Defences Flashcards
Consent (voluntary assumption of risk)
For the defence of consent to succeed, a defendant must establish:
* that the claimant had full knowledge of the nature and extent of the risk; and
* that the claimant willingly consented to accept the risk of being injured due to the
defendant’s negligence (knowledge is not consent)
Section 149 of the Road Traffic Act 1988 applies to any motor vehicle
where insurance for passengers is compulsory. Its effect is that any acceptance of risk by the
passenger is invalid. The defence of consent or volenti cannot be relied on.
Two further situations which illustrate just how difficult it is in practice to establish the defence
of consent: employees and rescuers.
The claimant’s consent must be given freely and voluntarily and not be obtained as a result of fear or duress. The claimant therefore must have been in a position to choose freely.
Rescuers will not be considered 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.
Contributory Negligence
This is a partial defence.
Contributory negligence comprises the following two elements:
* carelessness on the claimant’s part; and
* that carelessness has contributed to the claimant’s damage.
Where there is a finding of contributory negligence, the claimant’s damages are to be
reduced. The court will first calculate the full amount of damages which would have been
payable had it not been for the claimant’s contributory negligence. Then it will make an
appropriate reduction to take the contributory negligence into account.
Where a finding of contributory negligence is made by the court, damages should 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.
Case law demonstrates that in making this assessment the court will take into account:
* culpability, ie the relative blameworthiness of the parties;
* causation, ie the extent to which the claimant’s carelessness has caused or contributed to
the loss suffered.
NB: the relevant issue is whether C caused the damage, not whetehr C contributed to/caused the accident
Examples of contributory negligence
Seatbelts (Likely % reduction):
1. Claimant suffered injuries which would have been avoided had a
seatbelt been worn. = 25%
2. Claimant suffered injuries which would have been less severe had a
seatbelt been worn. = 15%
3. The wearing of a seatbelt would have made no difference to the extent of the claimant’s injuries. = 0%
NB: a cusal link needs to be demonstrated.
Crash helmets:
Motorcyclists who suffer head injuries due to a failure to wear a crash helmet will have their damages reduced for contributory negligence.
Drunken drivers
Passengers who accept lifts from a driver whom they know to be drunk, can expect to
have their damages reduced if they are injured in an accident caused by the driver’s
intoxicated state. Even if passenger was too drunk to appreciate driver’s intoxication.
The kind of behaviour that may amount to contributory negligence:
The test for contributory negligence is whether the claimant has failed to take reasonable care
for their own safety. Both see and \D are measured against the reasonable person.
Children: It is usually said that there is no age below which, as a matter of law, a child cannot be
contributorily negligent. However, the older the child, the more likely a court is to make a finding of contributory negligence.
Rescuers: The relevant principle from Baker v TE Hopkins & Son Ltd is that:
* 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. Such cases are likely to be rare in practice as the courts will always be reluctant to accept criticism of a rescuer’s conduct
Employees: where work is monotonous workers may take less care and courts are slower r to make a finding of contributory negligence against such an employee than against other employees (eg office workers).
Dilemma cases: A claimant who acts in the ‘agony of the moment’ due to the defendant’s negligence will not be contributory negligent if the court is satisfied that the claimant’s actions were a reasonable response to the danger.
Illegality
The fact that the claimant was involved in an illegal enterprise at the time they were injured
may sometimes provide the defendant with a defence. The maxim ‘ex turpi causa non oritur
actio’ translates as ‘no action arises from a disgraceful cause’. This is a complete defence, preventing the claimant recovering at all for the defendant’s breach of duty.
Requires a very close connection b/w illegal activity and injury suffered + contray to public policy to allow C a rmedy.
