Defences In Tort

Question 1

What type of defence is contributory negligence?

Answer 1

General and Partial defence

Question 2

Which act is used for contributory negligence?

Answer 2

LAW REFORM CONTRIBUTORY NEGLIGENCE ACT 1945

Question 3

What does contributory negligence mean?

Answer 3

The amount of damages awarded against D can be reduced by which C had contributed to her own harm.

Both D and C are partly to blame for the harm suffered by C.

Question 4

What happened in SAYERS v HARLOW UDC?

Answer 4

C became trapped in the toilets and stood on the toilet roll holder in an effort to climb. She got injured.

Council was liable for negligent maintenance but C was also liable due to her negligent manner in which C tried to escape.

Question 5

What 2 points does D have to prove for contributory negligence?

Answer 5

1) C was negligent in that she failed to take reasonable care in the circumstances for her own safety.
2) C’s fault was a contributory cause of the harm suffered (not the accident)

Question 6

What proves C must have failed to take as much care as the reasonable person in her position would have taken for her own safety?

Answer 6

• C’s behaviour must mean that true harm was reasonably foreseeable.
• C’s should take into account the possibility of others being careless.
• If C is a child, she must take as much care as the reasonable child of the same age would have taken for her own safety.

Question 7

What happened in JONES v LIVOX QUARRIES?

Answer 7

C worked in D’s quarry. One lunch he hitched a lift by standing on the tow bar of a traxcavator. Unfortunately, a dumped truck, driven negligently by another employee crashed into the back, crushing C’s legs.

Court held that D was liable, but C was held to be 20% to blame as he acted against orders and exposed himself to danger.

Question 8

What case is used for C’s fault must have helped to cause the harm that she suffered?

Answer 8

FROOM v BUTCHER

Question 9

What happened in FROOM v BUTCHER?

Answer 9

The passenger in a car suffered greater injuries than would have been the case if he had worn a seat belt.

His damages reduced to 20%.

Question 10

What happened in WOODS v DAVIDSON?

Answer 10

D negligently ran over C who was drunk at the time.

The claim of contributory negligence failed as the fact that C was drunk was irrelevant in the circumstances. C would have been run over even if sober.

Question 11

Defence of Consent:

Answer 11

Consent operates asa complete defence and D will not be liable.

Question 12

To be successful for the defence of Consent, what must D prove?

Answer 12

1) C was aware of the specific risk of injury that occurred

2) C willingly agreed to run the risk

Question 13

What does C must be aware of the specific risk of injury mean?

Answer 13

• Test is subjective and not objective- depends on what C knew not what the reasonable person would have foreseen
• Where C is intoxicated, the question is whether C was so intoxicated that she was incapable of appreciating the specific risk: MORRIS V MURRAY

Question 14

What happened in MORRIS v MURRAY?

Answer 14

C and his decided to go on a flight in the friend’s light aircraft. Shortly after take-off, the aircraft crashed. the pilot was killed and C was severely injured.
Court allowed the defence of consent. C was not so drunk as to be able to appreciate the specific risk involved.

Question 15

When does the defence of consent not succeed?

Answer 15

The defence will not succeed where C has no choice but to accept the risk: SMITH v CHARLES BAKER & SONS.

Question 16

What happened in SMITH v CHARLES BAKER& SONS?

Answer 16

C was employed to hold a drill in position whilst two other workers took it in turns to hit the drill with a hammer. Next to where he worked a crane moved rocks over his head. C was injured when a stone fell on him.
The court allowed held that he was aware of the danger, but in continuing the work he had not by implication given his consent to the risk of harm. D was refused for the defence of consent.

Question 17

Does a rescuer have the defence of consent?

Answer 17

No, because D where a rescuer is injured going to a persons aid. This because the rescuer is under a moral or legal duty to act: HAYNES v HARWOOD.

Question 18

What happened in HAYERS v HARWOOD?

Answer 18

D left a horse-drawn van unattended in a crowded street. The horses bolted when a bit threw a stone at them. C a police officer, tried to stop the horses to save people but he was injured.
Court refuses the defence of consent because C had not willingly agreed to run the risk as he was under a legal duty to act.

Question 19

Will the defence of consent work for when a employee acts against an employer’s orders and is injured?

Answer 19

The defence of consent is likely to be available to the employer: ICI v SHATWELL

Question 20

What happened in ICI v SHATWELL?

Answer 20

C was a quarry worker. C ignored his employer’s instructions on the handling of detonators and was injured when one exploded.
Court held that by ignoring his employer’s instructions as well the statutory rules and having full knowledge of the risks, C had voluntarily assumed the risk of injury and the defence of consent was available.

Question 21

When will the defence of consent be sufficient in sport?

Answer 21

It will succeed where the injuries are a result of conduct that fails WITHIN what can be reasonably expected in the sport: CONDON v BASI

Question 22

What happened in CONDON v BASI?

Answer 22

A footballer in an amateur match was held liable in negligence for breaking another’s player’s leg in a foul tackle.
Court refused defence of consent because players do not accept the risk of injury which occurs outside the rules of the game.