9 - Defences

Question 1

The Law Reform act 1945

Answer 1

Provides that contributory negligence is a partial defence
this means that courts can apportion loss between parties to make a fairer outcome than a complete defence

Question 2

Section 1 (1) of The law reform act 1945

Answer 2

‘where a person suffers damage as a result partly of his own fault and partly the fault of another, a claim shall not be defeated by reason of the fault of the person suffering damage’

Question 3

Requirements of contributory negligence

Answer 3

1. The C failed to take proper care in the circumstances for their own safety
2. The failure to take care was a contributory cause of the damage suffered

Question 4

1.C fails to take proper care in the circumstances for their own saftey

Answer 4

Lack of proper care for own safety is not the same as breach of duty of care . the circumstances are taken into account - including the age of the claimant

Question 5

Gough v Thorns 1966

Answer 5

A very young child cannot be liable for contributory negligence

Question 6

2. Failure to take care was a contributory cause of the damage suffered

Answer 6

failure to wear a helmet
failure to wear seatbelt
suicide
failure to follow saftey instructions

Question 7

Froom v butcher 1976

Answer 7

failure to wear a seatbelt

Question 8

What type of defence is contributory negligence?

Answer 8

A partial defence

Question 9

Consent

Answer 9

requires a freely entered and ‘voluntary agreement by the claimant in full knowledge of the circumstances’

Question 10

What type of defence is consent?

Answer 10

A complete defense, a successful defense absolves the defendant of all liability

Question 11

What are the elements of consent?

Answer 11

Voluntary
Agreement
Knowledge

Question 12

Voluntary

Answer 12

The agreement must be freely and voluntarily entered
If the C is not in a position to exercise free choice the defense will not succeed

Question 13

Agreement

Answer 13

This may be expressed or implied. an implied agreement may exist where the claimant demonstrates a willingness to accept legal risks aswell as psychical risks

Question 14

Smith V Charles Baker and sons 1891

Answer 14

workers were moving stones, one fell and hit the c
in employment, knowing a risk exists is not equated to agreeing with it

Question 15

Knowledge

Answer 15

The claimant must have full knowledge of the nature and risk that they ran
a rescuer is not regarded as freely and voluntarily accepting the risk
sports players consent to the risk

Question 16

Morris v Murray 1991

Answer 16

Choosing to get on a boat operated by a drunk man is accepting the risk

Question 17

Haynes v harwood 1935

Answer 17

rescuers do not freely accept risks