defences Flashcards
1
Q
the two types of defences
A
- contributory negligence,
- consent (volenti),
2
Q
contributory negligence
A
- in its modern form, was introduced by the Law reform (contributory negligence) act 1945,
- defence can be applied in two ways,
3
Q
the two ways contributory negligence can be applied
A
- the claimant is partly to blame for the accident happening. (Sayers v Harlow Urban District Council),
- claimant was not to blame for the accident, but his actions made his injuries or losses worse than they should have been, (Froome v Butcher and O’Connell v Jackson),
4
Q
Sayers v Harlow Urban District Council
A
- a woman was trapped in a public toilet after the lock became jammed,
- she tried to escape by climbing and the toilet roll holder gave way,
- council were negligent for failing to maintain the toilet but damages were reduced by 25% as she tried to escape,
5
Q
Froome v Butcher
A
- not wearing a seatbelt in a car,
6
Q
O’Connell v Jackson
A
- not wearing a crash helmet on a motorbike,
7
Q
the results if the defendant is successful in establishing contributory negligence
A
- the court will recude the claimants damages to reduce his own carelessness,
- in Brannon the claimant was 50% responsible and so his damages were reduced by 50%,
- in Froom the court decided not wearing a seatbelt would result in 15-25% reductions,
8
Q
Jaye v IMI
A
- the case which shows its possible for there to be a 100% reduction in damages,
- the claimant lost a finger whilst cleaning a machine with the guard off,
- the employers had breached health and safety rules, but the claimant was 100% contributory negligent as he had taken the guard off,
9
Q
consent (volenti)
A
- defence applies in situations where the claimant has consented to the risk and hen it is successful it is a full defence,
10
Q
what the defendant has to show for volenti to succeed
A
- knowledge of the precise risk involved,
- exercise of free choice by the claimant,
- a voluntary acceptance of the risk,
11
Q
S149 of the Road Traffic Act
A
- states that volenti cannot be used in road traffic accidents,
12
Q
Morris v Murray
A
- the defence will not apply simply because the claimant was aware of the risk,
- he must fully understand and accept it.
13
Q
Smith v Baker
A
- consent must be given freely,
- it cannot succeed if the claimant has no choice but to accept the risk,
14
Q
Haynes v Harwood
A
- where a person has a duty to act and is then injured due to a persons negligence, volenti will not be available as a defence,
- the duty means the claimant had no choice but to act,
- this is particularly relevant in rescue cases (Haynes v Harwood),
15
Q
volenti in medical negligence claims
A
- in Sidaway v Governors, it was decided that medical consent does not require an explanation of the remote side affects as long as the doctors had warned of possible side effects,
16
Q
what happens if the consent is successfully pleaded?
A
- its effect is to act as a complete defence so the claimant receives no damages,
- it is an ‘all or nothing’ defence,
