Defences

Question 1

Defence of consent?

Answer 1

COMPLETE DEFENCE
Consent
- Where claimant has consented to risk involved. Must show:
- Had valid capacity
1. Easy, unless they’re a young child
- Had full knowledge of nature and extend of risks
- Agreed to risks of injury
1. Can be express or implied.
2. Implied – but this is hard to establish
- Agreed voluntarily
Consent may be negated by statute –
- Drunk drivers can’t rely on it
- UCTA prohibits exclusion clauses

Question 2

Defence of contributory negligence?

Answer 2

PARTIAL DEFENCE
The legal test for contributory negligence is
- Where one person suffers damage as a result of his own fault and partly another person. Damages are therefore reduced.
- Must establish:
- The claimant failed to take reasonable steps for own safety
1. Same degree as a reasonable and prudent person – objective test
2. Allowances are made in emergency or difficult dilemma situations. RESCUERS ARE PROFECTED.
3. When they’re a child age is taken into account.
- That this failure contributed to claimant’s damage.
1. Contributed to damage suffered - need not contribute to accident.

In cases of seatbelts
25% reduction if it would have avoided injury
15% reduction if it would have reduced it
0% if it made no difference.

WHEN CONSIDERING FAILED TO TAKE REASONABLE STEPS FOR THEIR OWN SAFTEY
25% reduced for standing on something weak trying to escape.

Question 3

Defence of illegality?

Answer 3

Complete defence.
Claimant was involved in illegal activity. Trying to avoid granting a claim where this would produce inconsistency or disharmony.
- Test for illegality
- Consider underlying policy
- Patel v mirza – 2 step process
1. Has claimant committed an illegal act at time they suffered their loss.
2. Apply test in Patel, whether it would produce inconsistency and disharmony in law.
- Consider underlying purpose – Henderson
- To consider any other relevant public policy

Question 4

Defence of necessity?

Answer 4

Legal test for necessity
- Defendant acted to save life, limb or property.
- Must prove:
- They were acting in ana emergency to prevent harm to claimant, a third party or themselves- subjective test.
- Were not at fault for causing this emergency.