Defences to Negligence Flashcards
What are the 4 defences to an action of tort?
- Volenti non fit injuria (full defence)
- Contributory Negligence (partial defence)
- Ex turpi causa non oritur actio (full defence)
- Necessity (full defence)
Volenti non fit injuria requirements
- C has capacity to consent to risk
- C has full knowledge of the nature and extent of the risks
- C voluntarily agrees to the risk of injury
Knowledge is subjective test, depends on actual knowledge of C.
Voluntarily agreeing = employees do not necessarily voluntarily agree because they want to keep their jobs. Rescuers act out of impulse so not voluntary. Getting into car with drunk driver is not necessarily agreement, only knowledge. May be express or implied if inherently dangerous.
Volenti non fit injuria prohibited by statute
Drunk drivers who injure passengers cannot use this defence.
Under UCTA or CRA, cannot exclude or restrict liability for death or personal injury.
CONTRIBUTORY NEGLIGENCE
Where loss suffered by C is partly D’s fault and partly C’s fault, C’s recovery for loss can be reduced to reflect this where it is just and equitable to do so.
- C failed to take reasonable steps for his own safety
- this failure contributed to the loss.
Addiction is not a contribution. Must be a causal link in the loose sense, e.g failing to wear a seatbelt.
Ex turpi causa non oritur action (Illegality)
- Was C involved in an illegal or highly immoral act at the time of the loss?
- Apply Patel v Mirza, would allowing recovery of the loss transgress the underlying purpose of the law which was breached, is the denial of the claim a proportionate response? Will likely be proportionate where the illegal act caused the loss.
Necessity Requirements
- D was acting in an emergency to prevent harm to C, a third party or themselves.
- D was not at fault in causing the emergency.
“emergency” = risk of death or serious injury
D must have believed that their negligent act or omission could prevent the harm.
