Defences Flashcards
What must a defendant show to establish valid consent?
Defendant must show:
* Had capacity to give valid consent to the risks
* Had full knowledge of the nature and extent of the risks
* Agreed to the risk of injury
* Agreed voluntarily
A prisoner at risk of taking their own life does not have capacity to consent to risk associated. (Reeves)
What is the effect of consent in negligence claims?
Acts as a complete defence and the claimant gets no damages
Consent can be negated by statute.
What does the Road Traffic Act 1998 state about consent?
Motorists cannot say passengers consented to risk
This statute limits the ability of defendants to claim consent in certain situations.
What does the Unfair Contract Terms Act 1977 prohibit?
Prohibits defendants from excluding or restricting liability for:
* Death
* Personal liabilities resulting from injury
Subject to a test of reasonableness for other types of loss.
What is the significance of the Consumer Rights Act 2015 regarding liability?
Prohibits traders from using contract terms/notices limiting or excluding liability for death or personal injury when dealing with consumers
This act protects consumers from unfair contract terms.
What is contributory negligence?
Partial defence where the claimant’s failure to take reasonable steps for their own safety reduces the defendant’s liability
The court assesses the claimant’s actions against a reasonable and prudent person standard.
What standard must the claimant meet to establish contributory negligence?
Claimant must show they failed to take reasonable steps for their own safety and that this failure contributed to the claimant’s damage
Court considers age of children and protections for rescuers.
What are the effects of contributory negligence on damages?
Reduces liability of a defendant and damages are reduced by a percentage deemed just and equitable by the court
This reflects the claimant’s responsibility for their own injuries.
What is the principle of illegality in negligence claims?
When a claimant was involved in an illegal or grossly immoral action, they cannot claim negligence
This principle prevents recovery for claims linked to illegal activities.
What test is applied to determine if a claim can proceed despite illegality?
Apply the Test from Patel v Mirza [2016] considering:
* The underlying purpose of prohibition
* Other relevant public policy
* Proportionality of denying the claim
The test evaluates consistency and disharmony in the law.
pWhat factors are considered in proportionality limb of the test from Patel v Mirza?
Consider:
* Seriousness of the conduct
* Centrality to the tort
* Intentionality of the act
* Disparity in parties’ culpability
These factors help assess the appropriateness of allowing a claim.
What does necessity refer to in legal terms?
When the defendant acted to save life, limb, or property
What must the defendant prove when claiming necessity?
Defendant must prove:
* Acting in an emergency to prevent harm to the claimant
* Not at fault in causing the emergency
The test for acting in an emergency is subjective, focusing on preventing serious injury.
