DEFENCES YEAR 1

Question 1

what are the two main defences that can be raised by a defendant in a negligence claim

Answer 1

• that the claimant has consented or accepted the risk of harm
• that the claimant is partly responsible

Question 2

what is contributory negligence

Answer 2

The law reform (contributory negligence) act 1945 provides that any damages awarded to the C can be reduced to the extent/level the C contributed to his own harm (Sayers v Harlow 1958)

Question 3

is it possible for there to be a 100% reduction in damages

Answer 3

yes, jays v IMI 1985

Question 4

give some examples where damages can be reduced due to RTA

Answer 4

oconnell 1972, froom 1976, stinton 1993, badger 2005

Question 5

what is consent (violent non fit injuria)

Answer 5

full defence that the c has a voluntary assumption of the risk of harm

Question 6

what does the D have to show for consent to be a valid defence

Answer 6

1. ) knowledge of precise risk
2. ) free choice on behalf of the claimant
3. ) voluntary acceptance of the risk

Question 7

what can the defence of consent not be used for

Answer 7

RTA under the RTA act 1988

Question 8

What must the claimant have full knowledge of to consent

Answer 8

the understanding of the nature of the risk (stermer 1977)

Question 9

what must the claimant have when accepting the risk of injury

Answer 9

free choice, smith v baker 1891

Question 10

does consent apply when acting under public duty

Answer 10

no, as seen in Haynes (1935) and ogwo (1987)

Question 11

does every possible risk need to be explained in medical treatment to gain consent

Answer 11

no sidaway(1985)

Question 12

will a claim likely succeed if a claimant acts against employers orders

Answer 12

yes it will shatwell 1965

Question 13

is consent available if a tort hasn’t been committed

Answer 13

no lol wooldridge 1963

Question 14

what type of test is consent

Answer 14

subjective

Question 15

does a visitor to a property when injured by a workman give the occupier a defence to injury

Answer 15

potentially yes under s2(4) of the 1957 act, which says ‘where damage is caused to a visitor by danger due to faulty execution of any work, construction or repair by an independent contractor employed by the occupier, the occupier is NOT to be treated without more answerable for the danger if in all circumstances he had acted REASONABLY …..and had taken steps as he reasonably ought to satisfy himself that the contractor was competent and that the work had been properly done.

Question 16

what requirements will apply for an occupier to have a defence against injury done by a workman to a visitor

Answer 16

1. )must be reasonable for the occupier to have given the work to the ind contractor. (Haseldine 1941)
2. )contractor hired must be competent to carry out the task/is insured (bottomley 2003)
3. ) occupier must check the work has been properly done (Woodward 1945)

Question 17

what other three defences are there to an OL claim

Answer 17

contributory, consent, warning notices: s 2(4) 1957 its ineffective unless ‘in all circumstances it was enough to enable the visitor to be reasonably safe’. sometimes might need barriers (Rae 1990) OR sometimes if danger is obvious then no add. warning required (staples 1995)

Question 18

what are exclusion clauses

Answer 18

s 2(1) of 1957 an occupier can restrict or modify or exclude his duty by agreement or otherwise BUT for business occupiers this is subject to s 2(1) of the unfair contract terms act 1977 which says a ‘person cannot restrict his liability resulting from personal injury or death caused by neg, and s65 of the Consumer Rights Act 2015 provides that a trader cannot exclude or restrict liability for death/PI caused by neg’. SO if these clauses are in a warning notice they are ineffective