Defences to Tort Flashcards
What is a partial defence?
Will reduce D’s liability by enabling the court to apportion some blame for the harm to another cause. D still liable but the quantum of damages payable by D will be reduced e.g Contributory negligence
What is a complete defence?
Will completely absolve D of all liability
e.g Volenti
Who and what is a defence proved by?
It is up to the D to prove (on the balance of probabilities) that the C contributed
What is contributory negligence?
-Partial defence
-Leading to a reduction in damages paid to the C
-Statutory defence found in Law Reform (Contributory Negligence) Act 1945
What act is contributory negligence found?
Law Reform (Contributory Negligence) Act 1945
What was the laws previous position on contributory negligence?
=Complete defence therefore the C could not recover anything in tort
= injustice
= Present law, where damages caused by Ds negligence was partly caused or increased by C, damages will be apportioned to reflect the fact that D was not completely to blame
=It is up to the judge to determine the amount of blame to the apportion, the judge will firstly set the full amount of damages and amend the figure accordingly
What does S.1 (1) Law Reform (Contributory Negligence) Act 1945 state?
“the damages recoverable in thereof shall be reduced to such an extent as the court thinks is just and equitable having regard to the claimants share in responsibility for the damage”
To raise the defence of contributory negligence what mast the D prove?
-The C failed to take proper care of their own safety in the circumstances
-The failure to take care was a contributory cause of the damage suffered
=2 part test illustrates that there is no fixed standard when assessing contributory negligence, it depends on the circumstances
What was confirmed in the case of Gough?
=Siblings waiting to cross a road, a lorry driver beckoned them across and the 13 year old girl was hit by a passing car. On appeal she was found not contributory negligent. Lord Denning stated “a very young child cannot be contributory negligent. An older child may be, but it depends on the circumstances. A judge should only find a child contributory negligent if s/he is of such an age as to be expected to take precaution for their safety”
What happened in the case of Gannon?
C, 14, was deemed contributory negligent when he divided into a shallow end of the swimming pool and broke his neck. A person of his age should have known the potential risks
What happened in the case of Sayers?
C accidently locked in a public toilet. C tried to climb out by placing a foot on the toilet roll holder which broke causing her to fail and sustain injuries. The local council was deemed liable for negligent maintenance but her damages were reduced by 25% for her contributory negligence for the way she tried to escape.
What happened in the case of Jones?
C worked at Ds quarry and had hitched a ride to the canteen by standing on the back of a tow bar. Another employee recklessly driving a tractor crashed into the back of the tractor C was on, C’s legs were crushed. D was liable (through VL) but court also deemed C 1/3 responsible for exposing himself to danger. Lord Denning “Contributory negligence requires the foreseeability of harm to oneself”.
On rare occasions what can happen in contributory negligence?
D will be negligent but there will be a 100% reduction of damages . This will happen in cases were the degree of fault on the C is so great, it is appropriate to make no order for damages
(Note some critics argue that this is illogical and inconsistent with the wording of the Law Reform (contributory Negligence) Act 1945 which requires fault on both the parties
What happened in the case of Jayes?
C lost the tip of his finger at work whilst cleaning a machine with the guard off. The employers were in breach of health safety rules for ensuring the guard was was in place. However C was 100% contributory negligent as he admitted his fault in taking the guard off. Lord Goff stated “there comes a point in time where the degree of fault is so great that the court ceases to make fine calculations”
What is the defence of “Volenti”?
Consent
What is the full phrase of “Volenti” and its translation?
“Volenti not fit injuria”
“no injury can be do done to a willing person”
What type of defence is “volenti”?
=complete defence
and applies when the D can show that the C voluntarily consented to risk of harm
To argue the defence of “Volenti” what must the D prove?
-C knew of the risk involved (Understood the nature of the risk)
-C voluntarily accepted the risk (had free choice in their actions)
=therefore this defence will not apply merely because the C knows the existence of a risk, the C must have full understanding of the nature of the actual risk
What happened in the case of Stermer?
C borrowed Ds motorbike. Consent failed because the C had not been properly shown how to use the motorbike and therefore did not fully appreciate the risks.
Is the test for consent objective or subjective?
=Objective
Therefore the question may not be whether C actually consented, but whether their behaviour made it reasonable for D to think there was consent
=People taking part in sporting events will therefore through implication be giving consent to the risks involved in that activity, as long as the activity is carried out within the rules
=In addition people at sport events are regarded as consenting to the normal risks associated with watching that sport
What happened in the case of Murray?
6 year old hockey spectator was hit in the eye with a puck. The owner of the rink were not liable as they had not being negligent in anyway, as the risk was foreseeable it was deemed that C consented.
What case confirms that “Volenti” applies to voluntary participants in Hazardous activites?
Poppleton
An inexperienced climber copied the actions of an experienced climbing, leading to him losing his grip and landing head first on 12 inch thick shock absorbing matting. High Court reduced the damages by 75% due to contributory negligence. However CA held C was entirely responsible as the “risk of possibly sever injury from an awkward fall is obvious ….. he was also voluntary undertaking”
Once the D shows that the C fully understands the nature of the risk, D must the do what?
Show C consented freely
What happened in the case of Smith ?
(Commonly employees are considered as not having a choice, i.e fear of losing job)
C worked in Ds quarry. A crane, negligently controlled by a worker, was constantly swinging crates above C head. C was aware of what was happening and the risk of falling stones so complained about the potential danger to employer, with no success. c was seriously injured. D tried to argue “Volenti” having HL disagreed, as C had little choice in the matter, as continuing to do his job was not dangerous, it was made dangerous by employers negligence
State an exception to the Volenti defence?
When a person has a duty to act to do their job and is injured by Ds negligence, volenti will not apply as the duty meant the D had no choice to act (therefore C was not voluntarily accepting)
What did Lord Justice William state in the case of Baker?
” it would certainly be a strange result if the law were held to penalise the courage of the rescuer by depriving him of a remedy”
What happened in the case of Haynes?
D failed to adequately tether his horse drawn court. The horses bolted in a crowded street and a police officer was injured when trying to help restrain the horses who were heading towards a women and child. He was not acting voluntarily, he was acting under his duty to protect the public.
What happened in the case of Ogwo?
D accidently set a fire to a premsies. C a firefighter entered the house wearing protective clothing however the heat was so intense he suffered serious burns to his body. Lord Bridge states “I can see no reason whatever why the should be held at a disadvantage as compared to the layman entitled to invoke the principle of the so called “rescue” cases”
What was confirmed in the case of Dann?
“There may be cases in which the drunkeness of the driver at the material time is so extreme and so glaring that to accept a risk from him is like engaging in an intrinsically and obviously dangerous occupation”
What happened in the case of Morris?
C consented to the risk of injury by going up in an aeroplane in poor visibility with a polit whom he know to be drinking all day. The aircraft crashed shortly after take-off. D killed and C was seriously injured. As C was aware of the nature of the risk and freely decided to board the plane as well as voluntarily accepted the risk of injury by knowing D was drunk.
