Defences ( Contributory) Flashcards
Are defences in tort General
Defences relating to negligence are often general defences, as they apply to a range of different torts.
Contributory Negligence in the common law point of view
Common law traditionally provided that anyone who was partly responsible for the harm done to them could not recover in tort.
WHat did the law reform( contributory negligence ) Ac change
The Law Reform (Contributory Negligence) Act 1945 now provides that in such cases the claim need not fail but the defence of contributory negligence may apply. Where this defence applies, damages can be reduced to take account of the fact that the fault was not entirely the defendant’s.
Baker v Willoughby 1969
After the claimant injured his left leg in a road accident caused by the defendant’s negligence, the claimant was shot in the left leg by an armed robber. Although the defendant was driving carelessly, the claimant had had a clear view of the road and had taken no evasive action. The court found that he was 50% contributorily negligent, so the claimant received 50% of the damages he would have got if there had been no contributory negligence.
Cavendish Funding v Henry Spencers 1998
(In many cases, the claimant’s negligent behaviour will contribute to causing the accident which results in damage. An example is economic loss cases.)
The defendants had negligently valued the building at over 1.5 million, and the claimants had another valuation at 1 million. The property was actually worth 250,000. The claimants based their loan on the defendants’ valuation and hence lost money. The court held that the claimants had been contributorily negligent. The claimants should have checked once they found a discrepancy between the two valuations, and so the court deducted 25% from their damages.
Jones v Livox Quarries
The claimant was riding a traxcavator which was not designed to carry passengers and was injured when another vehicle drove into the back of the traxcavator. The claimant argued that his contributory negligence amounted only to taking the risk that the might fall off, but the court held that being hit from behind was also within the range of possible risks and the claimant’s negligence in doing so had contributed to his injury.
The standard of care ( Contributory negligence )
The standard of care is that of the reasonably prudent person. In other words, a defencen of contributory negligence will succeed if it can be established that the claimant failed to recognise that he was jeopardising his own safety if this would have been obvious to the
ordinary person.
Badger v Ministry of Defence( standard of care)
The claimant, who had smoked all his life, was negligently exposed to asbestos and this exposure was found to be a cause of his lung cancer. The court found that the claimant was not contributorily negligent for starting to smoke, as he started in 1955 when it was not widely known that smoking could cause cancer. However, by the 1970s, the first health warnings about smoking appeared and the claimant’s doctors had warned him to quit smoking. The court concluded that a reasonably prudent person would have given up smoking by the 1970s, and so he was contributorily negligent from that point onwards.
A claimant will not be contributorily negligent where they have only fallen below the standard of care as a result of an error of judgement, as reasonable people do make such errors from time to time, and especially in emergencies
.Jones v Boyce (1816),(Standard of care)
The claimant was riding on top of the defendant’s coach when one of the horses’ reins broke, and it looked as though the coach might topple over. The claimant jumped from the coach, breaking his leg. As it turned out, the coach was kept on the road, so if the claimant had kept his seat he would not have been injured. Clearly he had contributed to his own injury, but the
court held that this did not amount to contributory negligence; he had acted reasonably in the face
of what appeared to be a dangerous situation.
Revill v Newbery (1996),(Standard of care)
the claimant had entered the defendant’s land intending to steal from his shed, but was shot by the defendant, who had taken to sleeping in his shed because he
was concerned, correctly as it turned out, about the risk of theft and vandalism. He was sued for negligence by the would-be burglar, and successfully raised the defence of contributory negligence.
Reeves v Metropolitan Police Commissioner (1999)
The court found that the claimant’s death was caused equally by two factors: the police negligence in allowing him to take his own life; and his action in doing so. Therefore he was 50 per cent contributorily negligent.
children (contributory negligence)
Where the claimant is a child, the standard of care is that which could reasonably be expected, taking into account the child’s age and development.
Gough v Thorne (children) 1966
A lorry driver signalled the 13-year-old-girl that she should cross the road, and so she did so, without checking to see whether there was any vehicle coming from behind. In fact, another lorry approached and hit her. The court held that taking into account her age, she had not fallen below the expected standard of care and so was not contributorily negligent.
Yachuk v Oliver Blais 1949
children
a nine-year-old boy bought some gasoline, a highly
inflammable fuel, from the defendants, saying his mother needed it for her car. He took it away and played with it, and ended up being seriously burnt. The company was found to be negligent in supplying the gasoline to a child of that age, but the boy was not found contributorily negligent on the grounds that at his age he could not be expected to know the dangers of gasoline.
Evans v Souls Garage (2001),(children)
the claimant was one of two 13-year-old boys who bought
petrol from the defendant, intending to inhale the fumes. Spilled petrol caught light, burning the claimant badly. He successfully sued the defendant for negligence in selling the petrol to children, but damages were reduced by a third for his contributory negligence in playing with petrol, which he knew to be dangerous.
