Defences Flashcards
What is necessary for the defence of consent to succeed?
D must establish:
C had full knowledge of the nature and extent of the risk; and
C willingly consented to accept the risk of being injured due to negligence.
What are the four cornerstone defences in tort?
(i) Consent;
(ii) Contributory Negligence;
(iii) Illegality;
(iv) Excluding Liability
Is it sufficient for C to know ‘some’ risk exists?
No. They must have full knowledge of the risk to be deemed a consenting party to the injury.
Is knowledge of risk sufficient to imply consent?
No - only an extremely high level of risk would have to be present for consent to be implied via the claimant’s knowledge.
What are two instances where it is unlikely for consent to arise as a defence?
Employees - as they’re deemed to have no real freedom of choice;
Rescuers - they’re deemed to be acting out of necessity, rather than voluntarily.
How is contributory negligence established?
The defendant shows that there was carelessness on the claimant’s party; and the carelessness had contributed to the claimant’s damage.
How are damages apportioned in contributory negligence claims? (Partial defence)
The court assess the full amount of damages had it not been for the claimant’s negligence, then make an appropriate reduction with the contributory negligence taken into account.
What type of behaviour may result in contributory negligence?
Getting into a car with a drunk driver;
Not wearing a seatbelt;
Employee being careless e.g. not wearing the proper safety equipment
When would the defence of illegality be able to succeed?
When there is a very close connection between the illegal activity of the claimant and the injury they suffer.
It would have to be in such a way, where it would be contrary to public policy to allow the claimant a remedy.
How can an exclusion clause exempt liability?
E.g. ‘no liability is accepted for any loss and damage…’
Though, if the notice is inadequate//covers PI and death, it will likely fail to exclude liability.
