Defences Flashcards
Chapter 7
What are the three general defenses a defendant might raise in a negligence claim?
○ Consent (voluntary assumption of risk)
○ Contributory negligence
○ Illegality (ex turpi causa non oritur actio)
What is the effect of a successful consent or illegality defense?
These are complete defenses, meaning the defendant avoids paying any compensation to the claimant.
What must a defendant establish for the defense of consent to succeed?
○ The claimant had full knowledge of the nature and extent of the risk.
○ The claimant willingly consented to accept the risk of injury due to the defendant’s negligence.
○ Knowledge of the risk is not the same as consent
What are some situations where the defense of consent is unlikely to succeed?
○ Employees, because they may not have a free choice due to fear of losing their job.
○ Rescuers, because they often act under a moral compulsion.
○ In cases involving motor vehicles, where insurance for passengers is compulsory, due to the Road Traffic Act 1988, s 149.
What is the effect of a successful contributory negligence defense?
This is a partial defense; the claimant’s damages are reduced, reflecting their share of responsibility for the damage.
What two elements must a defendant establish for the defense of contributory negligence to succeed?
○ Carelessness on the claimant’s part.
○ That carelessness has contributed to the claimant’s damage.
○ The claimant must have failed to take reasonable care for their own safety
Does a claimant need to have contributed to the accident itself to be considered contributorily negligent?
No, the claimant only needs to have contributed to the damage, not the accident. For example, not wearing a seatbelt.
How do courts assess contributory negligence in children?
A court will consider if the child is of such an age as to be reasonably expected to take precautions for their own safety and whether the child was ‘blameworthy’. The test is whether an ordinary child of the claimant’s age would have taken more care for his safety.
How do courts assess contributory negligence in rescuers?
Rescuers are judged against the standard of a reasonable rescuer and allowance is made for the emergency situation. There will only be a finding of contributory negligence if the rescuer shows a “wholly unreasonable disregard for his or her own safety”.
How do courts assess contributory negligence in employees?
Courts take into account the circumstances of the work, such as whether it is noisy, repetitive or dull, which could lead a claimant to take less care for their own safety.
What is the “agony of the moment” principle in contributory negligence?
A claimant who acts in the “agony of the moment” due to the defendant’s negligence will not be contributorily negligent if their actions were a reasonable response to the danger.
What must a defendant establish for the defense of illegality to succeed?
There must be a very close connection between the claimant’s illegal activity and the injury they suffered, such that it would be contrary to public policy to allow the claimant a remedy.
Give an example of a situation in which a defendant may raise the defence of illegality
If a claimant and defendant were escaping from a burglary and the defendant’s negligent driving causes an accident in which the claimant was injured.
