Defences

Question 1

what types of defences are these? What does this mean?

Answer 1

these are general defences, so they apply to other torts (i.e. not just negligence)

Question 2

what are the three main general defences?

Answer 2

consent, contributory negligence and illegality

Question 3

what is the defence of consent also called?

Answer 3

• This is also called ‘voluntary assumption of risk’ or ‘volenti non fit injuria’

Question 4

what type of defence is the defence of consent? What does this mean?

Answer 4

This is a complete defence. This means that if D can prove this defence, C will not receive any compensation.

Question 5

who has the burden of proof to prove the defence of consent?

Answer 5

the defendant

Question 6

what are the elements to the defence of consent?

Answer 6

1. C must have had full knowledge of the nature and extent of the risk that’s being taken
2. C must voluntarily accepted / willingly consented to accept the risk of being injured due to D’s negligence

Question 7

re: consent

explain ‘C must have had full knowledge of the nature and extent of the risk that’s being taken’

Answer 7

• C must have known the full and specific nature of the risk that is being taken
• It will not be sufficient if C simply knew that the risk exists
  o i.e. a sign saying ‘warning, danger keep out’ might suggest there is some risk by entering but this does not give C the full and specific nature of the nature that is being taken by entering the room

Question 8

re: consent

explain ‘C must voluntarily accepted / willingly consented to accept the risk of being injured due to D’s negligence’

Give examples.

Answer 8

The decision to take the risk must be freely taken.

The court’s have held that knowledge of the risk is not consent.

o Dann v Hampton (1939)  C got into a car driven by D who had been drinking, C knew this. D died in a car accident and C was injured. The court held that whilst C knew D was drunk, and there was a risk he might drive dangerously, it could know have been said that knowledge of this risk was sufficient to imply consent to risk.

o Morris v Murray (1990)  C and D had been drinking together for hours. D and C sought to fly a plane which then crashed, killing D and injuring C. D successfully raised the defence of contributory negligence. The court said C’s drunkenness was so extreme and glaring that C could be said to have accepted the risk of C’s negligence.

Question 9

when can the defence of consent not be relied upon?

Answer 9

The defence cannot be relied upon if:
o there was any element of duress
o if there was no way to avoid the risk (it is not voluntary if its unavoidable)
o the nature of the relationship casts doubt as to whether C can consent

Question 10

what is the effect of s149 of the Road Traffic Act 1998?

Answer 10

this only applies to motor vehicles where insurance is compulsory (i.e. wouldn’t apply to an off-road quad bike and so the defence of consent could be argued)

the effect of s149 is that any acceptance of risk by the passenger is invalid i.e. D cannot rely on the defence of consent.

Question 11

what is the position regarding the defence of consent in an employer/employee relationship?

Answer 11

courts have been generally unwilling to allow employers to rely on the defence of consent because of the nature of the relationship, the employee is unlikely to be able to voluntarily refuse

Question 12

what is the position regarding rescuers and the defence of consent?

Answer 12

The courts have said that generally rescuers do not consent as long as their conduct is reasonable and probable consequence of D’s negligence

Rescuers will not be considered to have consented to risk of injury if:
o They were acting to rescue persons or property endangered by D’s negligence; and
o They were acting under a compelling legal, social or moral duty; and
o Their conduct in all the circumstances was reasonable and a natural and probable cause of D’s negligence.

Question 13

in relation to rescuers, where D argues the defence of consent, what may the court do?

Answer 13

making a ruling of carelessness (i.e. contributory negligence) instead. This is more common.

Question 14

what type of defence is contributory negligence? What does this mean?

Answer 14

• This is a partial defence
• If successfully proven, this means that C’s compensation will be reduced in accordance with what is fair, reasonable and just in this particular situation

Question 15

what are the elements of contributory negligence?

Answer 15

• The elements for this defence are:
  1. C’s lack of reasonable care; and
  2. Carelessness must contribute to C’s injury

Question 16

re: contributory negligence

explain c’s lack of reasonable care

Answer 16

• The key question is whether C failed to take reasonable care for their own safety, and their behaviour will be measured against that of an ordinary reasonable person in the circumstances

‘in the circumstances is important’, C must have been aware of the circumstances and D would need to prove this i.e. if D was drunk, they would need to prove that C knew D was drunk

Question 17

re: contributory negligence - lack of reasonable care

what is the position regarding lack of reasonable care in relation to children?

Answer 17

• Children are judged against a reasonable child of the same age.
• There is no age below which a child cannot be found to be contributory negligence, however the older the child the more likely the court is to make such finding.
• a child should only found to have contributed to their harm where they are of an age where they can reasonably be expected to take precautions for their safety and are ‘blameworthy’

Question 18

re: contributory negligence - lack of reasonable care

what test will the courts apply when deciding whether a child has contributed to their negligence?

Answer 18

whether an ordinary child of c’s age would have taken more care for their safety than C did

Question 19

re: contributory negligence - lack of reasonable care

what standard is applied to a rescuer? Give an example.

Answer 19

A rescuer will be judged against the standard or the reasonable rescuer and allowance will be made for an emergency situation

Whilst there may be contributory negligence, the courts will only find this if they acted with a wholly unreasonable disregard for their own safety i.e. taking an extraordinary risk with no regard for their safety

Baker v TE Hopkins (1959)
o D was contracted to clear out a well. They had left a petrol engine in the well and had been told not to go down there.
o Two of D’s employees did anyway and became overwhelmed by the fumes.
o C went to rescue them but also became overwhelmed by the fumes. All three men died.
o The court found that D was liable for the deaths of the employees and there was no finding of CN against C.

Question 19

re: contributory negligence - lack of reasonable care

what happens if the a child is injured due to D’s actions, but also partly due to negligence of the parents?

Answer 19

The parents’ negligence does not attach to the child. This will not reduce the child’s damages.

However, D may be able to claim a contribution from the parent.

Question 20

re: contributory negligence - lack of reasonable care

if an employee is injured at work and the employer claims contributory negligence, what will the court consider?

Answer 20

• In deciding whether an employee has been CN, the courts will consider all of the circumstance including the nature of C’s work i.e. if it is very noisy, repetitive or dull as C may get used to taking less care for their own safety and this will be taken into account.

Question 21

re: contributory negligence - lack of reasonable care

what is a ‘dilemma case’

Answer 21

where C has entered into a dilemma and they have to make a decision to save themselves due to the negligence of the D.

Question 22

re: contributory negligence - lack of reasonable care

what standard will the court apply when considering CN in dilemma cases?

Answer 22

• In this situation, C will be judged in the circumstances they were in at the time, even if with the benefit of hindsight, they could have taken better care.
• A C who acts in the ‘agony of the moment’ due to D’s negligence will not be CN if their actions were a reasonable response to the danger

Question 23

re: contributory negligence - lack of reasonable care

give two examples of ‘dilemma’ cases

Answer 23

Jones v Boyce (1814)
o D was negligently driving a coach. C jumped out and sustained an injury. C was not found to be CN.

Sayers v Harlow DC (1958)
o C was trapped in a toilet following D’s negligence. She tried to get out by climbing over the door. She then slipped and sustained an injury. The court reduced her damages by ¼.

Question 24

re: contributory negligence

explain ‘carelessness must contribute to c’s injury’

Give an example

Answer 24

• There must be a causal connection between the injury they suffered and the lack of care
• A good example  if wearing a seatbelt would have wholly or partially prevented an injury to the C’s head, then D may succeed with contributory negligence. However, if C broke their leg and wearing a seatbelt would not have prevented this injury, then they cannot be found to have been contributory negligent.

Question 25

re: contributory negligence

is C is found to have contributed to their negligence, what is the approach for the calculation of damages?

Answer 25

1. the court will calculate the full amount that would have been payable
2. a reduction will be made

Question 26

re: contributory negligence

what factors will the court consider when reducing damages?

Answer 26

o Case law
o The extent the court thinks is just and equitable
o Having regard to C’s share in the responsibility for the damage
o Culpability i.e. the blameworthiness of parties
o Causation i.e. the extent to which C’s carelessness has caused or contributed to the loss suffered. C needs to have contributed to the loss suffered, not the accident itself. D must establish a causal link between C’s actions and the loss they suffered.

Question 27

what are some case law example of contributory negligence?

Answer 27

• Suicide in prison > C hung himself in prison. He was found to be 50% to blame and damages were reduced accordingly.
• Failure to wear a seatbelt or crash helmet > scale of reductions:
  o C suffered injuries which could have been avoided had they worn a seatbelt/crash helmet  25% likely reduction
  o C suffered injuries which would have been less severe had they worn a seatbelt/crash helmet  15% likely reductions
  o C wearing a seatbelt/crash helmet would have made no different to C’s injuries  0% reduction
• Passenger accepts a lift from a drunk driver whom they know to be drunk (even if the passenger themselves is drunk)

Question 28

what is the scale for reduction of damages in relation to failure to wear a seatbelt/crash helmet?

Answer 28

o C suffered injuries which could have been avoided had they worn a seatbelt/crash helmet  25% likely reduction
o C suffered injuries which would have been less severe had they worn a seatbelt/crash helmet  15% likely reductions
o C wearing a seatbelt/crash helmet would have made no different to C’s injuries  0% reduction

Question 29

what type of defence is illegality?

Answer 29

a complete defence

Question 30

what are the elements of illegality? Give an example

Answer 30

o There must be a very close connection between C’s illegality; and
o Their injury such that it is contrary to public policy to allow C a remedy

Example 1:

Adriana leaves her car parked in a restricted zone so that she is guilty of a traffic offence. Later, Janet, driving carelessly, crashes into the car and damages it. In this case the defendant could not succeed in the defence of illegality. The above requirements would not be satisfied because it would not be sufficiently contrary to public policy.

Example 2:

• Karl and Ben find a safe in the house they are burgling. Karl negligently blows the lock off the safe, injuring Ben. Karl would be able successfully to raise the defence of illegality if Ben sued him for his injuries.