1
Q
Only address defences
A
Once a tort has been established
2
Q
It is for who to prove a defence?
A
- It is for the defendant to prove a defence
- on the balance of probabilities
3
Q
Three key defences in the tort of negligence
A
- Volenti non fit injuria (Consent)
- Contributory negligence
- illegality
4
Q
Volenti non fit injuria Translated
A
That to which a man consents cannot be considered an injury
5
Q
Volenti non fit injuria
Applicable when
A
Claimant has consented to the risk(s) involved and cannot therefore complain of the consequential damage
6
Q
Volenti non fit injuria
To succeed
A
Defendant must show
* C had capacity to give consent to the risks
* had full knowledge of the nature and extent of the risks
* Agreed to the risks of injury
* Agreed voluntarily
7
Q
If Volenti non fit injuria is successful
A
Claimant gets no damages
8
Q
Capacity to give valid consent
A
- Normally straight forward unless a young child
- Reeves v CoP for Metropolis (2000)
- Prisoner took their own life while in custody - could not use consent, as claimant did not have the requesite capacity
9
Q
- Reeves v CoP for Metropolis (2000)
A
- HoL stated defendant could not use argument of consent in relation to deceased action
- As this was the very action that they were required to prevent by DoC
- Claimant did not have the requisite capacity
Damages were reduced by 50% for contributory negligence
10
Q
Full knowledge of nature and extent of risks
A
Morris v Murray 1991
11
Q
Morris v Murray 1991
A
- Claimant accepted a lift with a drunken pilot
- Claimant was also drunk
- Claimant was not so drunk to be incapable of understanding the nature and extent of the risk
- Willingly embarked on the flight
12
Q
Agreed to the risk of injury
A
- can be express or implied.
- also subjective.
- Knowledge of the risk alone is not the same as
consenting to it.
Dann v Hamilton 1939
13
Q
Dann v Hamilton 1939
A
- Claimant was a passenger who knew the driver was under the influence of drink.
- Defence of consent failed
- Knowing the risk did not = implied consent
14
Q
What does indicate implied agreement to the risk
A
- Risk is so great that it is the equivalent of “meddling with an unexploded bomb”
- Implied consent obtained.
- Defence of consent difficult to establish
15
Q
What does indicate implied agreement to the risk - Sports
A
- By willingly engaging in the sport
- Agree to the risks inherent to the sport
- But not to risks that are not inherent - eg fouls
16
Q
Agreed Voluntarily
A
Defence cannot succeed unless the claimant acted voluntarily
ie the claimant decided to subject themselves to the risk free of any
constraint.
Smith v Charles Baker S Sons [1891]
17
Q
Smith v Charles Baker S Sons [1891]
A
- Claimant was hit by a rock from a crane whilst at work. I
- requirement of voluntary consent was in addition to knowledge of the risk.
- Employees who know of the risks of their jobs are not necessarily voluntarily running those risks
- may have little real option if they wish to keep their job.
very difficult (although not impossible) to succeed with
the defence of consent where the claimant is an employee
18
Q
The concept of voluntarily agreeing to risks is relevant to
A
The concept of voluntarily agreeing to risks is relevant to rescue cases
19
Q
Baker v T.E. Hopkins S Sons Ltd [1959]
A
- Doctor was held to be a rescuer when trying to save some workmen trapped down a mine.
- Dr Baker had capacity, knowledge of the nature and extent
of the risk and had agreed to the risk. - Agreement to the risk was not voluntary.
- He acted out of an impulsive desire to save life rather than freely agreeing to the risk created by the defendant’s negligence.
20
Q
Consent may be negated by statute
A
- Section 149 of the Road Traffic Act 1988
- Section 2 of the Unfair Contract Terms Act 1977
- Section 65(1) of the Consumer Rights Act 2015
21
Q
Consent may be negated by statute
Section 149 of the Road Traffic Act 1988
A
- Prevents the use of consent by motorists facing
claims from their passengers. - A drunk driver cannot rely on consent to defeat the claim of a passenger who voluntarily accepts a lift and is injured as a result.
22
Q
Consent may be negated by statute
* Section 2 of the Unfair Contract Terms Act 1977
A
- Applies to defendants acting in the course of
business. - Section 2(1) prohibits defendants excluding or restricting liability for death or personal injuries resulting from negligence.
- Under s 2(2) other types of loss may be excluded, subject to a test of reasonableness.
- Section 2(3) makes it clear that a person’s agreement to or awareness of a contract term or notice purporting to exclude or restrict liability for negligence will not of itself
be token as indicating voluntary acceptance of any risk.
23
Q
Consent may be negated by statute
* Section 65(1) of the Consumer Rights Act 2015
A
- Prohibits traders, when dealing with consumers, from using contract terms/notices limiting or excluding liability for death or
personal injury through negligence. - Other damage is subject to s 62 - on exclusion clause is
only binding if it is fair. - Section 65(2) states that voluntary acceptance of risk cannot be
assumed merely because the consumer agreed or knew about the term
24
Q
Legal Test for Contributory Negligence
A
- Basis is 1(1) of the Low Reform (Contributory Negligence) Act 1945 (LRA)
- Where a person “suffers damage as the result partly of his own fault and partly of the fault of any other person”
- Claim not defeated but reduced
25
A claim for contributory negligence must establish
(Jones v Livox [1952] 2 OB 608):
(a) That the claimant failed to take **reasonable steps** for their own safety; and
(b) That **this failure contributed** to the claimant's damage.
26
Finding of contributory negligence
* Reduces the liability of a defendant in relation to the harm
their breach of duty has caused
* Reduced by a percentage the court thinks just and equitable having regard to the claimant's share in the responsibility
* Contributory negligence is therefore a **partial defence**.
27
The claimant failed to take reasonable steps for their own safety
* The claimant is required to take the same degree of care that a
**reasonable and prudent** person would take.
* The standard is objective.
28
Owens v Brimmell [1977]
* A passenger is guilty of contributory negligence where they knew the driver had consumed excessive alcohol
* They had gone drinking with the driver knowing they would later lose the capacity to appreciate the danger of being a passenger.
* Being drunk is not an excuse for failing to take reasonable steps for your own safety.
29
Sayers v Harlow UDC [1958] 1 WLR 623
* Claimant got stuck in the defendant's toilet cubicle.
* She attempted to escape through the gap between the door and ceiling and on her way down stood on the toilet roll holder.
* She fell and was injured.
* Her damages were reduced by 25% as she failed to take
reasonable care by attempting to rely on the unstable toilet roll holder.
30
Allowances are made for a failure to take reasonable steps for own safety for....
Claimants who have been placed in on emergency or difficult dilemma
ie claimants who are injured whilst trying to save themselves.
**Jones v Boyce (1816] 1 Stark lt-93**
31
Jones v Boyce (1816] 1 Stark lt-93
* Claimant was a passenger on the defendant's coach.
* Horse started to run away with the carriage due to the defendant's negligence, the claimant reasonably believed that the coach
was about to overturn and so jumped off and broke his leg.
* No contributory negligence. The claimant had acted reasonably in the situation.
* Defendant could not criticise the claimant's attempts to avoid the danger created by the defendant.
32
Where the claimant is a child,
* Court will take into account their age in determining the
standard of core to be expected
* A child will be found to have been contributorily negligent if
they fail to meet the standard of care appropriate.
**Gough v Thorne (1966] 3 All ER 398**
33
Gough v Thorne (1966] 3 All ER 398
* lorry driver stopped and waved for the 13-year-old claimant to cross the road.
* As the claimant emerged from behind the lorry without looking, she was hit by the defendant driver.
* No contributory negligence as the claimant had met the standard of an ordinary 13-year-old.
* Had she been on adult, it is likely she would have been contributory negligent for not checking
34
Rescuers & contributory negligence.
* Rescuers ore generally protected from contributory negligence.
* Baker v T.E. Hopkins [1959]
* Exception being Harrison v BRB (1981]
35
Harrison v BRB (1981]
* Court felt that protection for contributory negligence would not be
justified if the rescuer had negligently helped to create the emergency in the first place.
36
Nature of duty must also be considered
St George v Home [2008]
* Claimant was a prisoner who fell out of a top bunk bed during a seizure caused by withdrawal from drugs.
* Prison staff had failed to adequately look after him
* Inappropriate to reduce the claimant's damages on the basis that his own role in creating the addiction amounted to contributory negligence, because having told the prison officers about the risk of seizures, it **would not be equitable to reduce his damages**
37
Failure contributed to the claimant's damage, if not to the accident.
38
Froom v Butcher [1976] QB 286
* Failure to wear a seat belt will be contributory negligence if wearing a seat belt would have reduced or avoided
injury
* Lord Denning suggested a 25% reduction if the wearing of the
seat belt would have avoided injury, 15% if it would have reduced it and 0% if it would have made
no difference.
39
Reduction of damages
* Court has a discretion on how great a reduction to make to the claimant's damages.
* Generally expressed in percentage terms, taking into
account the respective culpability of the defendant and claimant
* What is just and equitable in all the circumstances
* Will likely order a greater reduction if the claimant contributed to the accident
40
Several defendants
(Fitzgerald v Lane [1989] AC 328).
Once it is known what the defendants as a whole should pay, the court determine how liability is shared between the defendants
41
ex turpi couso non oritur octio
'no action may be based on an
illegal cause'
42
'no action may be based on an
illegal cause'
ex turpi couso non oritur octio
43
Principles of illegality
* Desire to avoid granting a claim where this would produce inconsistency and disharmony in the law
* claimant should not be able to recover
damages for losses they suffer while engaged in a criminal activity,
44
Patel v Mirza [2016] UKSC 4-2
"offensive to public notions of the fair distribution of resources that a claimant should be compensated (usually out of public funds) for the consequences of his own criminal conduct"
45
Gray v Thomes Trains [2008] UKHL 33
* HoL agreed not to allow defendents claim after his stabbing and PTSD
* Claim inconsistent with the sentence of the Crim Courts
* Claimant sought compensation for those that were caused by the crime and not the defendants negligence
46
Difficulty in defining the limits of the defence
Delaney v Pickett [2011]
* Accident when transporting cannabis
* Criminal activity (the transporting of cannabis)
did not cause the accident and was incidental to the negligent driving,
47
Tort Law
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Decks in class (11)
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