Defences

Question 1

what is contributory negligence?

Answer 1

‘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’

Question 2

what act covers contributory negligence?

Answer 2

the law reform (contributory negligence) act 1945

Question 3

is contributory negligence a complete or partial defence?

Answer 3

partial

Question 4

who carries the burden of proof in contributory negligence?

Answer 4

the defendant

Question 5

what are the requirements of contributory negligence?

Answer 5

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

Question 6

why do courts prefer contributory negligence over consent?

Answer 6

its more fair to apportion the loss between the parties rather than taking the ‘all or nothing’ approach

Question 7

key cases on contributory negligence

Answer 7

-Revill v Newbery
-Gough v Thorns

Question 8

whats the other name for consent as a defence?

Answer 8

Violenti non fit injura

Question 9

what are the 3 elements of consent?

Answer 9

-voluntary
-agreement by the claimant
-in full knowledge of the circumstances

Question 10

what does the element of ‘voluntary’ mean in consent?

Answer 10

-the agreement must be voluntary and freely entered
-if the claimant isn’t in a position to exercise free choice the defence will fail

Question 11

what does the element of ‘agreement’ mean in consent?

Answer 11

-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

Question 12

what does the element of ‘knowledge’ mean in consent?

Answer 12

-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

Question 13

how does consent relate to the occupiers liability acts?

Answer 13

s2(5) 1957
s1(6) 1984
an occupier owes no duty in respect of risks willingly accepted by a person

Question 14

key cases on consent

Answer 14

-Smith v Charles Baker and Sons
-Morris v Murray
-Haynes v Harwood
-Condon v Basi
-Titchener v British Railways Board

Question 15

what are the 4 defences to private nuisance?

Answer 15

-ordinary use of the land
-statutory authority
-act of God
-prescription

Question 16

what does ordinary use of the land mean in private nuisance?

Answer 16

anything that isn’t abnormal, for instance household noises such as talking, the TV etc.

Question 17

what does statutory authority mean in private nuisance?

Answer 17

anything that is caused by pubic authorities under statutory powers, so long as they don’t exceed that which was authorised eg road works

Question 18

what does ‘act of God’ mean in private nuisance?

Answer 18

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

Question 19

what does prescription mean in private nuisance?

Answer 19

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

Question 20

key cases on the defences for private nuisance

Answer 20

-Southwark London Borough Council v Mills
-Allen v Gulf Oil Refining Ltd
-Goldman v Hargrave
-Sturges v Bridgman

Question 21

what are the 4 defences to Rylands v Fletcher

Answer 21

-act of a stranger
-act of God
-statutory authority
-consent/benefit

Question 22

what does an act of a stranger mean in Rylands v Fletcher?

Answer 22

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

Question 23

was does consent/benefit mean in Rylands v Fletcher?

Answer 23

if c revieves a benefit from the thing accumulated, they may be deemed to have consented to its accumulation

Question 24

key cases on Rylands v Fletcher defences

Answer 24

-Ribee v Norrie
-Carstairs v Taylor
-Green v Chelsea Waterworks Co
-Peters v Prince of Wales Theatre