5 - TORT - Defences Flashcards

1
Q

What possible defences are there for negligence & what type of defence are they?

A
  • Consent: complete defence ๐Ÿค
  • Necessity: complete ๐Ÿšจ
  • Illegality: complete ๐Ÿ‘ฎ
  • Contributory Negligence: partial ๐Ÿคก
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2
Q

What are the requirements for consent defence?

A
  1. Mental capacity ๐Ÿคช
  2. Full knowledge of risks๐Ÿง 
  3. Agreed to risk of injury ๐Ÿค
  4. Voluntarily ๐Ÿค—
    - For sport, players consent to risks inherent in that sport
    - Cannot be used by motorists with claims from passengers
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3
Q

What cases are there for consent?

A

C was drunk and accepted to fly with drunken pilot - consented soo obviously risky ๐Ÿป๐Ÿ‘จโ€โœˆ๏ธ๐Ÿ›ฉ๏ธ

C was passenger of drunk driver - knowing of risk didnโ€™t imply consent of risk๐Ÿป๐Ÿš™๐Ÿ˜ตโ€๐Ÿ’ซ๐Ÿ™„

C hit by a rock at work - Knew of risk but did not consent (v. hard for employee to consent).๐Ÿ—ฟ๐Ÿค•

Dr went down a mine to save workmen but died from fumes. Agreement was not voluntary as acted out of desire to save lives. โ›๏ธ๐Ÿ•ณ๏ธ๐Ÿฆธ๐Ÿ˜ถโ€๐ŸŒซ๏ธโ˜ ๏ธ

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4
Q

What are the requirements for an illegality defence?

A

C involved in illegal act at time loss suffered
1. C did an illegal act
2. Consider: underlying purpose of prohibition; relevant public policy; is denial of claim proportionate to illegality
Where loss caused directly by illegal act, defence applies - where just context, wonโ€™t apply

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5
Q

What cases are there for illegality?

A
  • D gave C PTSD. C went on to murder then sued D for their loss of earnings whilst in prison. Not allowed - ๐Ÿคช๐Ÿ—ก๏ธ๐Ÿ‘จโ€๐Ÿซ
  • D crashed with C whilst transporting cannabis. Defence not available as crash wasnโ€™t sufficiently connected to criminal act. Not allowed ๐Ÿšฌ๐Ÿš–๐Ÿ’ฅ
  • C rode pillion on Dโ€™s motorbike after encouraging D to ride - Defence allowed as crime directly related to injury๐Ÿป๐Ÿ๏ธ๐Ÿ’ฅ๐Ÿ˜ฌ
  • sue for return of money sent for insider trading - Defence not available. ๐Ÿง‘โ€๐Ÿ’ป๐Ÿค‘
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6
Q

What are the requirement for a defence of contributory negligence?

A

C has some responsibility for damage suffered & deduction made to damages to reflect this
- C failed to take reasonable steps for own safety (that of a reasonable & prudent person)
- Failure contributed to damage

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7
Q

What are the cases for contributory negligence?

A
  • passenger of drunken driver
    ๐Ÿป๐Ÿ›ž
  • used toilet roll holder to try and escape from toilet cubicle
    ๐Ÿšฝ๐Ÿงป๐Ÿคช๐Ÿค’
  • jumped off run-away coach not negligent as D had caused the emergency
    ๐Ÿด๐Ÿค ๐Ÿคฌ๐Ÿ˜‰
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8
Q

What allowances are there for the C for contributory negligence?

A
  • C placed in emergency ๐Ÿšจ ๐Ÿฆธโ€โ™‚๏ธ
  • C is a child (take age into account) ๐Ÿ‘ถ

NOTE:

Rescuers generally protected unless created the risk
Nature of duty considered

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9
Q

What is required to prove a necessity defence?

A
  1. Acted in an emergency to prevent harm to C, 3rd party or themselves
  2. They didnโ€™t cause the emergency
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10
Q

What is vicarious liability?

A

Where one party is held liable for torts of another, because of their specific relationship - here in employer context

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11
Q

What test is applied for vicarious liability?

A
  1. Tort committed (by employee)
  2. Employee is an employee of employer, or in a relationship akin to employment
  3. Tort committed in course of employment
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12
Q

What factors are considered when identifying an employment relationship?

A
  • Remuneration & mutuality of obligations: employee being paid & employer providing work that the employee must do (0 hour contracts unlikely to be held as employment)
  • Control: the more control, the likelier an employee relationship
  • All other contractual factors consistent with employment e.g. tools & equipment provided; tax/PAYE treatment; benefits
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13
Q

What factors are considered for doubtful cases, to determine a relationship akin to employment?

A
  • sufficiently analogous to employment to make it fair, just & reasonable
  • Employer more likely to be able to compensate C
  • Tort committed due to activity undertaken on employers behalf
  • under employerโ€™s control
  • activity part of employerโ€™s business activity
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14
Q

Where an employer lends an employee, who is vicarious liable?

A

Still the original employer (although both employers could be)

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15
Q

What test is applied to show the tort was committed in course of employment? (for vicarious liability)

A
  • What functions entrusted to employee?
  • Was there sufficient connection between position in which they were employed & the wrongful conduct to make it fair, just & reasonable to hold employer liable?
  • Lunch breaks reasonably expected; are they going about employerโ€™s business at time?
  • If act unauthorised/specifically prohibited, seen as โ€˜frolic of their ownโ€™
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16
Q

Delete

A

Yes