Negligence: Defences

Question 1

4 stage test

When can D rely on the defence of consent (volenti)

Answer 1

1. C had capacity to consent (not a child / mentally impaired)
2. C knew full extent and nature of risk (not just of a risk)
3. C agreed to the risk of injury (will only be implied if obviously dangerous)
4. C’s agreement was voluntary (no duress)

Question 2

When is the defence of consent unavailable?

Answer 2

D is a driver and C is their passenger

Question 3

When is the defence of consent unlikely to succeed?

Answer 3

C is an:
* employee
* rescuer
* medical patient
* sportsperson and abnormal injury

NOTE: exclusion clause does not equate to consent

Question 4

3 conditions

When will the defence of illegality succeed?

Answer 4

1. C commits an illegal act at time they suffer loss caused by D
2. C’s criminal activity causes their loss (not incidental)
3. C’s criminal activity is serious

Question 5

When is the defence of illegality likely to fail?

Answer 5

• Crash whilst transporting drugs
• minor traffic offence (leaves car in restricted zone)

Question 6

2 stage test

When will the defence of contributory negligence succeed?

Answer 6

1. C failed to take reasonable steps for their own safety (objective); and
2. C’s carelessness contributed to their damage

Question 7

If D is drunk, will C be found contibutory negligent?

Answer 7

Only if C knows D consumed excessive alcohol

Question 8

I

Question 9

If C is a child, will they be contributory negligent?

Answer 9

Only if they are old enough to take precautions

Question 10

If C is a rescuer, will they be found contributory neglient?

Answer 10

Only if they show wholly unreasonable regard for their safety

Question 11

If C acts in an emergency, will they be found contibutory negligent?

Answer 11

Only if their act was an unreasonable response

Question 12

If C commits suicide in police custody are they likely to be found contributory negligent?

Answer 12

Yes

Question 13

When is the defence of contributory negligence likely to fail?

Answer 13

• C is an employee and work is dull, noisy and repetitive
• C is a prisoner and prison aware of risk (e.g. withdrawal from drugs)

Question 14

2 stage test

What is needed to establish necessity as a defence?

Answer 14

1. D was acting in an emergency to prevent death or serious injury (subjective)
2. D did not cause the emergency and acted reasonably