Defences

Question 1

What must D establish to use defence of consent?

Answer 1

C had full knowledge of untrue and extent of risk; and

C willingly consented to accept risk of being in cured due to D’s negligence.

Question 2

Explain the requirement for consent - C’a knowledge of risk.

Answer 2

C just have full knowledge of both nature and extent of risk which C is alleged to have assumed .

Not sufficient they simply know it exists.

Question 3

Explain the requirement for consent - C consented to the risk.

Answer 3

Not enough to prove C knew of risk.

C must have freely consented to risk of injury.

Question 3

Is getting in a car with drunk driver sufficient for defence of consent?

Answer 3

No provided they did not know how drunk they were.

In case of Morris - C was found to have consented to going for ride in D’s plane after they were drinking for hours. It was glaringly obvious just how drunk D was and therefore this constituted consent.

Question 4

What is the effect of s149 Road Traffic Act 1988?

Answer 4

Applies to any motor vehicle, where insurance for passengers is compulsory.

Defence of consent cannot be relied upon.

Question 5

What happens if C’s consent is given through fear or duress?

Answer 5

Consent will not be valid.

C must have been in a position to choose freely.

Question 5

Can defence of consent be used against employees who are brining proceedings against their employer?

Answer 5

No.

Employee acts under duty and therefore has no real freedom of choice when carrying out acts.

Question 6

When will rescuers not be considered to have consented to the risk of injury?

Answer 6

If:

1) they were acting to rescue persons or property endangered by D’s negligence.

2) they were acting under compelling legal or social or moral duty.

3) their conduct in all circumstances was reasonable and a natural and probable consequence of D’s negligence.

Question 6

What is the effect of a finding of contributory negligence?

Answer 6

Damages will be reduced:

1) to such extent as court thinks just + equitable;

2) having regards to C’s share of responsibility for the damage;

3) taking into account culpability of both parties ad causation (ie extent to which C’s carelessness caused or contributed to loss suffered).

Question 7

What are the two elements of contributory negligence?

Answer 7

1) carelessness on part of C; and
2) that carelessness contributed to C’s damage.

Question 8

Explain the idea of causation in relation to contributory negligence.

Answer 8

C needs to have contributed to loss they suffered, but does not have to have contributed to the accident itself.

Relevant issue is who caused the damage, not who caused the accident.

Question 9

Give a typical example of where C may be contributorily negligent.

Answer 9

Not wearing a seatbelt and subsequently being injured in an accident (injuries made worse by not wearing the seatbelt).

Question 10

How much would damages be reduced by if C fails to wear a seatbelt, and they suffer injuries which would have been avoided if they had worn a seatbelt?

Answer 10

25% reduction.

Question 11

How much would damages be reduced by if C fails to wear a seatbelt, and they suffer injuries which would have been less severe if they had worn a seatbelt?

Answer 11

15%.

Question 12

Will damages be reduced if the injuries would have been the same if C was wearing a seat belt?

Answer 12

No.

Question 13

Will damages be reduced under contributory negligence if C accepts lift from drunk driver?

Answer 13

Yes.

It does not matter if they were also drunk.

Question 14

With failure to wear seat belts/ crash helmets, what must D prove?

Answer 14

D must prove causal link between failure to wear seat belt/ crash helmet on the part of C, and C’s injuries.

Question 15

what is the test for contributory negligence?

Answer 15

Whether C has failed to take reasonable care for their own safety.

Measured against standard of reasonable person.

Question 16

Does the age of a child have an impact on whether contributory negligence will be found?

Answer 16

Yes.

Young children unlikely to be found contributorily negligent.

Older children more so, but often not judged to the same standard as an adult in the dame situation.

Question 17

What test do courts apply to determine whether a child is contributorily negligent?

Answer 17

Whether an ordinary child of C’s age would have taken more care for his safety than C did.

Question 18

What happens where injury to child is partly down to negligence of child’s parents?

Answer 18

Child not identified with the negligence of his parent.

This means their damages will not be reduced on account of negligence of their parents.

Question 19

Explain how contributory negligence of a rescuer is judged.

Answer 19

1) Judges against standard of reasonable rescuer (and allowances are made for the emergency situation they are in); and

2) rescuer will only be found contributorily negligent if they have shown (‘wholly unreasonable disregard for his or her own safety’).

Question 20

Can employees be found contributorily negligent?

Answer 20

Yes.

Question 21

Does the environment an employee work in have an effect on the likelihood of them being found contributorily negligent?

Answer 21

Yes.

Exposure to noise, repetitive tasks, strain etc in a factory or mine (for example) will mean court is likely to make finding of contributory negligence than an ordinary office worker not exposed to such conditions.

Question 22

What is meant by a claimant acting in the agony of the moment?

Answer 22

Where C feels like they are in danger, and acts putting themselves at risk in the agony of the moment, due to D’s negligence, C is not found to have been contributorily negligent.

Question 23

When will the defence of illegality be successful?

Answer 23

There must be a very close connection between illegal activity of C and the injury they suffer, so damage arises directly out of the illegal activity in a way contrary to public policy to allow C a remedy.

Question 23

Can illegality be used as a defence for negligence?

Answer 23

Yes.

If D and C involved in crime at the time, this may be a defence.

Question 24

If C’s parent is negligent, what course of action can D take?

Answer 24

They can claim a contribution under Civil Liability (Contribution) Act 1978. This does not however prevent C recovering all of their compensation from the client.