PQ (Defences) Flashcards
What is volenti?
Volenti - no wrong is done to the willing (voluntary assumption of risk)
- Volenti provides a complete defence where C voluntarily waives liability for D’s unreasonable conduct
What are the three requirements necessary for volenti ?
1) Claimant must waive liability for D’s unreasonable conduct
2) Waiver must be voluntary
Morris v Murray
- drunk airplane joyride (drank equivalent to 17 whiskeys)
Held: C consented to the risk by taking part in the flight
Subjective test: Claimant must know the risk and agree to it
3) Claimant must have full knowledge of the nature and extent.
- Being too drunk might result in the inability to appreciate the nature and extent of injury.
In Morris he was able to as the C was the one who flew the plane.
Exception to rule #3: Haynes v Harwood - Police stopping horses case. Stopped horses out of emergency and did not willingly take the risk. defence of volenti not available
What are the exceptions to volenti?
- Paternalistic duties
- if D owes a duty to prevent the act that C commits [Reeves v CPM] - Traffic Accidents
S 149 of Road Traffic Act 1988 - volenti defence inapplicable in road traffic accidents
Pitts v Hunt - defence of volenti is unavailable
3. Contract terms s 2(1) of UCTA 1977: a term that excludes or limits a business's laibility in negligence for death or personal injury will always be invalid
What is contributory negligence?
When the C failed to take reasonable steps for their own safety which resulted in injury.
What is the defence of contributory negligence?
Law Reform (Contributory Negligence) Act 1945 s1(1) - a court can reduce the claimant’s damages by whatever amount seems just and equitable according to the claimants share in responsibility for the damage.
Note; Does not apply to torts that consider dishonesty
How do you apply contributory negligence?
- Did C fail to exercise reasonable care for his won safety?
- Did this failure contribute to C’s damage?
- By what extent should C’s damages be reduced?
How do you answer the first limb of the CN test?
- Jones v Livox Quarries - what would a reasonable person in C’s position do to avoid being hurt?
Facts: C was negligently riding on towbar of moving vehicle
CN did apply where C was injured by falling off
CN would not apply if C had been hit in the eye by a shor
Reeves v CPM
- C’s own deliberate act contributed to the losses suffered
- D’s liability reduced for contributory negligence
How do you answer the second limb of the CN test?
C’s carelessness will only provide a defence if they made some contribution to the injuries they suffered.
- no defence if carelessness has no causal link.
1) Claimant must be negligent
2) Claimant’s negligence is a but for cause of his loss
3) Claimant’s negligence exposed him to the particular risk that occured
How do you answer the third limb of the CN test?
Jackson v Murray two-fold approach
- Causative potency: how potent was each party’s action in causing the loss?
- In Jackson, causative potency of D’s conduct was not any less than C - Relative blameworthiness: How blameworthy is C, in respect of D
What is the defence of illegality?
It prevents C from suing the D in tort when
1) D committed a tort in relation to C and C, in consequence, committed a criminal offence and suffered a lost
2) C committed a serious criminal offence and D, in consequence, committed a tort in relation to C
3) D committed a tort in relation to C which had the effect of preventing C making money by committing the criminal offence
What is the rule for illegality?
The wider rule set out by Lord Hoffman in Gray v Thames in relation to this defence is that C cannot recover for damages consequent upon his own criminal activities.
Henderson establishes that this is good law along with Patel v Mirza.
What happens when there is a case on Joint-Enterprise?(illegality)
According to Joyce v O’Brien, D has a defence of illegality where the character of a joint criminal enterprise was such that
- It was foreseeable that a party to the enterprise could be subject to increased risks of harm
- As a consequence of the pursuit of those criminal activities
What happens when there is a case on incidental criminal activity? (illegality)
D has No Defence if the illegal acts of C were merely incidental, and the damage suffered by C was caused by D’s negligence rather than C’s criminal activity [Delaney v Pickett]
What are the two rules on illegality?
1) Range of factors approach (Lord Toulson)
Consider
1) the underlying purpose of the prohibition
2) any other relevant public policy on which the denial of the claim may have an impact
3) whether denial of the claim would be a proportionate response to the illegality
factors for proportionality may include:
1) the seriousness of the conduct
2) the centrality to the contract
3) intentional
4) whether there was marked disparity in the parties’ respective culpability
2) Rule-based approach (Lord Sumption)
question if whether the person making the claim is obliged to rely in support of it on an illegal act on his part.
- looking for a causal link between the illegality and the claim
