Defences

Question 1

What is the difference between a denial and a defence?

Answer 1

Denial: Where D argues that P has not established one of the relevant elements of the wrong.

Defence: Where D argues that, although P has established all elements of the wrong, there is a reason why they should not be held liable.

Question 2

What are the defences to negligence?

Answer 2

• Volenti non fit injuria
• Contributory negligence
• Illegality

Question 3

Where does the burden of proof lay?

Answer 3

• P bears the burden of establishing the elements of the wrong
• D bears the burden of establishing defence

Question 4

What is volenti non fit injuria?

Answer 4

Where P is fully aware of the nature and severity of the risk posed by D’s potential breach, and has fully accepted that risk.

Question 5

What are the requirements of volenti?

Answer 5

• Did P fully appreciate the nature of the precise risk exposed by D’s potential breach of duty?
• Did P fully accept the risk at their own expense?

Question 6

Volenti railway case

Answer 6

Titchener v British Railways Board 1984

Confirms that volenti applies when the claimant knowingly and willingly accepts a risk, and crucially, that a person can consent to an obvious danger even without fully appreciating every detail of the risk.

Question 7

Volenti drunk idiots case

Answer 7

Morris v Murray 1991

Two geezers get hammered out of their mind and go on a flight in D’s plane. Not only were they battered but weather was very bad. They crash, D dies but P survives and tries to sue D’s family, who argue volenti.

Court rules P knew or should have known there was a extremely high risk of an accident. Although he was battered, he was cognitively present enough to accept the risk and knew that the pilot was too drunk to discharge his duty of care.

However, short of situations as extreme as this, its hard for volenti to be proven.

Question 8

What is contributory negligence?

Answer 8

Law Reform (Contributory Negligence) Act 1945 s. 1

D argues that P has, in some way, also contributed to the damage they have suffered.

A partial defence, where P still wins but the court may reduce the amount of damages awarded, due to them being the author of their own downfall too.

Question 9

What are the relevant factors in contributory negligence?

Answer 9

What was the relative ‘blameworthiness’ of P’s conduct?

What was the causative potency of P’s conduct?

Question 10

Contributory case

Answer 10

Jackson v Murray 2015
Girl

Question 11

Sayers v Harlow 1958

Answer 11

Woman trapped in portaloo, stands on toilet paper holder to escape, it breaks and she gets injured. Court says its fair to attempt escape but how she did it was not reasonable.

Her act partially broke the causal chain.
The company still must pay compensation but only 3/4 of it as court say the liability for the injury was 75% on the company and 25% on her (contributory negligence).

Question 12

What is illegality?

Answer 12

Where P’s loss, or the circumstances giving rise to the injury, were connected to illegal conduct so no damages.