2): Remedies and Defences Flashcards
What is the defence of Volenti non fit injuria?
voluntary assumption of risk,
claimant consented to the risk of injury and cannot claim damages.
complete defence
What must a defendant prove for the Volenti defence to succeed?
Claimant’s Knowledge of Risk – The claimant must have full knowledge of the nature and extent of the risk.
Claimant’s Consent – The claimant must have freely consented to the risk. Mere awareness of the risk is not sufficient.
What is the defence of contributory negligence?
partial defence where the claimant was partly to blame for the damage suffered, leading to a reduction in damages.
What are the two elements of contributory negligence?
Carelessness on the Claimant’s Part – The claimant failed to take reasonable care.
Contribution to the Damage – The claimant’s carelessness contributed to the harm suffered.
How does a court calculate the reduction in damages for contributory negligence?
First, calculate the full amount of damages as if no contributory negligence existed.
Then reduce the award based on the claimant’s share of fault.
What is the illegality defence in negligence?
A complete defence where the courts do not assist a claimant seeking damages for harm suffered due to illegal conduct.
What are the two requirements for the illegality defence to succeed?
Close Connection – There must be a link between the claimant’s illegal act and their injury.
Public Policy – The court considers whether granting a remedy would be against public policy.
What is vicarious liability?
when an employer is held liable for a tort committed by their employee.
How is vicarious liability different from employer’s liability?
Vicarious liability is strict liability for an employee’s actions.
Employer’s liability is about the employer’s own negligence in ensuring a safe workplace.
What are the three stages for determining vicarious liability?
Was the tortfeasor an employee of the defendant?
Did the employee commit a tort?
Was the tort committed in the course of employment?
How is employment status determined for vicarious liability?
Courts consider:
Control test – Did the employer control how work was done?
Terms of the contract – Was the worker treated as an employee?
Business test – Was the worker self-employed or dependent on the employer?
Can an employer be vicariously liable for an independent contractor?
Generally no, unless:
The employer owed a non-delegable duty to claimant.
AND
The contractor’s act breached that duty.
What types of acts are considered “in the course of employment”?
Wrongful acts authorised by the employer.
Authorised acts done in an unauthorised way.
Expressly prohibited acts that further the employer’s business.
Intentional torts (e.g., criminal acts) with a close connection to the job (Lister principle).
When is an employer not vicariously liable for an employee’s actions?
When the act has nothing to do with the employment, even if done during work hours.
