3.7 Defences Flashcards
What are the 2 defences for tort law?
Contributory negligence and voluntary non fit injuria (consent)
What does the Law reform (contributory negligence) act 1945 say contributory negligence is?
Where a person sufferes damage partial through his own fault and partially through fault of D
- Partial defence
What is a case for contributory negligence
Revill v Newbery
Facts of Revill v Newbery
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
Held in Revill v Newbery
Using the defence of contributory negligence, D’s damages were reduced by 2/3s
What is meant by partial defence
divert some blameworthiness, but not all
What happens if defence of contributory negligence is successful
courts will apportion loss between the parties
What are the 2 requirements of contributory negligence
- C failed to take proper care under circumstances for their own safety. (Varies with certain circumstances, things like age are took into account)
- The failure to take proper care was a contributory cause of the damage suffered
What are some examples of the 2nd point
Failure to wear setabelt
failure to follow safety instructions
What is a case that illustrates the requirements of contributory negligence
Gough v Thorns (1966)
Facts of Gough v Thorns
Lorry slowed down to let some kids cross road. D crepted up with his car and crashed into children causing damages
Held in Gough v Thorns
Measured reasonableness of the child and showed they cannot be contributory to negligence
What is voluntary non fit injuria (consent)
willingly placing themselves in position of harm
There are 3 elements to volunatry non fit injuria, what are these?
- Voluntary
- Agreement
- Knowledge
explain ‘voluntary’
agreement must be freely entered
- If C cannot exercise free choice defence will not work
explain ‘agreement’
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
case for agreement
Smith v Charles baker and Sons
facts of Smith v Charles baker and sons
C was a construction worker, he would often have a crane lift stones over his head, one day a stone fell causing him injuries.
explain ‘knowledge’
C must have had knowledge of the full nature and extent of the risk
held in Smith v Charles baker and sons
Him having knowledge of possible risk wasnt enough. He did not consent to the lack of care
how are rescuers and sportsmen seen in regards to consent?
rescuers - not freely and voluntarily accepted the risk.
sportsmen - consenting to risk of injury which occurs ordinary of said sport
what is a case the illustrates the point of ‘knowledge’
Morris v Murray
Facts of Morris v Murray
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
Held in Morris v Murray
C was proven to have ‘accepted the risk’ as he knew the person was so drunk the aircraft ride would not be safe
In regards to occupiers liability how does consent work
no duty of care owed to a person who willingly accepts risks, ne need to establish agreement
Case for consent in occupiers liability
Tichener and British Railway Board (1983)
Facts of Tichener v british railway board
C, 15 year old girl, took a short cut through a trainline. As a result of this both her and her bf were injured
Held in Tichener v British Railway Board
Voluntary non fit injuria was successfull as a reaosnabel 15 year old girl would understand the risks
What are the 4 defences to private nuisance
ordinary use of land
statutory authority
act of god and nuisance arising naturally
perscription
case that illustrates ‘ordinary use of land’
Mills v southwark london borough council (2001)
facts of mills v southwark london borough council
C were tenants of council properties owned by D. C complained soundproofing was insufficient and could hear day to day activities from neighbours.
Held in Mills v Southwark London Borough Council
There was no nuisance as the use of flats was reasonable, claim failed.
explain statutory authority
Public authorities acting under power, like road workers
- only defence if nuisance doesnt exceed that which is authorised
Case for statutory authority
Allen v Gulf oil Refining Ltd
Facts of Allen v Gulf oil refining Ltd
D were constructing oil refinery, C brough action because of the smell, noise and vibrations
held in Allen b Gulf oil refining ltd
D was not liable as the construction of the refinery was authorised by act of parliment
Explain ‘act of god and nuisance arising naturally’
Event that happens independently of any human action
- complete defence
what is the exception to this
If occupier becomes aware of it and fails to remedy it within reasonable time, he may be laible for any damage caused
case that illustrates ‘act of god, or nuisance arising naturally’
Goldman v Hargrave
facts of Goldman v Hargrave
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
facts of Goldman v Hargrave
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
Held in Goldman v Hargrave
As d failed eliminate the risk, he became liable.
Explain ‘perscription’
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
case for ‘perscription’
coventry v lawrence
facts of coventry v Lawrence
D had a motorcross stadium going on since 1975. In 2006 C bought a house near it and complained aboiut the noise
Held in coventry v lawrence
D was not laible as stadium had gain perscriptive right for being there for over 20 years
What are the 4 defences to Rylands v Fletcher
Act of stranger
Act of God
Statutory Authority
Consent/Benefit
Explain ‘act of stranger’
if escape is caused by strangers where D had no control, and strangers actions were unreasonably foreseeable
- complete defence
Case for ‘act of stranger’
Perry v Kendricks Transport Limited
Facts of perry v Kendricks Transport Limited
D kept old coach on wasteland. C approached 2 boys who lit a match and dropped in petrol tank of coach, C suffered injuries.
Held in Perry v kendricks Transport Limited
D could not be liable as the ‘escape’ was brough out by act of stranger
explain ‘act of god’
Event that happens independently of any human action
- complete defence
Case for ‘act of god’ in ryland v fletcher
Carstairs v Taylor
Facts of carstairs v Taylor
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
Held in carstairs v taylor
D could not be liable as the rain and the rats actions were seen as an act of god
Explain ‘statutory authority’
Public authorities acting under power, like road workers
- only defence if nuisance doesnt exceed that which is authorised
Case for statutory authority in rylands v fletcher
green v Chelsea waterworks
Facts of green v Chelsea water works
Water main burts causing damage to C’s land, however D was authorised to keep the high pressure
Held in Green v Chelsea water works
D were not liable as the ‘escape’ wasnt due to negligence and the act was authorised by parliment
Held in Green v Chelsea water works
D were not liable as the ‘escape’ wasnt due to negligence and the act was authorised by parliment
Explain consent/benefit in rylands v fletcher
Is C recieves benefit from the thing accumulated, they may be deemed to have consented to the accumulation
Case for consent/benefit
Peters v Prince of wales theatre
Facts of Peters v Prince of Wales Theatre
C’s shop was damaged when water pipes from sprinkler system burst due to icy conditions
Held in Peters v Prince of Wales theatre
D not liable, sprinkler system was seen as a benefit for both C and D.
