Defences for Negligence Flashcards
What are the two main defences which can be raised by a D in a negligence claim ?
An allegation that the claimant has partly caused/contributed to his injuries
Or
An allegation that the claimant consented or agreed to accept a risk of harm
Explain the Act for Contributory Negligence
The act provides that any damages awarded to the claimant can be reduced according to to the extent or level to which the claimant contributed to his own harm ( as a %)
This is only a partial defence and will only result in a reduction in the amount of damages awarded to the claimant
What was held in the case of Sayers V Harlow Urban District Council
It was held that the local council was liable for its negligent maintenance but damages were reduced by 25% because of the way she tried to escape
It is possible for there to be 100% reduction however this is rare, give a case
Jayes V IMI
Held that the claimant was found to be 100% contributory negligent as he admitted his fault in taking the guard off
When is the defence commonly used and how else can damaged be reduced
The defence is commonly used in claims for injuries/damage in road traffic accidents
Damages can be reduced when Motorcyclists fail to wear helmet, driver or passenger fail to wear a seat belt
Give cases to support the above
O’Connell V Jackson - suffered greater due to not wearing helmet
Froom V Butcher
Suffered greater due to not wearing seatbelt
Stinton V Stinton
Damages reduced because he accepted lift from drunk driver
POL: If passenger didn’t know this or its not obvious to reasonable person court may decide claimant was not CN
Explain Consent or Volenti
It is a full defence when the claimant voluntarily accepts a risk of harm.
To succeed with the defence D has to show
- Knowledge or the precise risk involved
- exercise of free choice by the claimant
- voluntary acceptance of risk
What restriction is there on the use of the defence
S149 of Road Traffic Act, this defence cannot be used for road traffic accidents, this is because of 3rd party insurance
The defence will not apply merely because claimant knows it exists, they must have full understanding of the actual risk, give a case
Stermer V Lawson
Held: Defence failed as claimant had not been properly shown how to use motorbike so didn’t know risks involved
The claimant must voluntarily undertake the risk of harm, give a case
Smith V Baker
Held: Defence of consent failed. Workman had already done all that he could in complaining about risks involved in work taking place above his head, he had no choice but to work and didn’t give consent to risk of danger
Where a person has a duty to act and is then injured because of D’s negligence, volenti will not be available as this duty means that the claimant had no choice but to act, give a case
Haynes V Harwood
Held; Defence could not be used against him
Ogwo v Taylor
Held: D’s argument that claimant consented to injuries were dismissed
When is the defence of volenti most relevant in real life ? give a case
Medical negligence claims
Sidaway
Held: Consent in medical cases does not require a detailed explanation of remote side effects. There was no liability. Not every possible risk has to be explained before valid consent can be given
What is an extra rule for Volenti and give a case
If the claimant acts against employers’ orders or against statutory rules and is injured, defence likely to succeed
ICI Ltd V Shatwell
Held: by following brothers unauthorised comments, he assumed risk of injury and so defence of volenti succeeded
Before the defence of Volenti can be applied, it must be shown that the D did commit a tort (wrong), give a case
Wooldridge v Sumner
COA confirmed that rider owed spectators duty of care, but there was no breach of duty so no tort of negligence so volenti wasn’t an issue
