Defences - Chapter 6 Flashcards
How much the defendant prove their defence applies
On the balance of probabilities
When will ex turpi cause non oritur actio defences be used
Claimant was in criminal act When they suffered harm
Or
They allege they committed a crime as a result of defendants negligence
Volenti non fit injuria defences
Claimant gave voluntary informed consent to the activity that involved the injury
Contributory negligence defence
Claimant was part to blame for the accident, put themself in dangerous position of increased the extend of their own injury
S2 unfair contract terms act 1977 or s65 CRA 2015 defence
Contractual exclusion clause that limits defendants liability to the claimant.
Function of a defence
To reduce or eliminate the defendants liability for the damage suffered by the claimant.
What is a complete or full defence
A defence which completely absolves the defendant of all liability
Two important common law defences
Ex Turpi causa non oritur actio
Volenti non fit injuria
Ex Turpi causa covers…
Connection between illegal activity and the claimant with the injury they’ve suffered
The damage arose directly out of the illegal activity
It would be contrary to public policy to allow the claimant remedies
Clunis v Camden (mental health patient stabbed a man)
Inextricable link test
Ex Turpi causa defence to apply there must be a link between the criminal act and loss claimed.
Gray v Thames trains ltd - dismissed claim
Allen v Hounga - upheld claim
Volenti non fit injuria defence
No injury can be done to a willing person
Defence must show the claimant voluntarily consented with knowledge of the risk to injury. Stermer v Lawson
Consent must be freely given smith v baker
(Employers must establish that the employee had agreed to and took part in the dangerous activity) imperial chemicals v shatwell
If a person rescues someone but sustains injury can they claim
Yes, providing they did not feel they had any choice but to reduce the victims. They did not freely consent.
Ward v T E Hopkins and son
Can Sport spectator injury be claimed
Not usually as the spectators are considered as knowing the risk when attending an event - Murray v harringgay
What is the outcome of a contributory defence
Reduction in the amount of damages which are paid by the defendant.
Law reform (contributory negligence) act 1945
How must the defendant prove contributory negligence
The must prove
Claimant is partly to blame for the accident in which they are injured- Fitzgerald v Lane
Claimant has put themselves in a dangerous position which exposed them to risk to be injured - Davies V swan motor co
Claimant fails to take reasonable car for their own safety
When will the court be reluctant to hold that a claimant has been contributory negligent.
The claimant is a child
The claimant is an employee
The claimant was a rescuer
The claimant was in a ‘dilemma principle’ (difficult situation)
Limitation period under s2 limitation act 1980
Period of 6 years from the date of cause of action arose
When does s2 not apply
If claimant is under disability(under age)
Or deceased
What is statue barred
Limitation time frame has passed
3 exceptions to 6 year rule
Personal injury cases
Death of the claimant
Latent damage
When does the limitation period begin for personal injury
When the wrong doing occurred
When the injury was sustained
When the claimant had knowledge of the injury
Hayward and others v fawcetts and another - the relevant date is not when the claimant first knew they had a claim but the earlier date when they first knew enough to begin investigating the defendants negligence
What is limitation for death of a claimant
3 years upon the date of death or when their relatives or representatives had knowledge of the death
What is limitation for latent damage
6 years from damage is done
Then further 3 years when claimant discovered the damage
What is long stop
No claim can be raised more than 15 years after the date of defendants negligence
Ss62, 65CRA or S2 unfair contract terms act provide that… (limitation clauses)
It is impossible got anyone to exclude or restrict their liability for personal injury or death caused by their negligence
And
Any clauses excluding or restricting liability for other damages or loss as a result of their negligence are not valid if they are unfair.
