General Negligence-Absence of a Defence Flashcards
2 types of defences to a claim in negligence.
Consent
Contributory negligence
When does the defence of consent apply?
When C knows there is a risk of the D acting in a negligent way and freely consents to take that risk.
Is consent a complete or partial defence?
Complete
What will the C receive if a defence of consent is present?
Nothing-no damages
What do judge prefer to use because consent is a total defence?
Contributory negligence-where they have flexibility to apportion blame between the parties.
Case for general principle of consent.
Morris v Murray (1990)
Facts of Morris.
After both had a good deal to drink, they decided to go for a flight in D’s private aeroplane.
Aeroplane crashed.
C could not receive damages as he had consented to the risk when he agreed to fly drunk.
Case which shows that the C knowing about the risk does not automatically mean there is consent.
Smith v Baker (1891)
Does C knowing about the risk automatically mean there is consent?
No
Facts of Smith.
C was employed to drill holes in a rock face near where a crane was working and was injured by a rock falling from the crane.
D argued the defence of consent.
Court rejected this argument, particularly in light of the fact that C had needed this job to earn his living.
When can the D not use the defence?
When consent was not freely given
Case for D cannot use defence of consent where consent was not freely given.
Haynes v Harwood
Facts of Haynes.
Horse-drawn van was left unattended in a busy street.
Horses startled (perhaps by stone thrown by little boy) and bolted.
Policeman dashed out into the road to stop the horses and injured in the process.
Entitled to damaged as he felt morally obliged to intervene.
By what Act was the defence of contributory negligence introduced in its modern form?
The Law Reform (Contributory Negligence) Act 1945
What does the Act say in relation to the damages where the defence of contributory negligence is applied?
Where there is contributory negligence, the amount of damages which the C receives will be reduced in proportion to their blameworthiness.
Example of how much damages will be given where contributory negligence is applied.
If the accident is 75% D’s fault and 25% C’s fault, the C will receive 75% of damages.
What will determine whether a C is partly to blame for the accident?
Whether they reached the standard of the reasonable man in the circumstances.
Case for where C is partly to blame for the accident according to the reasonable man test.
Brannon v Airtours (1999)
Case for where C was not partly to blame for the accident according to the reasonable man test.
Yachuk v Oliver Blais (1949)
Facts of Brannon.
C, a holiday maker, was at party organised by D.
C was injured when he climbed onto a table in order to get out and collided with a low fan hanging from the ceiling.
D was held to be negligent in arranging the room in such a way as to make it difficult to get out without climbing over the furniture.
C found to be partly to blame for actually standing on table despite warnings not to.
Facts of Yachuk.
C, a 9-year-old boy, brought petrol from the D and was then burned while playing a game with the petrol.
D liable and there was no CN as the boy had reached the standard of a reasonable 9-year-old.
2 situations where there can be contributory negligence.
- Where C is partly to blame.
- Where C made the accident worse.
How will the court decide whether C made the accident worse?
Considers whether the C has reached the standard of a reasonable man.
Case for where C made the accident worse considering reasonableness test.
Froom v Butcher (1975)
Facts of Froom.
Motorist was injured in a road accident.
Accident was the fault of the other driver but C was not wearing a seat belt, which at the time was again widely recommended but not legally required.
C’s damages were reduced by 25%
Case for where C did not make accident worse considering reasonableness test.
Smith v Finch (2009)
Facts of Smith v Finch.
Cyclist without helmet was injured when D’s motorcycle collided with him.
No CN as injuries were such that would have occurred even had he been wearing a helmet.
