7. Defences

Question 1

Complete Defences

Answer 1

• Consent (voluntary assumption of risk)
• Illegality

Question 2

Partial Defences

Answer 2

• Contributory Negligence

Question 3

Requirements for Defence of Consent to succeed

Answer 3

1. C had full and specific knowledge of the risk they took (and the danger)
2. C voluntarily took that risk

Question 4

Can an employer successfully raise the defence of consent against their employee in negligence?

Answer 4

Potentially, but it will be difficult to establish as employees are under various pressures to take workplace risks (economic, social etc.) and therefore it is not voluntary

Question 5

Can a defendant successfully argue that a rescuer consented to their negligence?

Answer 5

Potentially, but difficult to establish as rescuers are faced with pressures that make their ‘voluntary acceptance’ of the risk doubtful
- Rescuers do not consent if their behaviour is a reasonable outcome of the defendant’s action

Question 6

Elements of contributory negligence to establish

Answer 6

1. The claimant did not take reasonable care
2. This carelessness contributed to their injury

Question 7

Can a child be contributorily negligent?

Answer 7

Yes, they will be judged to a lesser standard

Question 8

When are rescuers contributorily negligent?

Answer 8

If they act without ANY regard for their own safety

Question 9

Seatbelts: If wearing a seatbelt could have WHOLLY avoided the claimant’s injury, how much will CN reduce the value of their damages?

Answer 9

By 25%

Question 10

If wearing a seatbelt could have reduced the severity of the claimant’s injuries, how much will their damages be reduced by in CN?

Answer 10

15%

Question 11

Requirements for the defence of illegality

Answer 11

1. Very close connection between C’s illegal activity and their injuries
2. Contrary to public policy to allow the claimant a remedy (illegal act must be bad enough in relation to the defendant’s breach)

Question 12

In what situation does statute prevent voluntary assumption of risk from being raised as a defence

Answer 12

s149 Road Traffic Act 1988 prevents the defence of voluntary assumption of risk from being raised by a driver against their passenger in any motor vehicle claim where there is compulsory insurance.

Question 13

if a passenger and a driver are both intoxicated and an accident occurs, will the passenger have their damages reduced by CN?

Answer 13

Yes, if the passenger KNOWS the driver is drunk, their damages can be reduced if they are injured in an accident caused by intoxication, even if they were TOO DRUNK to appreciate the intoxication of the driver