Defences in Tort

Question 1

Consent (Voluntary assumption of risk) as a Defence

Answer 1

Defence of consent or voluntary assumption of risk or volneti non fit injurita is a complete defecnce
To be successful must establish
1) Claimant had full knowledge of the nature and extent of risk - not sufficient to know the risk exists.
2) Claimant willingilng consented to accept the risk of being injured

Question 2

What is claimant consent

Answer 2

Knowledge is not consent (Getting into car with drunk driver is not consent of risk)

Must implicitly waive rights if so extreme that they accepted the risks.

RTA 1998 any acceptance of risk by passenger in cars is invalid.

Question 3

Consent and employees

Answer 3

Employees usually have no freedom when doing dangerous tasks requested by their employer.

If employee refuses to do task they can be fired so unjust to say they provided freely to consent.

Question 4

Consent and rescuers

Answer 4

Rescuers act by moral compulsion so does not act voluntarily.

Has NOT consented to risk if:
- acting to rescue person in danger by def negligence
- acting under compelling duty
- Conduct was reasonable

Question 5

Contributory Negligence As a Defence

Answer 5

Is a partial defence compromising 2 elements:

1) Carelesness of the claimant
2) Carelessness contributed to the claimants injury

• When contributory negligence applies the damages can be reduced to an appropriate amount (50/50)
• It is not who caused the accident but who caused the damages. (Claimant injured in car accident - not wearing a seatbelt, claimant was driving perfectly and did not cause the accident, but the claimant was careless in not wearing seatbelt which contributed to injuries)
• Other examples of CN - Motorbikes who do not wear helmets and drunken drivers who get in car knowing of intoxicated state.

Question 6

Children and CN

Answer 6

• Child cannot be contributory negligent. However older then more likely.
• Test is for a reasonable standard of an ordinary child of the same age would have taken more care of their own safety than the claimant did.
• Parent negligence should not affect damages owed to child - Def can seek separate contribution of the damages based on liability of the parents.

Question 7

Employees and CN

Answer 7

Courts will consider all factors e.g. was the work boring leading to carelessness?

Question 8

Dilema Danger situations and CN

Answer 8

• Def negligence may put claimant in situation of danger and may take action to try save themselves.
• Was the actions to try save themselves reasonable? if so no CN as defence.

Question 9

Illegality (ex turpi causa non oritur actio) as a Defence.

Answer 9

• If claimant was involved in a crime at time of injury may be a complete defence. (Ben and Ken robbing safe - Ben blows safe and injures Ken - Ben can raise illegality if sued)
• To succeed as defence Must be close connection between illegal activity and the injury suffered - Damages arrived directly out of the illegal activity.

Question 10

Excluding liability -

Answer 10

• can try exclude liability with a notice “No liability is accepted for loss or damage..