defences

Question 1

what are the two defences that can be raised to any tort

Answer 1

contributory negligence, consent

Question 2

what has changed in the effect of contributory negligence

Answer 2

contributory negligence used to be a full defence however it has now changed so that damages are simply reduced

Question 3

what is an important rule for contributory negligence

Answer 3

only works if C and D are both partially responsible for harm caused to C

Question 4

what is a case for contributory negligence that involved a toilet

Answer 4

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

Question 5

what case saw a finding of 100% contributory negligence

Answer 5

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.

Question 6

what is a case for contributory negligence involving a seatbelt.

Answer 6

Froom. the passenger suffered greater injuries than what would have been the case if they were wearing a seatbelt so damages were reduced.

Question 7

what is a case for contributory negligence that involved smoking and asbestos

Answer 7

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%.

Question 8

what is consent in tort and what is the effect of a successful plea

Answer 8

consent is a voluntary assumption of the risk of harm. If D pleas consent succesfully, C will be awarded no damages.

Question 9

what three things does the defendant have to show to successfully plea consent

Answer 9

1. C’s knowledge of the precise risk involved
2. C’s exercise of free choice
3. A voluntary assumption of the risk

Question 10

what is a case where the claimant had no choice but to accept the risk.

Answer 10

Baker. c complained multiple times about the danger of work. he had no choice but to work therefore had not consented to the danger.

Question 11

what is the case for obvious risks in consent

Answer 11

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.

Question 12

what is a case for consent involving football

Answer 12

condon. footballer was held liable for breaking another footballer’s leg in a foul tackle. teh other footballer did not consent to foul play.

Question 13

what torts are there specific defences to

Answer 13

nuisance, rylands v fletcher, and occupiers liability

Question 14

what can an occupier do to avoid liability

Answer 14

extend, restrict, modify or exclude his duty

Question 15

what is the way occupiers can aviod liability beginning with a W

Answer 15

Warnings.

Question 16

explain warnings

Answer 16

a warning is ineffective unless ‘in all the circumstances it was enough to enable the visitor to be reasonably safe’

Question 17

what is a case where the warning wasnt sufficient

Answer 17

rae. a warning sign wasnt sufficient to warn against a deep pit so the occupier was liable.

Question 18

what is a case for obvious risks

Answer 18

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.

Question 19

what is the way occupiers can avoid liability beginning with an E

Answer 19

Exclusion clauses.

Question 20

what is a case where exclusion clauses were sufficient

Answer 20

ashdown. the claimant could not receive injuries sustained in a shunting yard because notices excluding liability were brought to her attention.

Question 21

what four things can exclusion clauses not be used for and what is the act for this

Answer 21

1. 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

Question 22

what can a defendant rely to avoid liability for nuisance

Answer 22

statutory authority

Question 23

explain statutory authority

Answer 23

most elements of nuisance are now contained in statutory form, therefore are regulated.

Question 24

what are four examples of statutory authority

Answer 24

planning permission, prescription, social utility, and ‘what if the claimant came to the nuisance?’

Question 25

what is a case for planning permission

Answer 25

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.

Question 26

what is case for prescription

Answer 26

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.

Question 27

what is the case for if the claimant came to the nuisance

Answer 27

lawrence

Question 28

explain social utility

Answer 28

when the social benefit of the harmful activity by the defendant outweighs harm to the claimant

Question 29

what is a case for social utility

Answer 29

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.

Question 30

what are the six defences for rylands and fletcher

Answer 30

1. Consent
2. Actions of a stranger
3. Acts of god
4. statutory authority
5. wrongful act of a third party
6. contributory negligence

Question 31

what is a case for consent as a defence to rylands v fletcher

Answer 31

peters. saw that claimants will also have consented if there is a common benefit for all occupants.

Question 32

what is the case for actions of a stranger

Answer 32

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

Question 33

what is a case for acts of god

Answer 33

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.

Question 34

what is a case for wrongful act of a third party

Answer 34

styrene