Defences - Chapter 6

Question 1

How much the defendant prove their defence applies

Answer 1

On the balance of probabilities

Question 2

When will ex turpi cause non oritur actio defences be used

Answer 2

Claimant was in criminal act When they suffered harm

Or

They allege they committed a crime as a result of defendants negligence

Question 3

Volenti non fit injuria defences

Answer 3

Claimant gave voluntary informed consent to the activity that involved the injury

Question 4

Contributory negligence defence

Answer 4

Claimant was part to blame for the accident, put themself in dangerous position of increased the extend of their own injury

Question 5

S2 unfair contract terms act 1977 or s65 CRA 2015 defence

Answer 5

Contractual exclusion clause that limits defendants liability to the claimant.

Question 6

Function of a defence

Answer 6

To reduce or eliminate the defendants liability for the damage suffered by the claimant.

Question 7

What is a complete or full defence

Answer 7

A defence which completely absolves the defendant of all liability

Question 8

Two important common law defences

Answer 8

Ex Turpi causa non oritur actio

Volenti non fit injuria

Question 9

Ex Turpi causa covers…

Answer 9

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)

Question 10

Inextricable link test

Answer 10

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

Question 11

Volenti non fit injuria defence

No injury can be done to a willing person

Answer 11

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

Question 12

If a person rescues someone but sustains injury can they claim

Answer 12

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

Question 13

Can Sport spectator injury be claimed

Answer 13

Not usually as the spectators are considered as knowing the risk when attending an event - Murray v harringgay

Question 14

What is the outcome of a contributory defence

Answer 14

Reduction in the amount of damages which are paid by the defendant.

Law reform (contributory negligence) act 1945

Question 15

How must the defendant prove contributory negligence

Answer 15

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

Question 16

When will the court be reluctant to hold that a claimant has been contributory negligent.

Answer 16

The claimant is a child

The claimant is an employee

The claimant was a rescuer

The claimant was in a ‘dilemma principle’ (difficult situation)

Question 17

Limitation period under s2 limitation act 1980

Answer 17

Period of 6 years from the date of cause of action arose

Question 18

When does s2 not apply

Answer 18

If claimant is under disability(under age)

Or deceased

Question 19

What is statue barred

Answer 19

Limitation time frame has passed

Question 20

3 exceptions to 6 year rule

Answer 20

Personal injury cases

Death of the claimant

Latent damage

Question 21

When does the limitation period begin for personal injury

Answer 21

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

Question 22

What is limitation for death of a claimant

Answer 22

3 years upon the date of death or when their relatives or representatives had knowledge of the death

Question 23

What is limitation for latent damage

Answer 23

6 years from damage is done

Then further 3 years when claimant discovered the damage

Question 24

What is long stop

Answer 24

No claim can be raised more than 15 years after the date of defendants negligence

Question 25

Ss62, 65CRA or S2 unfair contract terms act provide that… (limitation clauses)

Answer 25

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.