Defences Flashcards
what is contributory negligence?
‘where a person suffers damage as a result partly of his own fault and partly the fault of another, a claim shall not be defeated by reason of the fault of the person suffering damage’
what act covers contributory negligence?
the law reform (contributory negligence) act 1945
is contributory negligence a complete or partial defence?
partial
who carries the burden of proof in contributory negligence?
the defendant
what are the requirements of contributory negligence?
1- the claimant failed to take proper care in the circumstances for their own safety. ‘proper care’ varies and all circumstances are taken into account including claimants age
2- the failure to take care was a contributory cause of the damage suffered
why do courts prefer contributory negligence over consent?
its more fair to apportion the loss between the parties rather than taking the ‘all or nothing’ approach
key cases on contributory negligence
-Revill v Newbery
-Gough v Thorns
whats the other name for consent as a defence?
Violenti non fit injura
what are the 3 elements of consent?
-voluntary
-agreement by the claimant
-in full knowledge of the circumstances
what does the element of ‘voluntary’ mean in consent?
-the agreement must be voluntary and freely entered
-if the claimant isn’t in a position to exercise free choice the defence will fail
what does the element of ‘agreement’ mean in consent?
-may be expressed or implied
-an implied agreement could be when the claimant
demonstrates a willingness to accept the legal risks as well as the physical ones
what does the element of ‘knowledge’ mean in consent?
-the claimant must have had knowledge of the full nature and extent of the risk they ran
-a rescuer isn’t regarded as having freely and voluntarily accepted the risk
-a participant in a sporting game is taken to consent to the risk of injury which occurs in the course of ordinary performance of the sport
how does consent relate to the occupiers liability acts?
s2(5) 1957
s1(6) 1984
an occupier owes no duty in respect of risks willingly accepted by a person
key cases on consent
-Smith v Charles Baker and Sons
-Morris v Murray
-Haynes v Harwood
-Condon v Basi
-Titchener v British Railways Board
what are the 4 defences to private nuisance?
-ordinary use of the land
-statutory authority
-act of God
-prescription
what does ordinary use of the land mean in private nuisance?
anything that isn’t abnormal, for instance household noises such as talking, the TV etc.
what does statutory authority mean in private nuisance?
anything that is caused by pubic authorities under statutory powers, so long as they don’t exceed that which was authorised eg road works
what does ‘act of God’ mean in private nuisance?
events that happen independently of any human action eg a storm
if the occupier becomes aware of the nuisance but fails to remedy it within a reasonable time they may be liable for any damage it caused
what does prescription mean in private nuisance?
very rarely succeeds
if it can be proven the nuisance has been committed for over 20 years and the claimant has been aware of it, the defendant has a defence, as they have acquired the prescriptive right to commit the nuisance
note - the 20 years doesn’t start until the claimant becomes aware of the nuisance
key cases on the defences for private nuisance
-Southwark London Borough Council v Mills
-Allen v Gulf Oil Refining Ltd
-Goldman v Hargrave
-Sturges v Bridgman
what are the 4 defences to Rylands v Fletcher
-act of a stranger
-act of God
-statutory authority
-consent/benefit
what does an act of a stranger mean in Rylands v Fletcher?
a complete defence if the escape was caused by the act of a stranger over which d had no control and whose actions could not have been reasonably foreseen
was does consent/benefit mean in Rylands v Fletcher?
if c revieves a benefit from the thing accumulated, they may be deemed to have consented to its accumulation
key cases on Rylands v Fletcher defences
-Ribee v Norrie
-Carstairs v Taylor
-Green v Chelsea Waterworks Co
-Peters v Prince of Wales Theatre
