Defences

Question 1

What is contributory negligence?

Answer 1

The pursuer contributed to his or her loss through their own negligence. Consider blameworthiness/ causative potency

Question 2

In which act can contributory negligence be found?

Answer 2

Law Reform (Contributory Negligence) Act 1945 s.1. 
Where established damages will be reduced by a proportion to reflect the defenders’ contribution.

Question 3

What is the capacity of children for contributory negligence?

Answer 3

The question of a child’s contributory negligence must depend on the nature of the particular danger and the child’s capacity to appreciate it.” Galbraith’s Curator v Stewart (No.2) 1998 SLT 1305 per Lord Nimmo-Smith at 1307G.

Question 4

What is volenti non fit injuria?

Answer 4

The pursuer knowingly consented to run the risk of injury.
Where established this is a complete defence.
May be preserved in statutory liability see e.g. Occupiers’ Liability (Scotland) Act 1960 s.2(3)

Question 5

What is damnum fatale?

Answer 5

This is an attempt to pin the blame for a harmful event on God, or if you prefer, Nature. The English equivalent is vis major. If successful it establishes that the defender was not at fault and so, unless liability in the circumstances is absolute it will exonerate the defender.

Question 6

What is ex turpi causa non oritur actio?

Answer 6

No action arises from an immoral cause. A complete defence where established it is employed where the pursuer was involved in some relatively serious criminal or immoral activity at the time the harm occurred.
Courts will not allow this defence without consideration of the circumstances.

Question 7

What is prescription and limitation?

Answer 7

Actions may become time-barred if not raised within the times specified by law, Prescription and Limitation (Scotland) Act 1973.
When obligations prescribe they become extinguished. Limitation does not extinguish an obligation, but it prevents actions from being raised.
Actions in respect of personal injuries not resulting in death are limited after 3 years from the date of injury, s.17.
The court may however exercise discretion to override this time limit under s.19A.
See also removal of limitation in cases involving abuse of children. S.17A inserted by Limitation (Childhood Abuse) (Scotland) Act 2017
See also Prescription (Scotland) Act 2018