Defences Flashcards
What are general defences in tort law?
General defences in tort law are defences that apply to various torts, including negligence. They can bar or reduce a claimant’s ability to recover damages, even if the defendant has committed a tort.
What is the defence of consent in tort law?
The defence of consent, also known as voluntary assumption of risk, is a complete defence where a claimant voluntarily accepts a risk. If proven, the claimant cannot recover damages.
What are the elements required for the consent defence to apply?
The claimant must:
1. Have full and specific knowledge of the risk.
2. Voluntarily and freely consent to that risk without duress or pressure.
Is the consent defence commonly applied in employer-employee situations?
No, the consent defence is rarely successful in employer-employee cases, as employees often do not freely accept the risk due to economic or moral pressure.
How does the consent defence apply to rescuers?
Rescuers, whether amateur or professional, are generally not found to have consented to the risk. They are often compelled by moral or employment duties to act, so public policy usually supports them in claiming damages.
What is contributory negligence in tort law?
Contributory negligence is a partial defence where the claimant’s own lack of reasonable care contributed to their injury. If successful, the claimant’s compensation is reduced according to their level of fault.
What must be proven for contributory negligence to apply?
Two elements must be proven:
1. The claimant failed to take reasonable care for their own safety.
2. The claimant’s carelessness contributed causally to their injury.
How does contributory negligence apply to children?
Children are judged by the standard of a reasonable child of the same age, not the standard of an adult.
How are rescuers treated under contributory negligence?
Rescuers are only found contributorily negligent if they act with an unreasonable disregard for their own safety in an emergency.
What is the standard for determining contributory negligence in employees?
Employees may be judged based on the nature of their work. For example, if the work is noisy or repetitive, employees might be accustomed to taking less care for their safety, which could affect the finding of contributory negligence.
How does the ‘agony of the moment’ affect contributory negligence?
If the claimant was in a difficult situation and made a decision to protect themselves, they are not judged with the benefit of hindsight. The circumstances at the time are considered when determining negligence.
How do seatbelts and crash helmets relate to contributory negligence?
If wearing a seatbelt or crash helmet could have reduced or prevented the claimant’s injury, and they did not wear it, it may reduce their compensation, but no more than 25%. If the lack of safety gear did not contribute to the injury, there’s no contributory negligence.
What is the defence of illegality in tort law?
The defence of illegality applies when the claimant’s illegal act is closely connected to the injury, and allowing a remedy would be against public policy. It can bar a claim if the claimant’s illegal actions directly contributed to the harm.
Can the defence of illegality apply if the claimant’s illegal act isn’t directly related to the injury?
No, the defence of illegality only applies when the claimant’s illegal act is directly related to the injury. For example, if someone is illegally parked and their car is damaged, they can still recover damages as the illegal act is not connected to the injury in a way that justifies barring a claim.
Can contributory negligence and the illegality defence apply simultaneously?
Yes, contributory negligence can apply alongside the illegality defence, but the illegality defence is more focused on the public policy implications of the claimant’s illegal conduct.
