesses of – and differences and similarities between – the various defences is a useful place to start your revision. A strong answer would not only outline the defences themselves – voluntarily assumption of the risk (volenti), contributory negligence and illegality – but would also consider the differences between them by exploring their strengths and weaknesses in comparison with each other.

You may find it helpful to note down the key points in tabular form. We covered the basics – see if you can add more detail to the table below

Defence	Key Issues/Case	Strengths	Weaknesses
Voluntary assumption of risk	D must show that C knew nature and extent of the risk; and voluntarily agreed to it Key case: Morris v Murray	Full defence	Difficulties in establishing both ‘knowledge’ and ‘consent’
Illegality	Denies recovery to certain claimants injured while committing unlawful activities Key cases: Gray v Thames Trains, Pitts v Hunt, Patel v Mirza See also Law Commission recommendations	Full defence Appeals to the ‘public conscience’ who don’t like to think of criminal being compensated (although this could also be considered a weakness)	A definitive justification for the defence remains elusive. What sorts of unlawful activity does it cover?
Contributory negligence	D must show that C failed to exercise reasonable care for their own safety? that this failure contributed to the damage? and By what extent should C’s damages be reduced? Key cases: Jones v Livox Quarries; Jackson v Murray	Partial defence – greater flexibility	Uncertainty and perceived arbitrariness in apportioning responsibility.

2. ‘The defence of illegality ‘expresses not so much a principle as a policy. Furthermore, that policy is not based upon a single justification but on a group of reasons, which vary in different situations’ (Lord Hoffmann, Gray v Thames Trains Ltd [2009] UKHL 33 [30]). Discuss with reference to relevant case law.

This is an example of the type of question you might get in an exam. It requires you to outline how the illegality defence works before exploring the various justifications for it.

It is important in this question that you show an understanding and awareness of the case law and policy reasoning underpinning the defence of illegality.  Given that the quote is taken from Gray, this is the obvious place to start though it is also important to refer to the various Law Commission reports as well as the more recent case law – most obviously Patel v Mirza.

A basic answer will highlight the traditional policy reasons/justifications for the defence of illegality, with stronger answers supporting this by reference to case examples. You should note the extent to which the UKSC has disagreed over the justifications for the defence. While some argued that there should be a ‘range of factors’ to considered (as in Hounga) others suggest that there should be single approach to the defence (eg Lord Neuberger suggested there should be in Bilta (UK) Ltd v Nazir (No 2)). Patel v Mirza is key here where the majority endorsed a variant of the range of factors approach employed in Hounga

Answers could also make the distinction between ‘principle’ and ‘policy’. Policy and principle can mean different things on different occasions. Most commonly, however, ‘policy’ tends to be used to describe a particular subset of factors or arguments that the courts may employ when deciding cases (in this context: answers would need to consider the various justifications for the defence – most notably, deterrence that is a wish not to condone wrong doers, public conscience). Here, policy is simply one thing the courts may turn to when determining the shape of the law, and is to be contrasted with other sorts of factors or considerations. This was most famously articulated by the legal philosopher Ronald Dworkin, who distinguished ‘policy’ from ‘principle’ in Taking Rights Seriously. His distinction was essentially that between moral standards and other sorts of arguments—principles are based on notions of individual fairness and justice, policy by contrast covers so-called collective goals such as wealth maximization or the encouragement of particular activities or trades. As such, policy is essentially defined by reference to what it is not. Policy is anything other than arguments of justice and morality. The same point has been made by Conaghan & Mansell in The Wrongs of Tort, who describe policy as a ‘catch-all’ phrase, used by judges and commentators alike, to describe judicial considerations which are ‘non-legal’, that is not based on a recognised legal principle or an established precedent’ (p 204).  You can read more about the distinction between principle and policy in the ‘policy’ box in the introduction, section 1.2.1.

You might think of an example to apply this discussion too, eg the distinctions say between cases involving parties involved in a criminal act together (where one is injured e.g. Pitts v Hunt) and those where only one party is acting criminally, e.g., where an individual has committed a criminal act against someone who is entirely innocent (such as in Gray or Clunis). Are the policy/principle reasons the same for both?

Remember that your examiner will also be looking for answers that are well structured and written. When using cases make sure you do so effectively – i.e. by going to the point of law and not getting unnecessarily distracted by explaining the facts of cases. Strong essay answers always have a clear argument setting out what you think the answer to the question is. One straightforward way of doing this is by setting out your ‘answer’ in a few sentences at the beginning of the question and then using the rest of the question to support this. All essay questions require references to academic commentary and writing in order to support your answer. When referring to academic arguments you need to do more than simply describing what the authors say, you need to offer some analysis of their arguments. This involves asking you questions such are: Do I agree with their arguments? If so, why? How does their argument develop our understanding of this issue? What does their argument add to what I am trying to argue in my answer to this question?

Make sure to also look at our general guidance on answering essay questions.