Defences A01 Flashcards
Define Volenti
if the claimant has voluntarily undertaken the risk of harm then they have no claim against the party who inflicted it
What type of defence is volenti
complete defence = the defendant will incur no liability
Consent must be….. (case)
Freely given, not under duress - Bowater v Rowley
Test for volenti
subjective test to assess whether the claimant had the knowledge and capacity to understand the risk
The mere fact the claimant is aware of the risk.. (case)
is not conclusive proof they have consented to it - Smith v Baker
There are occasions where the courts have allowed the defendant employers to rely on volenti like in… (case)
ICI v Shatwell where the employees had undertaken an unsafe method of working entirely of their own accord and in breach of explicit instructions given by their employer
Define contributory negligence
when the claimant is partly responsible for the harm they have suffered
What must be established foe contributory negligence
That the defendant was negligence
judge in Froom v Butcher held that if a defendant didn’t wear a seatbelt there are set percentages that would apply to the damages:
If wearing a seatbelt would:
- not made any differences to the injuries sustained - no reduction
- have lessened the severity of her injuries - 15% reduction
- have prevented the injuries - 25% reduction
Children (case)
allowances are made for children, lower standard of care - Gough v Thorne
Law on mistakes regarding contributory negligence (case)
usually mistakes made, especially in the heat of the moment they will not be found contributory negligent - Jones v Boyce
Law on drunk drivers regarding contributory negligence (case)
if the claimant gets into the car with a driver they know to be drunk then they may be found to have been found ti have contributed to their own injuries as held in Owen v Brimmel
