Defences Flashcards
What are the three defences used for negligence?
- consent
- contributory negligence
- illegality
When is the defence of consent applicable?
The defence of consent is applicable in cases where the claimant has consented to the risk(s) involved and so cannot complain of the consequential damage.
What does the defendant need to show in order to succeed in the defence of consent?
- Had capacity to give valid consent to the risks
Claimant must possess mental capacity - Had full knowledge of the nature and extent of the risks
Subjective on whether the particular claimant knew - Agreed to the risk of injury
Agreed to it expressly/ implied. Knowledge of the risk alone is not the same as consenting to it. - Agreed voluntarily
Claimant has to act voluntarily
Is consent a partial defence?
No it is a complete defence
What are the limits on consent?
Consent may be negated by statute.
- s149 Road Traffic Act 1998
Prevents the use of consent as a defence by motorists facing claims from their passengers
- UCTA & CRA
sections exclude liability for death and personal injury
Is contributory negligence a partial defence?
yes, it gives the defendant the opportunity to reduce their liability
What two elements must be established for contributory negligence?
- the claimant failed to take reasonable steps for their own safety
standard is objective - what a reasonable and prudent man would have done - this failure contributed to the claimants damage
The claimant’s fault must contribute to the damage suffered, doesn’t have to contribute to the accident.
(e.g. failure to wear a seat belt)
(Jones v Linox)
(s1(1) Law Reform (Contributory Negligence) Act 1945)
What is the dilemma principle? (Contrib)
Allowances are made for claimants who have been placed in an emergency or difficult dilemma
(Dorning v PR of Paul Rigby).
Are rescuers protected from contrib?
Yes generally, however in Harrison v BRB the court felt that such protection would not be justified if the rescuer had negligently helped to create the emergency in the first place.
Is illegality a complete defence?
Yes
Why does the defence of illegality exist?
- to avoid granting a claim where this would produce inconsistency and disharmony in the law, harming the integrity of the legal system.
- Allowing a claim which is intertwined with a crime could mean the law appearing to allow and prohibit something simultaneously.
What is the two step approach you should take when considering whether illegality should apply?
Step 1: has the claimant committed an illegal (or possibly grossly immoral) act?
Step 2: apply the test inPatel v Mirza
What is the illegality test in Patel v Mirza?
A. to consider the underlying purpose of the prohibition which has been transgressed and whether that purpose will be enhanced by denial of the claim
- criteria of centrality - that the illegal act is a central cause of the tort
B. to consider any other relevant public policy on which the denial of the claim may have an impact
C. to consider whether denial of the claim would be a proportionate response to the illegality, bearing in mind that punishment is a matter for the criminal courts.