Defences Flashcards
Consent
The defence of consent (also referred to as voluntary assumption of risk or volenti non fit injuria) operates as a complete defence for the defendant, preventing the claimant recovering at all for the defendant’s breach of duty.
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.
Claimant’s knowledge of the risk
For the defence to succeed, the claimant must have had full knowledge of both the nature and the extent of the risk which the claimant is alleged to have assumed. It is not sufficient for the claimant simply to know that the risk exists.
Claimant’s consent
For the defence of voluntary assumption of risk to succeed, it is not enough for a defendant to prove that the claimant knew of the risk.
The defendant must also prove that the claimant freely consented to run the risk of injury. 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.
If, the relationship between the parties is such that there is doubt as to whether the claimant can truly decide voluntarily whether or not to assume the risk of danger, consent cannot apply
Consent and employees
An employee acts under a duty and therefore has no real freedom of choice when carrying out a dangerous task requested by the employer.
If an employee refuses to carry out the task, they run the risk of losing their job. Policy considerations may also be relevant. Employees will usually be under economic and/or other pressures, which will make it unjust for an employer to say that the worker ran the risk of injury freely and willingly.
very rare for this defence to succeed in such cases
Consent and rescuers
Another instance in which a claimant does not necessarily act voluntarily is where they are acting as a rescuer. The courts take the view that rescuers often act under moral compulsion.
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.
Haynes demonstrates that the rules on rescuers apply equally to professional rescuers and to lay rescuers
This defence rarely succeeds.
Contributory negligence
A defendant who is unable to escape liability by relying on any of the complete defences may, nevertheless, be able to raise the partial defence of contributory negligence.
Contributory negligence comprises the following two elements:
* carelessness on the claimant’s part; and
* that carelessness has contributed to the claimant’s damage.
The effect of a finding of contributory negligence
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.
Examples of contributory negligence
- Seatbelt
- Not wearing helmets
- 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.
What kind of behaviour amounts to contributory negligence?
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.
The test which the court will apply in deciding whether a child has been contributorily negligent, is whether an ordinary child of the claimant’s age would have taken more care for his safety than the claimant did.
The child’s damages cannot be reduced on account of the negligence of his parents but the defendant could seek contribution from parents.
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 - A claimant might be injured at work partly because of his employer’s fault but also as a result of their own carelessness.
In deciding whether a careless employee’s actions are sufficient to amount to contributory negligence, the court will take into account all of the relevant circumstances. For example, it will be relevant that the work might be noisy, repetitive or dull, and these factors could lead a claimant to take less care for his own safety.
Dilemma cases - The defendant’s negligence may sometimes put the claimant in a situation of imminent danger, compelling the claimant to take some action to try to save themselves.
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.
Illegality operates as a complete defence for the defendant, preventing the claimant recovering at all for the defendant’s breach of duty.
For the defence of illegality to succeed there must be a very close connection between the illegal activity of the claimant and the injury which they suffer, so that the damage arises directly out of the illegal activity in such a way that it would be contrary to public policy to allow the claimant a remedy.
Excluding liability
A person may try to exclude or limit his liability to another in tort. For example, by way of a notice which states: ‘No liability is accepted for any loss or damage …’
