Neglience defences

Question 1

what are the types of defences?

Answer 1

• volenti
• contrib neg
• exterp-dont need
• waivers
• the limitations act
• compensation act
• sarah

Question 2

what is volenti?

Answer 2

consent defence , no injury will be done to the willing

Question 3

what does volenti rely on?

Answer 3

4 main philosophical principles
Deontology (rule- or duty-based)
See in particular: Immanuel Kant (1724-1804)
Utilitarianism (outcome-based)
See in particular: John Stuart Mill
Paternalism (the ‘best’ decision) -greater good e.g seatbelts ahve to
Individual Autonomy (acceptance of risk) e.g athlete

all underpin

Question 4

volenti cases?

Answer 4

Smith v. Charles Baker & Sons [1891]-neeed to accept if no = no consent and volenti- employer to employee rare due to power pressure into volenti - just cause know risk doesnt mean you accept it knowledge is not enough to consent

ICI v. Shatwell [1965]- use for volenti if you want #??

Morris v. Murray [1990]- drives plane and crashes ct said ur fault no volenti u consented - get 0 no claim no dam

Reeves v. Commissioner of the Metropolitan Police [1999]- both liable he hung himsel ftoo ??

Rootes v. Shelton [1968] (Australia)-??

Poppleton v. Trustees of the Portsmouth Youth Activities Cmtee [2008]- modern version -sports risk ? - see this alot in sports

The Darwin Awards- male- idiot theory- conseted risk and fairly obv= idiots

Browning v. Odyssey Trust Company Ltd [2014] -
(Northern Ireland)- crowd acceptance of rtisk regardles sif child or adult- child liable even though not fair -critiscms - all or othing principle

Victim Insistence on a Relationship (VIR)- kenneth argue for other principle this reflections on assumption of risk - volenti shoudl be concious effort

Question 5

summary for volenti?

Answer 5

Leading Case: Morris v. Murray [1990] 3 All ER 801
Arguably, Volenti as a concept has gone out of favour in recent years
The key problem is its ALL or NOTHING approach
If a claimant is held to be volens (or consents) to the activity, then this amounts to a complete defence to any negligence claim, notwithstanding that the defendant may have been partially at fault.
Generally not applicable to employment

Question 6

contrib neg case?

Answer 6

Jones v. Livox Quarries [1952]- policy shift from volenti

3qs- mainly other tfault but still soem contrib

Question 7

what are the 3 qs?

Answer 7

Three KEY Questions:
Did the claimant fail to exercise reasonable care for their own safety
Did this failure contribute to the claimant’s damage?
By what extent should the claimant’s damages be reduced?

Question 8

contrib neg cases?

Answer 8

Sayers v. UDC [1958]- public toilet
Jayes v. IMI (Kynoch) Ltd [1985]- can thave 100% cn only 90/10
Stinton v. Stinton [1995]??
Fitzgerald v. Lane [1989]- work out blame then prop
Froom v. Butcher [1976]-hoined respons equitbale and just 20% contrib- seatbelt ting
Smith v. Finch [2009]- biekr no helment ??- contrast with horse riding stat
Ayres v. Odedra [2012]-??
Ayres v. Odedra [2012]-??
Hicks v. Young [2015]-Key Facts: The 23yr old claimant suffered a brain injury when he fell from a moving taxi after the driver believed he was going to escape (50% contrib)
Sparrow v. Andre [2016]- similar 60% cn

Question 9

summary of contrib?

Answer 9

Leading Case: Froom v. Butcher [1976] QB 286
Pragmatic approach to apportioning fault
Dependent on a prior breach of duty by the defendant
Important to separate out the accident from the damage

Question 10

what about ex turpi?

Answer 10

not good law 2 big main ones are volenti and contrib

Question 11

what about waivers and disclaimers?

Answer 11

sign for liab, overlap volenti and assumption of risk
satt version of volenti
cant use in egland-ucta can use in canada-Loychuk v. Cougar Mountain Adventures Ltd [2012] (CANADA)

Question 12

cases for waivers?

Answer 12

Maylin v. Dacorum Sports Trust t/a XC Sportspace [2017]-??

Question 13

summary for waivers

Answer 13

Leading Statute: Unfair Contract Terms Act (UCTA) 1977, s.2(1)
Cannot exclude liability for death / serious injury
BUT, effect of the inherent risk sports cases is very similar to a waiver…

Question 14

what is the limitation act?

Answer 14

Time Periods:
Claims not involving personal injury (6 yrs)
Claims involving personal injury, even if this is only a small part (3 yrs)
See also the Latent Damage Act 1986 s.14A(4)(b) which allows 3 yrs from the date on which the claimant knew, or reasonably could have known about the defect.

only work when 18 then self hen 18

Question 15

what is the compensation act?

Answer 15

s1 2 and 3?
fear of being sued See also 
Lauren O’Sullivan, ‘Money for Nothing and Cheques for Free?: Negligence and the Perceived Compensation Culture’ (2014) 
UK Student Law Review 2
sports

Question 16

what is sarah?

Answer 16

The Social Action, Responsibility & Heroism Act 2015 (S.A.R.A.H.)

DLA Piper (SHE Matters, 2015): ”That is a purely technical note, which merely means that the Act does not make any changes to existing legislation. However it can be argued that in this case the true meaning is rather wider than that intended.”

ignore stat no legal auth whatsoever