Defences&Remedies Flashcards
What is the partial defence in tort law?
Contributory negligence
What set out contributory negligence? (tort law)
Law Reform (Contributory Negligence) Act 1945 - where a person suffers damage as a result of their own fault, their damages will be reduced
What are the three factors to consider for contributory negligence? name the key cases
-Failure to wear a seatbelt, 25% reduction in compensation (Froom v Butcher)
-Emergencies, not CN (Jones v Boyce)
-Children, no age limit (Morales v Eccleston)
What is the full defence for tort law?
Volenti non-fit injuria
What is Volenti non-fit injuria? (tort law defence)
The voluntary assumption of a risk - C decided to take the risk and then expressly or impliedly agreed to waive any claim in respect of injury
What is the first condition to prove volenti non-fit injuria? name the key case
-Consent must be freely given, a person must have full knowledge of the circumstances (Morris v Murray)
What is the side rule in the first condition of volenti non-fit injuria? name the key case
Defence is rarely allowed in employer/employee relationships, have little choice even if they were aware of a risk. (Shatwell) - held that employees were liable because they deliberately ignored the employer
What is the second condition of volenti non-fit injuria? name the key case
-Knowledge of the risk, cannot consent if they do not understand the nature and the extent of the risk (Murray)
What are the two side rules for the second condition of volenti non-fit injuria? name the key cases
Sport - consents to risk that are ordinarily incidental to that sport. Wattson v Grey held that if the tackle was so obviously dangerous that no player would have consented to it
Rescuers - defence not available. Baker v Hopkins held the rescue was a ‘natural and foreseeable result of the negligence from the D’
What are the remedies for tort law?
-Compensatory damages
-Injunctions
What is meant by ‘compensatory damages’ for tort law?
money given, aimed to put the claimant back in the original position before the injury
What are the two types of compensatory damages?
Special - have specific value and are claimed up to the date of trial (e.g medical expenses, loss of earning etc)
General - cannot be precisely calculated and are up to the judge to decide (e.g pain and suffering, future loss of earning)
What is an injuction? (tort law defences)
A court order to do/not do something, this is an equitable remedy so it is at the discretion of the court, only given if it is fair and just to do so in the circumstances (Kenneway v Thompson), behaviour of the D is important, may be refused if not in public interest and awarded damages instead (Miller v Jackson)
What are the two types of injunctions?
Prohibitory - prevents the D from committing a tort or from continuing with it
Mandatory - compels the D to act in a particular way, so that they can rectify the consequences of their actions
