DEFENCES Flashcards
WHAT IS THE CHARACTERISTIC FEATURE OF A DEFENCE?
Once the claim is prima facie proved by the claimant, the burden of proof shifts to the defendant to show (on the balance of probabilities) that there is something wrong with the claim
WHAT IS THE FUNCTION OF A DEFENCE TO A NEGLIGENCE CLAIM?
To reduce or eliminate the defendant’s liability for the damage suffered by the claimant
WHAT ARE THE TWO COMMON LAW DEFENCES?
- Ex turpi causa non oritur actio (criminal act)
- Volenti non fit injuria (consent)
WHAT DOES EX TURPI CAUSA MEAN?
No legal action can arise from a blameworthy cause.
This means that a claimant who is involved in a criminal act at the time they were injured may be held not to have cause of action.
WHAT TYPE OF DEFENCE IS THE EX TURPI CAUSA DEFENCE?
A complete defence
WHEN WILL AN EX TURPI CAUSA DEFENCE FAIL ON THE GROUND IF ILLEGALITY?
- There is a very close connection between the illegal activity of the claimant and;
- The injury which they suffer; and
- The damage arises directly out of the illegal activity; and
- It would be contrary to public policy to allow the claimant a remedy
WHAT IS THE ‘INEXTRICABLE LINK’ TEST IN RESPECT OF THE EX TURPI CAUSA DEFENCE?
For the defence to apply, there must be an inextricable link between the criminal act and the loss claimed
WHAT DOES VOLENTI NON FIT INJURIA MEAN?
No injury can be done to a willing person
WHAT TYPE OF DEFENCE IS THE VOLENTI DEFENCE?
A complete defence
It applies when the defendant can show that the claimant voluntarily consented, with knowledge of the risk, to the injury or the possibility of injury
WHAT MUST THE DEFENDANT SHOW FOR A DEFENCE OF VOLENTI?
That the claimant knew of the risks to which their conduct exposed them
IS THE DEFENCE OF VOLENTI APPLICABLE IN AN EMPLOYMENT SITUATION?
The defence may be applicable if the employer can establish that the employee had agreed to, and taken part in, the dangerous activity with full awareness of the risks
IS THE DEFENCE OF VOLENTI APPLICABLE IN RESCUE SITUATIONS?
No.
In rescue situations, a person put into a position where they feel morally or legally obliged to rescue someone else does not freely consent to the risk of injury
IS THE DEFENCE APPLICABLE TO VOLUNTARY PARTICIPANTS IN SPORTS?
Yes
ON THE WHOLE, WHEN DOES THE COURT TEND TO ACCEPT THE DEFENCE OF VOLENTI?
In extreme cases such as Morris v Murray [1990]
In this case, the claimant accepted the risk of injury by going up in an aeroplane in poor visibility with a pilot whom he knew to have drunk the equivalent of 17 shots of whiskey.
WHEN DOES THE DEFENCE OF VOLENTI NOT APPLY?
The defence of volenti cannot be used against passengers travelling in road vehicles (s149 Road Traffic Act 1988)
WHAT TYPE OF DEFENCE IS CONTRIBUTORY NEGLIGENCE?
A partial defence
WHAT DOES THE LAW REFORM (CONTRIBUTORY NEGLIGENCE) ACT 1945 SAY ABOUT CONTRIBUTORY NEGLIGENCE?
If the damage caused by the negligence of the defendant was partly caused or increased by the negligence of the claimant, damages may be apportioned so that the claimant only gets part of their damages
WHAT DOES THE DEFENDANT NEED TO PROVE TO ESTABLISH CONTRIBUTORY NEGLIGENCE?
That the claimant acted carelessly and failed to take reasonable care for their own safety
WHEN WILL CONTRIBUTORY NEGLIGENCE BE ESTABLISHED?
- If the claimant is partly to blame for the accident in which they are injured
- If the claimant puts themselves in a dangerous position which exposes them to the risk of involvement in the accident in which they are harmed
- If the claimant does not increase the risk of injury, but their failure to take reasonable care for their own safety increases the extent of the injury suffered
WHAT DID FROOM AND OTHERS V BUTCHER [1975] HOLD IN RESPECT OF CONTRIBUTORY NEGLIGENCE INVOLVING CAR PASSENGERS?
A car driver who had not been wearing a seat belt (at a time where seat belts were optional) should have his damages reduced by 25% as his head and chest injuries would have been avoided, or their extent reduced, if he was wearing a seatbelt
WHEN DID THE LAW CHANGE IN RESPECT OF SEAR BELTS?
In 1986 by statutory instrument which makes it compulsory for adults to wear seat belts in cars
WHEN WILL THE COURTS BE RELUCTANT TO HOLD THAT A CLAIMANT WAS CONTRIBUTORILY NEGLIGENT?
- Where the claimant is a child
- Where the claimant is an employee
- Where the claimant was a rescuer
- The court accepts that the claimant was in a difficult situation – this is known as the dilemma principle
- If a persons ‘contribution’ to their potential injuries is foreseeable to someone who has a duty of care towards them
WHAT IS A LIMITATION PERIOD?
The period in which claims must be made
WHAT IS THE LIMITATION PERIOD IN TORT LAW?
S2 Limitation Act 1980 (LA 1980) specifies that, in general, the limitation period for a claim in tort is six years from the date on which the claimant’s cause of action arose
WHAT TYPE OF DEFENCE IS A LIMITATION PERIOD?
A complete defence
WHEN DOES THE LIMITATION PERIOD START IF THE CLAIMANT IS UNDER A DISABILITY
When the claimant either ceases to be under the disability or dies (s28(1) Limitation Act 1980)
WHAT IS THE MOST COMMON FORM OF BEING UNDER A DISABILITY IN RESPECT OF LIMITATION PERIODS?
This is identified in s38(2) LA 1980 as being an infant – aged under 18.
The time limit for a personal injury claim in respect of a child does not start until either child reaches 18 or dies
WHAT IS THE MOST COMMON FORM OF BEING UNDER A DISABILITY IN RESPECT OF LIMITATION PERIODS?
This is identified in s38(2) LA 1980 as being an infant – aged under 18.
The time limit for a personal injury claim in respect of a child does not start until either child reaches 18 or dies
IF SOMEONE IS PERMANENTLY BRAIN DAMAGED, WHEN CAN A CLAIM BE STARTED?
At any time before their death as they remain under a disability for the rest of their life (Maga v Roman Catholica Archdiocese of Birmingham [2010])
WHEN WILL A CLAIM BE STATUTE-BARRED?
When the specified time elapses
WHAT IS THE LIMITATION PERIOD IN PERSONAL INJURY CASES?
Three years from the date on which the cause of the action arose which is the latest date of:
- The wrongdoing occurring
- The injury being sustained
- The claimant having knowledge of the injury (s11(4) Limitation Act 1980)
WHAT IS THE DATE OF KNOWLEDGE IN RESPECT OF PERSONAL INJURY CASES?
S14 Limitation Act 1980 defines ‘date of knowledge’ as the date when the claimant first knew that the injury was significant, that it was caused by the defendant’s actions and is able to identify who the defendant is
WHAT IS THE DATE OF KNOWLEDGE IN RESPECT OF PERSONAL INJURY CASES?
S14 Limitation Act 1980 defines ‘date of knowledge’ as the date when the claimant first knew that the injury was significant, that it was caused by the defendant’s actions and is able to identify who the defendant is
WHAT DID HAWARD AND OTHERS V FAWCETTS (A FIRM) AND ANOTHER [2006] HOLD IN RESPECT OF DATE OF KNOWLEDGE IN RESPECT OF PERSONAL INJURY CASES?
When deciding the date of knowledge of the facts which would have justified the claimant bringing a claim of negligence, the relevant date is not when the claimant first knew that had a claim but the earlier date when they first knew enough to begin investigating the possibility that the defendant might have been negligent
WHAT IS THE LIMITATION PERIOD WHEN THE CLAIMANT DIES AS A RESULT OF THE DEFENDANT’S ACTION?
Within three years of the cause of action arising
A fresh three-year period commences in favour of the claimants personal representatives or dependants
WHAT IS THE LIMITATION PERIOD WHEN THE CLAIMANT DIES AS A RESULT OF THE TORT BUT DOES NOT DISCOVER THEY HAD A CAUSE OF ACTION?
The fresh period starts on the later of the date of death and the date on which the personal representative or dependants had the knowledge necessary to bring a claim
WHAT IS LATENT DAMAGE?
Damage that is not apparent – such as damage to the foundations of a house
IN RESPECT OF LATENT DAMAGE, THE CLAIMANT HAS THE LONGER OF WHAT WHEN BRINGING A CLAIM?
- The normal six-year period, starting when the damage was done; and
- A three-year period that begins when the claimant discovered or ought to have discovered the damage
IN RESPECT OF LATENT DAMAGE, WHEN CAN A CLAIM NO LONGER BE MADE?
No claim can be raised more than 15 years after the date of the defendant’s negligence
WHAT IS AN EXCLUSION OR LIMITATION CLAUSE?
They attempt to exonerate potential defendants to a negligence claim, or one of the parties to a contract from damage or injury to the other
PRIOR TO 2015, WHAT PIECE OF LEGISLATION WERE EXEMPTION CLAUSES SUBJECT TO?
Unfair Contract Terms Act 1977
POST 2015, WHAT PIECE OF LEGISLATION WERE EXEMPTION CLAUSES SUBJECT TO?
Consumer Rights Act 2015
WHAT DOES S65 CONSUMER RIGHTS ACT 2015 / S2(1) UNFAIR CONTRACT TERMS ACT 1977 STATE IN RESPECT OF EXEMPTION CLAUSES?
A trader cannot exclude or restrict liability for death or personal injury resulting from negligence
WHAT DOES S62 CONSUMER RIGHTS ACT 2015 STATE IN RESPECT OF EXEMPTION CLAUSES?
A consumer is not bound by a term excluding or restricting liability for property damage if it is unfair.
WHAT DOES S2(2) UNFAIR CONTRACT TERMS ACT 1977 STATE IN RESPECT OF EXEMPTION CLAUSES?
Requires an assessment of the clause’s reasonableness.
The reasonableness test is defined in s11 UCTA 1977:
