Defences

Question 1

Is consent a complete defence or a partial defence?

Answer 1

A complete defence - it the defence is successful, it will negate liability

Question 2

What elements are required for the defence of consent? (2 requirements)

Answer 2

1) Claimant has knowledge of the nature & extent of the risk

• Must know the full & specific nature of the risk they are consenting to
• Subjective: did the individual claimant in the individual situation have knowledge of the risks?

2) Claimant has voluntarily accepted the risk of harm

• If element of duress, or no other means of avoiding, will not be voluntary
• Must have capacity to give consent (no capacity if eg. child, clinical depression)
• Doing the activity will only be considered acceptance where it is so likely that the risk will materialise & you will be injured that merely taking part in the activity is consent

Question 3

Can employees voluntarily accept the risk of harm in the defence of consent?

Answer 3

Courts have generally found employees are acting under an obligation from their employer or an economic pressure ie. rare will have freely consented

(Nb. employees can consent to the risks inherent in a job, but they can’t consent to injuries caused by lack of care)

Question 4

Will rescuers be considered to voluntarily accept the risk of harm in the defence of consent?

Answer 4

Generally not, so long as their conduct is reasonable and a probable consequence of the defendant’s tort

Treated v sympathetically - unlikely to be punished if injured in a rescue attempt (eg. courts have found rescuer not acting voluntarily but under a compulsion to do good)

Question 5

When playing sport, do you voluntarily agree to the risk of harm in the defence of consent?

Answer 5

By taking part, consent to the risks inherent in the sport - but not to injuries caused by negligence

ie. When the sportsperson was injured, was this an injury that would occur in the course of the event, or was it due to anyone’s fault in any way?

Question 6

Is contributory negligence a complete defence or a partial defence?

Answer 6

Partial - if successful, compensation will be reduced in accordance with what is fair and reasonable

Question 7

What are the 2 elements of a successful defence of contributory negligence?

Answer 7

One. Claimant failed to take reasonable care (ie. did something they know puts them at risk of injury)

Two. Claimant’s failure to take reasonable care contributed to the loss (causal link: did what C did make a difference to the outcome)

Question 8

What standard will a child be judged by in the defence of contributory negligence?

Answer 8

Child will be judged by the standard of a reasonable child of that age

(Usually difficult to show a child has failed to take reasonable care, but no automatic bar to reducing damages of a child)

Question 9

What standard will a rescuer be judged by in the defence of contributory negligence?

Answer 9

Judged against the reasonable rescue act in the circumstance of the emergency

–> Will only be contributorily negligent if they have acted with a wholly unreasonable disregard for their own safety

Question 10

‘Agony of the moment’: how is contributory negligence assessed in an emergency?

Answer 10

Where the claimant must make a decision to save themselves based on the negligence of the defendant

Claimant is judged on the circumstances they were in at the time, even if with the benefit of hindsight they could have taken better care

(eg. Jones v Boyce: thought carriage about to tip so jumped out. Emergency - no time to accept risk
v
Sayers v Harlow: trapped in loo & climbed into next cubicle. Damages reduced because more effective ways of getting out & had been foolish even though emergency)

Question 11

Is illegality a complete or partial defence?

Answer 11

A complete defence - if successful it will negate liability

Question 12

What are the 3 elements of the defence of illegality?

Answer 12

a. The claimant has committed an illegal act

b. There is a direct link between the illegal act & the loss suffered

c. It would be contrary to public policy to award the claimant a remedy

eg. Passenger fleeing robbery in car, car crashes - close connection between illegal activity & injury, contrary to public policy to allow passenger a remedy

eg. Possessing drugs but cause of loss negligent driving - illegality will not be satisfied because illegal act not source of loss

Question 13

What is the defence of necessity?

Answer 13

Applies in emergencies, where preventing greater harm or to protect their own property or life

Question 14

What must the defendant to show to succeed in a defence of necessity? (3 elements)

Answer 14

a. There was an imminent threat of harm or damage

b. They had no alternative course of action to avoid the harm or damage

c. The harm caused by their actions was proportionate to the harm that would have otherwise occurred

Will NOT succeed if the defendant was the cause of the harm in the first place

Question 15

Where the claimant’s injuries would have been avoided had a seatbelt been work, what is the likely reduction in damages?

Answer 15

25%

(15% if injuries would have been lesser if wearing seatbelt)

Question 16

If a passenger is drunk, and accepts a lift from a driver who is drunk as well, and are injured in an accident caused by the driver’s intoxication, will they have their damages reduced?

Answer 16

Yes, even if they were too drunk to appreciate the driver’s intoxication

Nb. this will be in contributory negligence because not possible for the driver of a motor vehicle to use the defence of consent against a claimant who was a passenger in their vehicle.