defences Flashcards
what are the two defences that can be raised to any tort
contributory negligence, consent
what has changed in the effect of contributory negligence
contributory negligence used to be a full defence however it has now changed so that damages are simply reduced
what is an important rule for contributory negligence
only works if C and D are both partially responsible for harm caused to C
what is a case for contributory negligence that involved a toilet
sayers. lady was trapped in a toilet due to negligent maintenance. In a rush to get out, she stood on the toilet roll holder and fell. council was liable for this but the damages were reduced by 25% because of the careless manner in which she tried to escape
what case saw a finding of 100% contributory negligence
jayes. C lost his finger at work whilst cleaning machinery. Defendants were liable, however the CoA found the claimant to be 100% negligent because he had taken the guard of the machine.
what is a case for contributory negligence involving a seatbelt.
Froom. the passenger suffered greater injuries than what would have been the case if they were wearing a seatbelt so damages were reduced.
what is a case for contributory negligence that involved smoking and asbestos
Badger. Claimant died of lung cancer aged 63. D admitted breach of statutory duty, exposing his workers to asbestos. Claimant also smoked cigarettes. Claimant was aware of the risk of smoking so damages were reduced by 20%.
what is consent in tort and what is the effect of a successful plea
consent is a voluntary assumption of the risk of harm. If D pleas consent succesfully, C will be awarded no damages.
what three things does the defendant have to show to successfully plea consent
- C’s knowledge of the precise risk involved
- C’s exercise of free choice
- A voluntary assumption of the risk
what is a case where the claimant had no choice but to accept the risk.
Baker. c complained multiple times about the danger of work. he had no choice but to work therefore had not consented to the danger.
what is the case for obvious risks in consent
Gledhill. worker was injured when a pig fell on him, but this was an obvious, well known risk of the work so there was consent.
what is a case for consent involving football
condon. footballer was held liable for breaking another footballer’s leg in a foul tackle. teh other footballer did not consent to foul play.
what torts are there specific defences to
nuisance, rylands v fletcher, and occupiers liability
what can an occupier do to avoid liability
extend, restrict, modify or exclude his duty
what is the way occupiers can aviod liability beginning with a W
Warnings.
explain warnings
a warning is ineffective unless ‘in all the circumstances it was enough to enable the visitor to be reasonably safe’
what is a case where the warning wasnt sufficient
rae. a warning sign wasnt sufficient to warn against a deep pit so the occupier was liable.
what is a case for obvious risks
staples. some risks are so obvious that they do not require a warning. wet algae ona high wall was so obvious it didnt need a warning.
what is the way occupiers can avoid liability beginning with an E
Exclusion clauses.
what is a case where exclusion clauses were sufficient
ashdown. the claimant could not receive injuries sustained in a shunting yard because notices excluding liability were brought to her attention.
what four things can exclusion clauses not be used for and what is the act for this
- cannot apply to a person entering under a legal right 2. cannot apply to strangers 3. cannot apply to children, 3. not allowed for death or injury. Unfair Contract Terms Act 1977
what can a defendant rely to avoid liability for nuisance
statutory authority
explain statutory authority
most elements of nuisance are now contained in statutory form, therefore are regulated.
what are four examples of statutory authority
planning permission, prescription, social utility, and ‘what if the claimant came to the nuisance?’
what is a case for planning permission
wheeler. planning permission said that pigs had to be kept at a certain distance. However, this was not enough to prevent D from being liable for nuisance.
what is case for prescription
Lawrence, motor cross event that had been permitted for 20 days a year for the past 16 years could not be a nuisance. If planning permission has been granted that changes the character of the locality it will make it difficult to pursue a claim.
what is the case for if the claimant came to the nuisance
lawrence
explain social utility
when the social benefit of the harmful activity by the defendant outweighs harm to the claimant
what is a case for social utility
Dunne. gas escaped from a gas maine and was ignited, causing a series of explosions which lead to injuries. D was not liable, courts said the gas company had greater interest to the community.
what are the six defences for rylands and fletcher
- Consent
- Actions of a stranger
- Acts of god
- statutory authority
- wrongful act of a third party
- contributory negligence
what is a case for consent as a defence to rylands v fletcher
peters. saw that claimants will also have consented if there is a common benefit for all occupants.
what is the case for actions of a stranger
Perry. stranger took the lid of a petrol tank. this caused a child to be seriously injured when a match was thrown at the tank. there could not be liability because the act of a stranger eliminated any foreseeability
what is a case for acts of god
nichols. freak thunderstorms and torrential rain broke the banks of an artificial lake. the weather was so extreme and unforeseeable that there could be no liability.
what is a case for wrongful act of a third party
styrene
