Defences

Question 1

What are the three defences used for negligence?

Answer 1

• consent
• contributory negligence
• illegality

Question 2

When is the defence of consent applicable?

Answer 2

The defence of consent is applicable in cases where the claimant has consented to the risk(s) involved and so cannot complain of the consequential damage.

Question 3

What does the defendant need to show in order to succeed in the defence of consent?

Answer 3

• Had capacity to give valid consent to the risks
  Claimant must possess mental capacity
• Had full knowledge of the nature and extent of the risks
  Subjective on whether the particular claimant knew
• Agreed to the risk of injury
  Agreed to it expressly/ implied. Knowledge of the risk alone is not the same as consenting to it.
• Agreed voluntarily
  Claimant has to act voluntarily

Question 4

Is consent a partial defence?

Answer 4

No it is a complete defence

Question 5

What are the limits on consent?

Answer 5

Consent may be negated by statute.
- s149 Road Traffic Act 1998
Prevents the use of consent as a defence by motorists facing claims from their passengers
- UCTA & CRA
sections exclude liability for death and personal injury

Question 6

Is contributory negligence a partial defence?

Answer 6

yes, it gives the defendant the opportunity to reduce their liability

Question 7

What two elements must be established for contributory negligence?

Answer 7

• the claimant failed to take reasonable steps for their own safety
  standard is objective - what a reasonable and prudent man would have done
• this failure contributed to the claimants damage
  The claimant’s fault must contribute to the damage suffered, doesn’t have to contribute to the accident.
  (e.g. failure to wear a seat belt)
  (Jones v Linox)
  (s1(1) Law Reform (Contributory Negligence) Act 1945)

Question 8

What is the dilemma principle? (Contrib)

Answer 8

Allowances are made for claimants who have been placed in an emergency or difficult dilemma
(Dorning v PR of Paul Rigby).

Question 9

Are rescuers protected from contrib?

Answer 9

Yes generally, however in Harrison v BRB the court felt that such protection would not be justified if the rescuer had negligently helped to create the emergency in the first place.

Question 10

Is illegality a complete defence?

Answer 10

Yes

Question 11

Why does the defence of illegality exist?

Answer 11

• to avoid granting a claim where this would produce inconsistency and disharmony in the law, harming the integrity of the legal system.
• Allowing a claim which is intertwined with a crime could mean the law appearing to allow and prohibit something simultaneously.

Question 12

What is the two step approach you should take when considering whether illegality should apply?

Answer 12

Step 1: has the claimant committed an illegal (or possibly grossly immoral) act?
Step 2: apply the test inPatel v Mirza

Question 13

What is the illegality test in Patel v Mirza?

Answer 13

A. to consider the underlying purpose of the prohibition which has been transgressed and whether that purpose will be enhanced by denial of the claim
- criteria of centrality - that the illegal act is a central cause of the tort
B. to consider any other relevant public policy on which the denial of the claim may have an impact
C. to consider whether denial of the claim would be a proportionate response to the illegality, bearing in mind that punishment is a matter for the criminal courts.