4. Defences Flashcards
What are the 3 general defences avaliable in tort law after negligence has been established (Duty of care + breach of that duty) ?
- Consent
- Contributory Negligence
- Illegality
Is Conesnt a full defence?
Yes, the defence of consent will remove all liability.
What is required for a defence of consent to sucsueed?
- Knowledge of the Risk
- Acceptance of that risk
Who cannot consent to risks?
Children
Those with mental capacity issues.
Can cosent be used as a defence to people injured in vechiles driven by drunk drivers if they was aware they was drunk
No, consent cannot be used.
But damages can be reduced to reflect contributory negligence.
Can the defence of consent be used against employees undertaking work they know to carry significant risk?
No.
The common law duty of care should mean the defendants (employer) is aware of the risk and protects their employees accordingly.
Can the defence of consent work against someone who was hurt during sporting activities?
It depends on the circumstances.
Whilst you can consent, to lets say being tackled in football, that does not amount to consenting to a serious injury as a result of foul play
Can the defence of consent work against spectators of sporting activities?
Yes, injury’s relating to a lack of skill from a player can be regarded as consented to.
However, whilst spectators can be said to consent to a lapse of skill, they would not be expected to consent to reckless disregard for spectators safety (ie negligence.)
What is the effect of a sucesfull contributory negligence defence?
The Court may reduce damages to reflect the contributory negligence
What is Contributory Negligence?
Claimaints have a duty to take reasonable care of their own saftey. Thus, if they have contributed to the harm damages may be reduced.
This is based on the claimants injury’s and the extent they contributed to their injury’s (not the extent they contributed to the accident)
What are the 3 points considered when dealing with contributory negligence?
- Whether the claimant failed to exercise reasonable care for their own saftey
- Whether this failure contributed to the claimants damage
- To what extent the claimants damage should be reduced.
(i. What extent did the behaviour contribute?
ii, What is the culpability (balmeworthyness) of the claimaint?)
Can children be found to have contributed to negligence?
The younger the child, the less likley the court will find contributory negligence.
Generally children under 10 will not be held for contributory negligence.
What will the Courts consider when looking at employees contributory negligence?
The court will consider the claimaints conduct and working conditions.
Reckless disregard for an employers rules is likley to lead to contributory negligence.
Can rescures be found to have contributed to negligence if they are harmed when helping someone hurt by the defendants actions?
Courts are reluctant to punish rescures.
Thus, where a rescure has rushed into a dangerous situation to help others they will be judged by the standards of a reasonable rescuer.
Only if the rescuer had taken wholly unreasonable disregard for their own saftey would a finding of contributory negligence be relevent.
What is the effect of the defence of illegality?
It is a complete defence, and so no damages would be payable
