Defences Flashcards
What is the effect of the defence of consent?
It operates as a complete defence for the defendant, preventing the claimant recovering at all for the defendant’s breach of duty.
What must the defendant establish for the defence of consent to succeed?
That the claimant had full knowledge of the nature and extent of the risk; and
That the claimant willingly and freely consented to accept the risk of being injured due to the
defendant’s negligence.
If a claimant knowingly enters a vehicle with a drunken driver will the defence of consent operate?
In any motor vehicle where insurance for passengers is compulsory any acceptance of risk by a passenger is invalid, so consent cannot be relied upon.
In other vehicles, consent may operate if the drunkenness was so extreme and glaring that the claimant could be said to have accepted the risk of his negligence.
How the does the defence of consent operate for employer-employee relationships?
The defence of consent rarely succeeds because an employee acts under a duty and therefore has no real freedom of choice when carrying out a dangerous task requested by the employer.
When will rescuers be considered not 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.
These apply equally to professional and lay rescuers.
What type of defence is contributory negligence?
A partial defence.
What are the elements of contributory negligence?
Carelessness on the claimant’s part; and
That carelessness has contributed to the claimant’s damage.
What is the effect of a finding of contributory negligence?
The claimant’s damages are to be reduced.
In assessing the reduction to the claimant’s damages, what will the court take into account?
Culpabillity of the claimant
Whether the claimant contributed to the loss which they suffered as opposed to the accident.
How are damages reduced for a claimant found contributorily negligent for not wearing a seatbelt?
If the claimant suffered injuries which would have been avoided had a seatbelt been worn then 25%
If the claimant suffered injuries which would have been less severe had a seatbelt been worn then 15%
How does contributory negligence operate for passengers who accept lifts from drunken drivers?
If they know the driver to be drunk, they can expect to
have their damages reduced if they are injured in an accident caused by the driver’s
intoxicated state.
This applies even if the passengers were too drunk to appreciate the driver’s intoxication but knew that, by going out drinking together, they would later be driven home by
the driver when the driver would be drunk.
What is the test for contributory negligence?
Whether the claimant has failed to take reasonable care for their own safety from the standard of an ordinary reasonable person.
How can children be found contributorily negligent?
A judge should only find a child guilty of contributory
negligence if he or she is of such an age as reasonably to be expected to take precautions for his or her own safety.
The test which the court will apply in deciding whether a child has been contributorily
negligent, is whether an ordinary child of the claimant’s age would have taken more care for
his safety than the claimant did.
A child’s damages cannot be reduced on account of the negligence of his/her parents.
How can rescuers be found contributorily negligent?
For the purposes of contributory negligence, a rescuer will be judged against the standard of the reasonable rescuer. Allowance will be made for the emergency situation in which many rescuers will find themselves.
Only if a rescuer has shown a wholly unreasonable disregard for his or her own safety’ is
there likely to be a finding of contributory negligence.
How can employees be found contributorily negligent?
The standard of care to be met will depend on the type of work being undertaken by the employee.
