Defences Flashcards
What are the elements of the defence of consent?
Consent is a complete defence
- C must have full knowledge of the specific nature and extent of the risk, not just a general awareness of risk
- C must willingly consent to the risk of being injured due to the defendant’s negligence - knowledge of the risk is not consent in itself
How does consent work with motor vehicles?
Acceptance of any risk by the passenger is invalid and the defence of consent cannot be relied on by D
How does consent work with employees?
Rare for there to be voluntary acceptance of risk, due to the economic pressure of being in the employment situation
With regards to rescuers, when will the defence of consent not work?
Rescuers are deemed to not have consented if:
- They were acting to rescue persons or property endangered by the defendant’s negligence; and
- 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 does the defence of illegality work?
Acts as a complete defence
There must be:
- A very close connection between the illegal activity of the claimant and the injury which they suffer, so that the damage arises directly out of the illegal activity
- in such a way that it would be contrary to public policy to allow the claimant a remedy.
What are the elements of the defence of contributory negligence?
Acts as a partial defence
There must be:
- Carelessness on C’s part; and
- C’s carelessness has contributed to their damage
How is the carelessness element of contributory negligence assessed and what special situations/individuals are considered and in what way?
Consider objectively, whether C failed to take reasonable care for their own safety
Some special considerations:
- Children – they are judged against standard of reasonable child of the same age
- Rescuers – judged against reasonable rescuer acting in the circumstances of the emergency; Only contributory negligence if they acted with a ‘wholly unreasonable disregard for their own safety’
- Employees – employees may get used to taking certain risks as a matter of course, so this will be taken into account
- ‘Agony of the moment’ - C is judged in the circumstances they were in at the time – their actions must be a reasonable response to the danger
How will damages be adjusted if a seatbelt hasn’t been worn in an accident?
If wearing seatbelt would have wholly avoided C’s injury, their damages are reduced by 25%
If wearing seatbelt would have somewhat avoided C’s injury, their damages are reduced by 15%
If it would have made no difference, there is 0% reduction
How does contributory negligence apply where C is a passenger with a drink driving defendant?
C will be found contributory negligent, even if C was too drunk to realise D’s intoxication
How does the second part of the contributory negligence test work?
There must be a causal connection between C’s carelessness and their injury
This means if C didn’t wear a helmet (carelessly), but suffered a broken leg, they would not be contributory negligent.
Who can be found to be contributory negligent?
Only C!!
If a parent fails to properly supervise a child playing in the road, the child (C) may be contributory negligent, but the parent would have to be added as a joint tortfeasor if necessary
