Defences in Paper 2 Flashcards
What is the act of parliament which governs contributory negligence?
The Law Reform (Contributory Negligence) Act 1945
What does contributory negligence mean?
Provides that any damages awarded to the claimant can be reduced according to the extent or level to which the claimant had contributed to their own harm
How does CN work?
The defendant and the claimant are each partly to blame for the injury suffered by the claimant
Who decides what % the claimant is to blame and for their own harm?
The judge
What are the facts and legal importance of Sayers v Harlow Urban District ?
A woman was trapped in a public toilet. After unsuccessfully calling for help, she tried to escape by climbing through the gap between the door and the ceiling using the toilet roll holder as a tool to get up. It gave way and she was injured. It was decided that the local council was liable for its negligent maintenance but the damages were reduced by 25% due to how she tried to escape.
O’Connell v Jackson
Damages were reduced by 15% when the rider of a moped was injured and suffered greater injuries because we was not wearing a helmet
Froom v Butcher
The driver of a car suffered greater injuries than would have been the case if wearing a seatbelt. His damages were reduced by 20%.
Stinton v Stinton
Damages were reduced by 1/3 for accepting a risk of a drunk driver. The claimant knew he was over the limit.
Badger v Ministry of Defence
The claimant died of lung cancer at 63. The defendant accepted that he breached the duty by exposing the claimant to asbestos dust. However, he argued that damages should be reduced because if the claimant didn’t smoke, it would be unlikely that he died of lung cancer at a young age. Damages were reduced by 20% as the claimant knew the risk of smoking.
What is the defence of consent (volenti)?
It is a full defence, when the claimant accepts a voluntary assumption of the risk of harm. It means no injury is done to one who consents the risk. The claimant will receive no damages.
What must a defendant prove on the balance of probabilities? Consent
Knowledge of the precise risk involved, exercise of free choice by the claimant and a voluntary acceptance of the risk
What is one exception of consent?
Road Traffic Act 1988
Sterner v Lawson
The defence will not apply merely because the claimant knows of the existence of the risk; he must have full understanding of the nature of the actual risk
Smith v Baker
The defence will not succeed where the claimant has no choice but to accept the risk. The risk must be taken voluntarily
Haynes v Hardwood & Ogwo v Taylor
Where a person has a duty to act and is then injured because of the D’s negligence volenti will not be available
