Defences Workbook

Question 1

Name the three main defences.

Answer 1

• Consent ( volenti) - C consents to risks
• Contributory negligence- C contributes to injury/damage
• Ex turpi - Crime

Question 2

What are the main aims of defences ?

Answer 2

The aims are to try to provide some fairness in tort and to portion blame in the correct way. However this can be unfair because those causing harm are avoiding their obligations

Question 3

What is the act that governs contributory negligence ?

Answer 3

The law reform contributory negligence act 1945

Question 4

Explain contributory negligence ,

Answer 4

This is a partial defence due to the updated law on the law reform CN act 1945 , which means that a persons damages may be reduced if they have contributed to there own injuries

• In order for CN to succeed:
  • The claimant must fail to take care of his own safety in a way that partially causes his injury
  • The claimant must fail to recognise that they are risking there own safety
• the judge will decided the percentages that the c is responsible for and reduce this from damages

Question 5

What are the cases for contributory negligence ?

Answer 5

• Sayers v Harlow - women was trapped in public toilet and is an example of contributory negligence where damages were reduced by 25%
• Badger v Ministry of Defence 15% reduction in damages. Mr Justice Stanley Burnton established the principle that ultimately, the principle of contributory negligence is that a person has responsibility for his actions.
• Jayes v IMI ltd - lost finger at work - example of contributory negligence and 100% reduction in damages

Question 6

When is the defence of contributory negligence commonly used ?

Answer 6

Driving accidents ie

• O Connell v Jackson - 15% reduction
• Stinton v Stinton 1/3rd of damages were reduced

Question 7

Explain the limits on contributory negligence

Answer 7

Children- The courts recognise that children are less ab;e to recognise risky conduct than adults

• Gough v Thorns - 1/3rd blame on the child. Lord denning established that very young child cannot be guilty of contributory negligence. An older child may be. But it depends on the circumstances.”
• Morales v Eccleston - C was liable and 75% contributory negligence , which was held that the C had been reckless as to his own safety

Question 8

What is the standard of care for a rescuer ?

Answer 8

The standard of care is compared to that of the reasonable rescuer rather than that of the reasonable man.

Question 9

What are the cases for rescuers ?

Answer 9

Baker v TE Hopkins- he voluntarily accepted the risk

Question 10

Why is the case of Morales v Eccleston seen as unfair use of the defence ?

Answer 10

This case shows the harsh nature of CN on claimants , sometime takes reductions too far and does not get it right

Question 11

What is meant by in an emergency situation , the courts have accepted that a person may not have time to tale the best course of action ?

Answer 11

This means that the courts recognise that a claimant is less likely to acknowledge the risks in an emergency situation which suggests that this is less likely to be contributory negligence as a defence ie

• Jones v Joyce - reasonable that a person in the claimant’s situation would have reacted the same way i.e

Question 12

What case can be used to illustrate an emergency situation ?

Answer 12

Jones v Joyce

Question 13

What is meant by apportioning blame? Name the two factors that need to be taken into account.

Answer 13

1. Causation: The extent to which the ds actions caused his injuries
2. Culpability: the relative blameworthiness of the claimant and the defendant for the claimants injuries

• Froom v Butcher - where the cs injuries would have been avoided if they had worn a seatbelt

Question 14

What is the definition of Volenti non fit injura?

Answer 14

This means that “ to a willing person injury is not done”

• This is a full defence where the claimant voluntarily accepts the risks of harm and damages are not rewarded

Question 15

What is needed for defendant to succeed in a defence of consent

Answer 15

• Knowledge of the risks extent and nature
• Exercise of free choice by the C
• Voluntary acceptance of the risk

However there is an restriction of the defence under s149 of the road traffic act 1988 which argues that the defence cannot be used for road traffic accidents

Question 16

Explain what it is meant by knowledge of the risk for consent.

Answer 16

This means that the defence will only apply if the claimant knows the full nature and extent of the risks ie

• Stermer v Lawson - defence failed because c did not understand the nature of how the motorcycled worked

Question 17

When will the defence of consent not succeed?

Answer 17

Consent will not succeed where the claimant has no choice but to accept the risk. The c must voluntarily understand the risk of harm ie

• Smith v Baker - had no choice but to continue working which means that consent has failed
• Hayes v Harwood - No defence of consent
• Ogwo v Taylor - where there is a duty to act the defence of consent is not relevant

Question 18

What is meant by voluntary acceptance of the risk regarding the defence of consent?

Answer 18

This means that the claimant must understand what they are consenting to ie in the case of Morris v Murray

Question 19

What is the case that establishes the principle that If the claimant acts against employers orders or against statutory rules and they are injured the defence of consent is likely to succeed.

Answer 19

ICI vShatwell - court decided that by ignoring his employer’s instructions he had assumed the risk of injury and the defence of consent was successful.

Question 20

Explain the defence of consent and its significance for medical negligence.

Answer 20

The defence of consent is likely to be relevant in medical negligence claims ie

• Sidaway v governors- HoL established that consent in medical cases does not require a detailed explanation