Defences to negligence Flashcards
Who must prove the defences and to what standard?
It is for the defendant to prove on the balance of probabilities.
What are the requirements for proving the defence of consent?
- The claimant had capacity to give valid consent to the risks
- The claimant had full knowledge of the nature and extent of the risks.
- The claimant agreed to the risk of injury
- The claimant agreed voluntarily
When will a claimant not have capacity to give valid consent?
When they are a child or mentally ill.
When will a claimant be deemed to have agreed to the risk of injury?
Their agreement could be expressed or implied.
Knowledge of the risk alone is not the same as agreeing to it.
The risk must be so glaring that the claimant is implied to have agreed to it.
What is the position in relation to sports and agreeing to the risk of injury?
By willingly engaging in the sport, the claimant voluntarily agrees to the risks inherent in that sport but not to risks which are not inherent in that sport e.g. serious foul play in football.
What does it mean that the claimant must agree voluntarily?
Employees who know of the risks of their jobs are not necessarily voluntarily running those risks, since they may have little real option if they wish to keep their job. It is therefore very difficult (although not impossible) to succeed with the defence of consent where the claimant is an employee.
Rescue cases will not necessarily be deemed to be acting voluntary, it is an impulsive desire to save life.
When may consent be negated by statute?
S 149 of the Road Traffic Act 1988 prevents the use of consent by motorists facing claims from their passengers. For example, a drunk driver cannot rely on consent to defeat the claim of a passenger who voluntarily accepts a lift and is injured as a result.
The Unfair Contract Terms Act 1977 (defendants in course of business but not consumers) and CRA 2015 (when dealing with consumers) provide that being aware of a term limiting / excluding liability for certain losses does not mean the party consents to those risks/losses.
What is contributory negligence?
It is where a person suffers damage partly due to their own fault and partly the fault of another person.
What is the consequences of contributory negligence?
It doesn’t defeat a claim but it reduces the potential damages available.
What is the test for contributory negligence?
- The claimant failed to take reasonable steps for their own safety; and
- that failure contributed to the damage suffered
A claimant is required to take the same degree of care that a reasonable and prudent person would take.
When are allowances made in relation to contributory negligence?
Allowances are made for people placed in an emergency or difficult dilemma.
Additionally, rescuers are generally protected unless they helped create the emergency in the first place.
What standard of care are children held to in contributory negligence?
The court will take into account their age.
What does it mean by the claimant’s failure contributed to their damage?
The claimants fault must have contributed to the damage, although it need not contribute to the accident.
If contributory negligence is established, how are deductions quantified?
Damages are reduced by a percentage which is just and equitable.
The claimant’s degree of culpability will generally be expressed in percentage terms. An equivalent percentage will be deducted from the claimants award.
In relation to contributory negligence, how are deductions made when someone suffers damage in a car accident and was not wearing a seatbelt?
25% reduction if wearing a seatbelt would have prevented injury.
15% reduction if wearing a seatbelt would have reduced injury.
0% if wearing a seatbelt would not have changed the damaged suffered.
