Defences

Question 1

Contributory Negligence?

Answer 1

Law set on modern footing with civil liability act 1961

CN ceases to be absolute defence under act

Jones v Livox quarries: P guilty of neg where he failed to avoid risks he could reasonably forsee would cause him injury

Question 2

Causation?

Answer 2

Courts apply OT just as when determining N of D

Boyne v bus atha Cliath
🔑 courts reluctant to relieve liability on intoxication

Zara McCabe v Dublin COCo 2014

Question 3

Passengers of drunk drivers

Answer 3

Michael Tevlin v Kevin McArdle & Mibi 2004 (drinking with friends)

Court applied Hussey v Twomey 2009

1. Ps who knowingly travel may be found neglient
2. CN assessed objectively but considers personal circumstances
3. P cannot use self intoxication to avoid CN

Question 4

Excuses for not wearing seatbelt

Answer 4

Hamill v Olivier: May be excusing circumstances but for person who didn’t wear seatbelt to raise

Walsh v Walsh 1991 (fear of trapped in car)

OOP on D

Question 5

Agony of the moment?

Answer 5

P aggravates situation because of his actions

Question 6

Dilemma principles?

Answer 6

Broader than AOM, D’s negligence puts P in situation & to avoid inconvenience P decided to run slight risk

Question 7

Mitigation of Loss

Answer 7

S34(B): negligent failure to mitigate shall be deemed CN

Bohan v Finn 1994 (psychosomatic illness)

Question 8

Illegality

Answer 8

Ex turpi non causa: CL will not assist wrongdoer
Only unlawful action to offend PP will non suit P

C’s struggle to establish consistent approach when claims morally / legally questionable (burgler injury DD)

Question 9

Public Conscience Test

Answer 9

Idea C should not give remedy to P if C would assist / encourage illegal conduct

Lost favour due to unpredictability & inconsistency. Critics argue placed to much emphasis on society’s reaction to individual wrongdoers

Question 10

Illegality other jurisdictions

Answer 10

English & Canadian courts approach P cannot recover compensation from sentence imposed for criminal act

Clunis v Camden (negligence claim against health authority)

Question 11

Illegality DOC?

Answer 11

C can dismiss case by applying DOC as in McComiskey

Anderson v Cooke driver owed no duty to passengers involved in speeding
🔑 courts may refuse to recognise DOC based on parties relationship

Hacket v Calla 2004 (ringleader)

Question 12

Illegality broader approach

Answer 12

IC might benefit from BA where PP concerned

They could require illegality play a central role in claim. Engaging in joint enterprise could lean towards applying D but Cs should consider nature of crime

Crucial not over broaden defence & reward criminal behaviour

Eurodiam v Bathurst 1990 (Tax Cheat)