DEFENCES Flashcards
contributory negligence def
operates where the claimant’s own fault has contributed to the damage
Until Law Reform (Contributory Negligence)
Act 1945
: a complete defence and no damages were recoverable for injuries or damage caused partly by the claimant’s own fault.
Law reform act 1945 s1
s1- Where any person suffers damage as the result partly of his own fault and partly of the fault of any other person, a claim in respect of that damage shall not be defeated by reason of the fault of the person suffering the damage, but the damages recoverable shall be reduced to
such extent as the court thinks just and equitable having regard to the claimant’s share in the responsibility for the damage.
- Partial Defence
- The D must prove contri neg under s 1
CN CHECKLIST
Did the claimant fail to exercise care for their own safety
Jones v livox Quarries (1952)
- stood on tow bars but also reckless driving
held: c 1/5 to blame under the LRA (1945) - acted against orders and exposed himself to danger
- damages reduced by 20%
- did not act as a reasonable prudent man
-foreseeability of harm to oneself
Did this failure contribute tot he claimants damage?
Froom v Butcher (1976)
- not wearing seat belt
- head and chest injuries would have been avoided
Carelessness- relates to the damage not the cause of the accident; failure to take precautions
- reduced damages by 15%
By what amount should the claimant’s damages be reduced?
Owens v brimmell (1977)
- pub crawl, both got in car and accident with p
- c no seat belt
held: the passenger is guilty of CN as they accepted lift from someone who had drank alot and did not wear seatbelt
- did not prove that if seatbelt worn less injuries so no reduction
but in general reduction of 20%
Smith v Finch (2009)
- cyclist in collision with motorbike no helmet
held: no cn as no proof that an approved helmet would have prevented or made less severe head injuries
cycle helmets not compulsory
Volenti non fit injuria
voluntary assumption of risk
- the claimant voluntarily assumed to take the risk involved
- complete defence
- must prove that C had full knowledge and had consented to the nature/extent of the risk
Not in road traffic accidents
S149 Road traffic act 1988
- any attempt to avoid liability to passengers will be ineffective
volenti not available as a defence in vehicle accident
VNFI checklist
knew the nature and extent of the risk of harm
and voluntarily agreed to it
Morris v Murray (1991)
drinking spree, c agreed to go on d private plane
- crashed and c injured d dead
- D drank 17 whiskeys equal
held: it was Vnfi as D was heavily intoxicated
– glaringly dangerous that he could be
taken to have voluntarily accepted the risk of injury
and waived the right to compensation.
- there was no need or compulsion to go on the flight
Knowledge does not imply consent
Smith v Charles Baker and Sons (1891)
- stone fell out of crane and hit head
said c was aware of risks
held: not volenti- knowledge of danger did not constitute
- been aware of l acceptance of risk
- been aware of danger - not to lack of care
- unequal nature of relationship
volenti variations
employees
ICI v Shatwell (1965)
- disobeyed a strict order
held: disobedience of an employer’s safety procedures indicates consent to danger
SPORT
Simms v Leigh rugby football club ltd (1969)
- d rugby club’s ground had concrete barrier
assumed risk- no action
held: that c voluntarily assumed risk that he would be injured by being thrown into the barrier
unlike
Condon v Basi (1985)
- foul tackle in amateur football match- suffered broken leg
- consent to reasonable contact
held: c did not consent to serious foul play- negligent behaviour
Watson v British boxing board control (2001)
- no consent to injury where inadequate safety arrangements in a boxing match
RESCUERS
Baker v hopkins (1959)
- D made dangerous situation and poison
- c a dr try rescue and died
held not volenti as he tried to rescue and their actions are not voluntary or consented
Cutler v United Diaries Ltd (1933)
- horse bolted but no genuine emergency
- p was injured trying to restrain
held: he must have expected to run a risk of injury - allowed volenti
illegality: ex turpi causa non oritur actio
- no action may be based on an illegal cause
no actions arise from a dishonourable claim - prevents a C engaged in illegal activity from obtaining damages
Pitts v Hunt (1991)
- aided 16 yr old in uninsured ride on a motorbike after drinking - c injured and D died
s149 of road traffic act 1988 made the defence of volenti impossible in any action brought by a passenger against the driver
- ex turpi cause applied as public policy also prevents a claimant who is engaged in illegal activity with the defendant from succeeding against the defendant for wrongs done tot he claimant.
Clunis v Camden (1998)
- history of mental illness- sued health authority for failing to realise he was dangerous/ after care services- he was released from hospital and committed manslaughter
- public policy denied claim - damaged could not be covered for the consequences of his own unlawful act
Gray v Thames Trains (2009)
- c suffered PTSD after train crash- killed a man- detained in mental hospital - sued for loss of earnings
held: ex turpi applied.
- court would award damaged to compensate a claimant for injury or disadvantage which a criminal court had imposed as punishment for criminal offence
