Defences Flashcards
A man who was committing a burglary intended to steal computer equipment from a warehouse. The man broke the lock on a door in the warehouse to enter a room. A sign on the door stated:
‘Danger – Risk of Electric Shock – Keep Out.
No liability is accepted for any loss or damage suffered by unauthorised entrants.’
The man suffered an electric shock that caused serious burns to his hand when he touched an exposed electricity cable in the room. The warehouse knew that the electricity cable was unsafe and in need of repair. The man is suing the warehouse in tort under occupiers’ liability for his personal injury.
Can the warehouse rely on the defence of illegality?
A-Yes, because the man had full knowledge of the risk of electric shock and willingly accepted that risk by breaking into the room.
B-Yes, because the man’s injuries arose directly as a result of the serious crime he was committing.
C-No, because the courts have determined that the defence of illegality does not apply in these circumstances.
D-Yes, because a reasonable person would not have ignored the sign and entered the room.
E-No, because it is not possible to exclude liability for the man’s injuries.
C is the correct answer. Caselaw (Revill v Newbery [1996]) has established that the defence of illegality cannot be relied upon where a trespasser is bringing a claim under the Occupiers’ Liability Act 1984.
A is wrong because it sets out the elements of the defence of consent/ voluntary acceptable of risk and not the defence of illegality.
B is wrong because, while it does correctly set out the elements of the defence of illegality, this defence is not applicable to the facts of the scenario.
D is wrong because it sets out an element of the defence of contributory negligence and not the defence of illegality.
E is wrong because, while it is not possible to exclude liability under the Occupiers’ Liability Act 1984, the question refers to the defence of illegality.
Defence of illegality means that a claim can be defeated if it involves the claimant’s own illegal conduct.
A man and a woman spent the evening together at a friend’s birthday party. They both consumed a large number of alcoholic drinks and were both very drunk. The man accepted a lift home in the woman’s car at the end of the party. The man fell asleep as soon as the woman started driving the car.
Ten minutes into the journey the woman drove her car into a tree, killing herself and severely injuring the man.
The man has sought a solicitor’s advice on bringing a claim for compensation for his injuries.
What advice should the solicitor give the man on the possible defences that may be raised if he pursues a claim in negligence against the woman’s estate?
A-The man is unlikely to be found to have been contributory negligent because he was too drunk to realise the risk he was taking by accepting a lift in the woman’s car.
B-The man is unlikely to receive any compensation because he had full knowledge of the risk that he was taking by accepting the lift in the woman’s car and he willingly accepted the risk of being injured.
C-The man is unlikely to receive any compensation because the woman’s act of driving the car when drunk was an illegal act.
D-The man is likely to be found to have been contributory negligent and any damages he receives will be reduced.
E-The man is unlikely to be found to have been contributory negligent because he was asleep at the time and did not cause the woman to drive into the tree.
D is the correct answer. The man is likely to be found to have been contributory negligent because he accepted a lift off a driver who he knew to be drunk.
A is wrong because self-induced intoxication cannot be used as an excuse by claimants for failing to take reasonable care of themselves (Owens v Brimmell [1997]).
B is wrong because the defence of consent/ voluntary assumption of risk cannot be relied upon by a driver in claims against them by their passengers (s. 149 Road Traffic Act 1988).
C is wrong because the defence of illegality focuses on whether the claimant was committing an illegal act and not whether the defendant was. The man was asleep at the time of the incident and there is nothing on the facts to suggest that the claimant was involved in a joint criminal enterprise (Pitts v Hunt [1990]).
E is wrong because for the defence of contributory negligence to apply, the claimant does not need to have contributed to the cause of the incident. The claimant only needs to have contributed to the harm that they have suffered.
A client was driving his car one evening in rush hour traffic. Seeing that the traffic was queuing ahead, the client slowed down. However, the driver of a lorry immediately behind him was not paying attention and collided with the rear of the client’s car. The client was not wearing his seat belt and as a consequence of the collision, struck his head on the windscreen of his car and his chest struck the steering wheel. Medical evidence obtained on the client’s behalf confirms that had he been wearing his seatbelt, he would not have been injured at all. Damages have been agreed in principle at £10,000 but the insurers of the lorry driver are seeking to reduce damages due to your client’s failure to wear his seatbelt.
Based on the above, what amount is your client likely to receive in damages?
A-£0
B-£5,000
C-£7,500
D-£8,500
E-£10,000
Option C is correct because the issues presented relate to contributory negligence, a partial defence pleaded by a defendant, which if successful, results in a claimant’s damages been reduced to reflect their degree of responsibility for their losses – Law Reform (Contributory Negligence) Act 1945. The leading case on which the scenario is based is Froom v Butcher [1975] 3 All ER 520 in which Lord Denning indicated that where the claimant’s injuries would have been avoided had a seatbelt been worn, the likely reduction is 25%.
Options A, B, D and E are therefore all wrong answers because they do not make a 25% reduction in the damages.
A solicitor acts for a client who is being sued in negligence. The solicitor’s instructions are that the client was giving the claimant (the 6-year-old son of the client’s friend) a lift in the client’s car when they had to carry out an emergency stop. The claimant was thrown forward and hit the back of the driver’s seat. The claimant suffered a broken nose as a result. The client confirms that they did not ensure that the claimant was wearing a seatbelt. They had presumed that either the claimant’s mother had secured the claimant’s seatbelt when they had sat the claimant in the car or that the claimant themselves had fastened the seatbelt.
The solicitor has advised the client that it is likely that they will be held to have breached the duty of care they owed to the claimant and that the breach caused the claimant’s injury. The solicitor is considering the applicability of any available defence(s).
Which of the following statements best explains whether the client will be able to successfully rely on an applicable defence?
A-Yes, because the claimant’s mother was clearly contributorily negligent and this can be argued to reduce the level of compensation the client will have to pay the claimant.
B-Yes, because the claimant was clearly contributorily negligent.
C-Yes, because the claimant’s mother consented to the risk of their daughter’s injury when they sat the claimant in the client’s car without ensuring that the seatbelt was fastened.
D-No, because, as the claimant’s mother did not know of the risk of the client carrying out an emergency stop, they could not be said to have consented to the risk.
E-No, because the claimant’s age makes it highly improbable that the claimant would be found to have been contributorily negligent.
Option E is correct. While there is no age below which a child cannot be contributorily negligent, the claimant’s age makes it highly improbable that the claimant would be found to have been contributorily negligent. The ordinary 6 year old would not be expected to have fastened their own seatbelt.
Option A is wrong because the defence of contributory negligence is used as against a claimant ie the child in this case and not their father. The claimant’s mother may have been negligent but the child is not ‘identified’ with the negligence of their parent. If the claimant’s mother has been negligent, then the client can seek a contribution under the Civil Liability (Contribution) Act 1978. However, this does not prevent the claimant from recovering all of their compensation from the client.
Option B is wrong because it cannot be said that the claimant was clearly contributory negligent (see above).
Option C is wrong because the defence of consent only applies as against the claimant. Any apparent consent by the claimant’s mother is irrelevant.
Option D is wrong for the same reason as option C.
A woman asks her neighbour to drive her to the town centre in his car. The neighbour agrees to do so. Whilst they are driving to the town centre, the neighbour notices that the woman has not put on her seat belt and he asks her whether she is legally exempt from wearing a seat belt. The woman replies that she is not legally exempt, but that she simply cannot be bothered to put on her seat belt.
As they approach a junction, the neighbour carelessly loses control of his car and crashes into a lamppost. The woman sustains head injuries in the accident. The woman subsequently brings a negligence claim against the neighbour and the matter proceeds to trial. The medical evidence given at trial indicates that the woman’s head injuries would have been less severe if she had been wearing a seat belt.
How will the woman’s failure to wear a seat belt affect the outcome of the trial?
A-The woman will lose because the neighbour can rely on the complete defence of consent. The woman knew the risk involved in not wearing a seat belt and she willingly consented to that risk.
B-The woman will lose because the neighbour can rely on the complete defence of illegality. By failing to wear a seat belt, the woman has broken the law.
C-The woman will win, but her damages are likely to be reduced by 15% on the grounds of contributory negligence.
D-The woman will win, but her damages are likely to be reduced by 25% on the grounds of contributory negligence.
E-The woman will lose because her failure to wear a seat belt breaks the chain of causation between the neighbour’s breach and the woman’s harm.
Froom v Butcher:
Where the failure to wear a seat belt would have avoided the injury, the starting point for reductions should be 25%. Where it merely would have made the injuries less severe, the starting point is 15%. If wearing the seat belt would make no difference, there should be no reduction.
Option C is correct because if a claimant’s failure to wear a seat belt contributes to their injuries, their damages will be reduced on the grounds of contributory negligence. Where, as in the case of the woman, a claimant suffers injuries which would have been less severe had the claimant been wearing a seat belt, the claimant’s damages are likely to be reduced by 15% in accordance with the tariff established in Froom v Butcher [1975] 3 All ER 520.
Option A is wrong because s.149 Road Traffic Act 1988 prevents the driver of a motor vehicle from using the defence of consent against a claimant who was a passenger in the driver’s vehicle.
Option B is wrong because a defendant can only rely successfully on the defence of illegality where the claimant was committing a serious criminal offence at the time they suffered the harm (meaning that it would be contrary to public policy to award the claimant a remedy for the harm they have suffered). These requirements are not satisfied in the case of the woman’s failure to wear a seat belt.
Option D is wrong because in accordance with the tariff established in Froom v Butcher, a claimant’s damages are only likely to be reduced by 25% where the claimant suffers injuries which would have been avoided completely had the claimant been wearing a seat belt.
Option E is wrong because the woman’s failure to wear a seat belt will not be deemed to be entirely unreasonable conduct on her part and, therefore, it will not break the chain of causation.
Defence of volenti
A defence based upon the claimant consenting to the risk of injury suffered.
For the defence to succeed the claimant must have been fully aware of all the risks involved, including their nature and extent. His consent must be free and voluntary.
A car is driven on a road which has been affected by ice and frost. The car was travelling at 30 miles per hour (mph). The speed limit for the road is 30 mph. The car hits another car parked illegally on the road on the brow of a hill.
The car driver was driving faster than they usually would because they were late for an important business appointment.
The car driver has been found to be liable in negligence to the owner of the other car.
What is the best defence that the car driver may be able to rely upon?
A-Necessity
B-Illegality
C-Contributory negligence
D-Voluntary assumption of risk
E-There are no arguable defences.
C is the correct answer. The owner of the other car has been careless by parking illegally and this carelessness has contributed to the damage caused to their car. E is therefore wrong.
A is wrong because the defence of necessity is not a defence to an action in negligence. In any event, the two elements of the defence (i. imminent danger to life or limb and ii. the defendant’s actions were reasonable in the circumstances), would not be satisfied on these facts.
B is wrong because the damage suffered by the owner of the other car does not arise directly from their illegal activity.
D is wrong because there is nothing on the facts to suggest that either element of the defence (i. full knowledge of the nature and extent of the risk and ii. willing consent to accept the risk of the damage) would be satisfied.
A train operator negligently failed to service the brakes on a train and as a result, a serious crash occurred. A passenger was left trapped inside a carriage, which was leaning dangerously and about to fall. She was saved when a fireman slowly navigated through the wreckage and pulled her out. The fireman sustained injuries as a result of rescuing the passenger. The fireman is now pursuing the train operator in a negligence claim for the injuries he has suffered. The train operator is seeking to raise a defence of consent.
Which of the following statements best describes the defence of consent in this rescue situation?
A-The defence of consent will succeed as the fireman acted carelessly, and that carelessness contributed to his injuries.
B-The defence of consent will succeed as the fireman knew of the risk of physical injury when he attempted his rescue.
C-The defence of consent will succeed as the fireman will have had time to reflect before deciding whether to encounter the risk.
D-The defence of consent will fail as the fireman’s conduct was reasonable and was a natural and probable consequence of the train operator’s negligence.
E-The defence of consent will fail as the train operator was solely responsible for the accident in which the fireman was injured.
Option D is the best answer because the fireman was acting to rescue a person endangered by the defendant’s negligence. Rescuers will not be considered to have consented to the risk of injury if they were acting to rescue persons or property endangered by the defendant’s negligence and they were acting under a compelling legal, social or moral duty and their conduct in all the circumstances was reasonable and a natural and probable consequence of the defendant’s negligence. (Haynes v Harwood [1935] 1 KB 146).
Option A is wrong because it describes the test for contributory negligence.
Option B is wrong because it is not enough for a defendant to prove that the claimant knew of the risk, the defendant must also prove that the claimant freely consented to run the risk of injury. The courts have frequently pointed out that knowledge is not consent.
Option C is wrong as the defence can still fail even if the rescuer takes time to reflect.
Option E is wrong as the defence of consent can still be raised (and succeed), even if the defendant is solely responsible for the initial accident.
