Defences Flashcards
What must be established for the defence of consent?
- The claimant had full knowledge of the nature and extent of the risk
- The claimant willingly consented to accept the risk of being injured due to the defendant’s negligence
Is consent a full or partial defence?
Full defence for the defendant
In respect of intoxication, how stringent are the requirements to prove the defence consent? (non-RTA)
The drunkness of a defendant must be glaringly obvious to show that the claimant could have accepted their negligence.
What effect does the RTA Act 1998 have in respect of the defence of consent?
Acceptance of risk by a passenger is invalid where, in a motor vehicle, insurance for passengers is compulsory.
How must a claimant’s consent be given for a defence of consent to succeed?
The claimant’s consent must be given freely and voluntarily and not as a result of fear or duress.
Can a consent defence be raised by an employer against an employee’s claim?
Rarely.
An employer never usually has a free and informed choice as they risk losing their job, so this defence is very unlikely to succeed.
Can a consent defence be raised against a rescuer?
Not where:
- They were acting to rescue persons or property endangered by the defendant’s negligence;
- 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
How is contributory negligence proved?
Carelessness on the claimant’s part; and
That carelessness has contributed to the claimant’s damage.
What happens if there has been a finding of contributory negligence?
The claimant’s damages will be reduced accordingly
What is the sliding scale of contributory negligence in respect of not wearing a seatbelt or crash helmets?
Claimant suffered injuries which would have been avoided had a seatbelt or crash helmet been worn - 25% reduction
Claimant suffered injuries which would have been less severe had a seatbelt or crash helmet been worn - 15% reduction
The wearing of a seatbelt or crash helmet would have made no difference to the extent of the claimant’s injuries - 0% reduction
Can children be found contributory negligent?
Not generally, but the older the child the more likely they will be found guilty.
They will be compared to a child of the same age.
Can a parent be held negligent for the actions of their child?
Yes, but it will not reduce the child’s damages. The defendant can instead seek a contribution through the Civil Liability (Contribution) Act.
Can rescuers be found guilty of contributory negligence?
Yes, but only where they have shown a wholly unreasonable disregard for his or her own safety.
This is rare in practice.
Can employees be found guilty of contributory negligence?
Yes, as a result of their own carelessness, but the courts are slow to come to this conclusion.
What are dilemma cases and can a claimant be guilty of contributory negligence in such circumstances?
Where the defendant’s behaviour may put a claimant in imminent danger and they may take some action to save themselves e.g. jumping from a car to save themselves.
