Defences

Question 1

What are the three defences to negligence?

Answer 1

• Voluntary assumption of risk (volenti)
• Illegality (ex turpi causa)
• Contributory negligence

Question 2

Contributory negligence

Law reform (contributory negligence) Act 1945

Answer 2

• Damages shall be reduced to such an extent as the court thinks it is just and equitable

Question 3

Froom v Butcher

Answer 3

Facts: • C was not wearing a seatbelt when D collided into him causing injuries
• Accident was caused solely by D but C would not have suffered injuries if he wore a seatbelt
• C claimed damages and D argued C.N

Judgment: Damages reduced by 20%

L.P: The Court of Appeal set out guidelines for C.N

Level of injury | Reduction
Prevented completely 25%
Less severe 15%
No difference 0%

Question 4

Gough v Thorne

Answer 4

Facts: • C was a 13 year old girl and was about to cross the road with her brothers a busy road
• A lorry stopped and motioned to the children to cross
• Just as children started to cross, D drove his car though a gap and struck C
• C claimed damages and D argued CN

Judgment: Defendant failed. No CN

L.P: • A very young child can not be found guilty of C.N an older child might

Question 5

Volenti -

Dann v Hamilton

Answer 5

Facts: • C chose to ride in a car with D knowing he was drunk
• There was an accident where D was killed and C sustained injuries
• D raised the defence of Volenti

Judgment: Defence failed

L.P: • Merely knowing of the risk is not enough, Defendant must consent to it

Question 6

Morris v Murray

Answer 6

Facts: • After an entire afternoon of drinking alcohol C and his friend decided to go on a flight in his light aircraft
• C drove both of them to the airfield and helped start the aircraft
• After take off, D was killed and C seriously injured
•C claimed damages and D claimed Volenti

Judgment: Volenti present

L.P: •C had voluntarily assumed the risk of injury and was not drunk enough to understand the nature and extent of risks
• C knew it might end like it did UNLIKE Dann v Hamilton

Question 7

Illegality -

Pitts v Hunt

Answer 7

Facts: • Both C and D had been drinking all evening
• C was a passenger on the motorcycle and was fully aware D was underage, drunk, unlicensed and uninsured
•Encouraged D to drive recklessly
• An accident happened and D was killed outright but C only seriously injured

Judgment: Claim denied on basis of illegality

L.P: • Joint criminal enterprise caused Claim to be denied
• C’s injury was caused directly by criminal act they were undertaking