Defences Flashcards
What is the burden of proof for defences to torts?
Burden on defendant on balance of probabilities
What are the available defences for tort?
Consent
Contributory negligence
Illegality
Necessity
What are the requirements for the defence of consent?
- capacity to give valid consent
- full knowledge of nature and extent of risk (subjective)
- Agreed to risk (subjective)
- voluntary
When might it be easier to establish that a claimant agreed to the risk?
risk is intrinsically and obviously dangerous
When will it be unlikely that a claimant was acting voluntarily in giving consent to a risk?
- employees
- acting out of impulsive desire to save life
How do statutes limit the defence of consent?
- motorists cannot use consent for claims from passengers
- trading/business: cannot limit liability for death/personal injury
What type of defence is contributory negligence?
Partial defence
What is the effect of contributory negligence?
Damages reduced by percentage which is just and equitable with regard to claimant’s share in responsibility
What is the test for contributory negligence?
- Claimant failed to take reasonable steps for their safety (objective)
- Failure contributed to claimant’s damage
What will be taken into account for the ‘reasonable steps’ part of contributory negligence?
- emergency/difficult dilemmas
- age if child
- rescuers
When will it be likely that a rescuer will still be deemed to have contributed to negligence?
negligently helped create emergency
Does the claimant’s failure to take reasonable steps need to contribute to the accident for contributory negligence?
No
How much are damages reduced by in contributory negligence?
Court discretion
How does the court approach calculating damages/liability for contributory negligence where there are several defendants
- Claimant’s liability v defendants as a whole
- how liability shared between defendants
Why was the defence of illegality not allowed in Delaney v Pickett?
Crime was incidental to the accident, no causal link
