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A level Law: Tort Law > 3.7 Defences > Flashcards

3.7 Defences Flashcards

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1
Q

What are the 2 defences for tort law?

A

Contributory negligence and voluntary non fit injuria (consent)

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2
Q

What does the Law reform (contributory negligence) act 1945 say contributory negligence is?

A

Where a person sufferes damage partial through his own fault and partially through fault of D
- Partial defence

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3
Q

What is a case for contributory negligence

A

Revill v Newbery

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4
Q

Facts of Revill v Newbery

A

D owned an allotment which he slept in it with a shotgun most nights as it was prone to break ins. C brone into it, got shot and suffered injuries

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5
Q

Held in Revill v Newbery

A

Using the defence of contributory negligence, D’s damages were reduced by 2/3s

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6
Q

What is meant by partial defence

A

divert some blameworthiness, but not all

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7
Q

What happens if defence of contributory negligence is successful

A

courts will apportion loss between the parties

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8
Q

What are the 2 requirements of contributory negligence

A
  1. C failed to take proper care under circumstances for their own safety. (Varies with certain circumstances, things like age are took into account)
  2. The failure to take proper care was a contributory cause of the damage suffered
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9
Q

What are some examples of the 2nd point

A

Failure to wear setabelt
failure to follow safety instructions

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10
Q

What is a case that illustrates the requirements of contributory negligence

A

Gough v Thorns (1966)

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11
Q

Facts of Gough v Thorns

A

Lorry slowed down to let some kids cross road. D crepted up with his car and crashed into children causing damages

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12
Q

Held in Gough v Thorns

A

Measured reasonableness of the child and showed they cannot be contributory to negligence

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13
Q

What is voluntary non fit injuria (consent)

A

willingly placing themselves in position of harm

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14
Q

There are 3 elements to volunatry non fit injuria, what are these?

A
  1. Voluntary
  2. Agreement
  3. Knowledge
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15
Q

explain ‘voluntary’

A

agreement must be freely entered
- If C cannot exercise free choice defence will not work

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16
Q

explain ‘agreement’

A

can be expressed or implied, knowledge of the risk is not enough

expressed agreement - verbal

implied agreement - C demonstrates willingness to accept legal and physical risks

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17
Q

case for agreement

A

Smith v Charles baker and Sons

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18
Q

facts of Smith v Charles baker and sons

A

C was a construction worker, he would often have a crane lift stones over his head, one day a stone fell causing him injuries.

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19
Q

explain ‘knowledge’

A

C must have had knowledge of the full nature and extent of the risk

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19
Q

held in Smith v Charles baker and sons

A

Him having knowledge of possible risk wasnt enough. He did not consent to the lack of care

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20
Q

how are rescuers and sportsmen seen in regards to consent?

A

rescuers - not freely and voluntarily accepted the risk.

sportsmen - consenting to risk of injury which occurs ordinary of said sport

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21
Q

what is a case the illustrates the point of ‘knowledge’

A

Morris v Murray

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21
Q

Facts of Morris v Murray

A

After drinking alcohol the 2 friends decided to go flying. C and D were on the plane and it later crashed. C sued d’s representatives

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22
Q

Held in Morris v Murray

A

C was proven to have ‘accepted the risk’ as he knew the person was so drunk the aircraft ride would not be safe

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23
Q

In regards to occupiers liability how does consent work

A

no duty of care owed to a person who willingly accepts risks, ne need to establish agreement

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24
Q

Case for consent in occupiers liability

A

Tichener and British Railway Board (1983)

25
Q

Facts of Tichener v british railway board

A

C, 15 year old girl, took a short cut through a trainline. As a result of this both her and her bf were injured

26
Q

Held in Tichener v British Railway Board

A

Voluntary non fit injuria was successfull as a reaosnabel 15 year old girl would understand the risks

27
Q

What are the 4 defences to private nuisance

A

ordinary use of land

statutory authority

act of god and nuisance arising naturally

perscription

28
Q

case that illustrates ‘ordinary use of land’

A

Mills v southwark london borough council (2001)

29
Q

facts of mills v southwark london borough council

A

C were tenants of council properties owned by D. C complained soundproofing was insufficient and could hear day to day activities from neighbours.

30
Q

Held in Mills v Southwark London Borough Council

A

There was no nuisance as the use of flats was reasonable, claim failed.

31
Q

explain statutory authority

A

Public authorities acting under power, like road workers
- only defence if nuisance doesnt exceed that which is authorised

32
Q

Case for statutory authority

A

Allen v Gulf oil Refining Ltd

33
Q

Facts of Allen v Gulf oil refining Ltd

A

D were constructing oil refinery, C brough action because of the smell, noise and vibrations

34
Q

held in Allen b Gulf oil refining ltd

A

D was not liable as the construction of the refinery was authorised by act of parliment

35
Q

Explain ‘act of god and nuisance arising naturally’

A

Event that happens independently of any human action
- complete defence

36
Q

what is the exception to this

A

If occupier becomes aware of it and fails to remedy it within reasonable time, he may be laible for any damage caused

37
Q

case that illustrates ‘act of god, or nuisance arising naturally’

A

Goldman v Hargrave

38
Q

facts of Goldman v Hargrave

A

100 foot tree caught on fire after being struck by lightning on D land. Morning after wood was still smouldering and it caught fire again damaging neighbours property

38
Q

facts of Goldman v Hargrave

A

100 foot tree caught on fire after being struck by lightning on D land. Morning after wood was still smouldering and it caught fire again damaging neighbours property

39
Q

Held in Goldman v Hargrave

A

As d failed eliminate the risk, he became liable.

40
Q

Explain ‘perscription’

A

If D can prove nuisance has been going on for over 20 years and the C knew and failed to act, then he has a complete defence

41
Q

case for ‘perscription’

A

coventry v lawrence

42
Q

facts of coventry v Lawrence

A

D had a motorcross stadium going on since 1975. In 2006 C bought a house near it and complained aboiut the noise

43
Q

Held in coventry v lawrence

A

D was not laible as stadium had gain perscriptive right for being there for over 20 years

44
Q

What are the 4 defences to Rylands v Fletcher

A

Act of stranger

Act of God

Statutory Authority

Consent/Benefit

45
Q

Explain ‘act of stranger’

A

if escape is caused by strangers where D had no control, and strangers actions were unreasonably foreseeable
- complete defence

46
Q

Case for ‘act of stranger’

A

Perry v Kendricks Transport Limited

47
Q

Facts of perry v Kendricks Transport Limited

A

D kept old coach on wasteland. C approached 2 boys who lit a match and dropped in petrol tank of coach, C suffered injuries.

48
Q

Held in Perry v kendricks Transport Limited

A

D could not be liable as the ‘escape’ was brough out by act of stranger

49
Q

explain ‘act of god’

A

Event that happens independently of any human action
- complete defence

50
Q

Case for ‘act of god’ in ryland v fletcher

A

Carstairs v Taylor

51
Q

Facts of carstairs v Taylor

A

C stored rise on ground floor of a warehouse, D who used upstairs floor had a rat gnawed through a gutter box, caused water to drain. Heavy rainfall caused roof to leak and damage rice

52
Q

Held in carstairs v taylor

A

D could not be liable as the rain and the rats actions were seen as an act of god

53
Q

Explain ‘statutory authority’

A

Public authorities acting under power, like road workers
- only defence if nuisance doesnt exceed that which is authorised

54
Q

Case for statutory authority in rylands v fletcher

A

green v Chelsea waterworks

55
Q

Facts of green v Chelsea water works

A

Water main burts causing damage to C’s land, however D was authorised to keep the high pressure

56
Q

Held in Green v Chelsea water works

A

D were not liable as the ‘escape’ wasnt due to negligence and the act was authorised by parliment

56
Q

Held in Green v Chelsea water works

A

D were not liable as the ‘escape’ wasnt due to negligence and the act was authorised by parliment

57
Q

Explain consent/benefit in rylands v fletcher

A

Is C recieves benefit from the thing accumulated, they may be deemed to have consented to the accumulation

58
Q

Case for consent/benefit

A

Peters v Prince of wales theatre

59
Q

Facts of Peters v Prince of Wales Theatre

A

C’s shop was damaged when water pipes from sprinkler system burst due to icy conditions

60
Q

Held in Peters v Prince of Wales theatre

A

D not liable, sprinkler system was seen as a benefit for both C and D.

A level Law: Tort Law (16 decks)

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