sem 2 - last lecture (6) Flashcards
once a tortious claim has been estbalished what is the defendant entitle to
any potential defences wiht onus of proof on the defenant not the claimant
whatrt are the defences you might want to rasie if accused of comitting tortious act
contributory negligence
violenti non fit injura - voluntary assumption of risk
ex turpi causa no oritur actio
act of God
Personal Defence
Necessity
what is act of God in short
somethin happens that no on could control
haev no regress over other indi
cort decided if responsiblity of park to keep trees safe so negligence if they weren’t doing proper/regular inspections
personal defence
aka self defence
allowed to take reasonable action/reasonable force to defend ourself
proprotionte to threat - court looks at context of situation to see if you did to mich
necessity
the tort/actin was necessary to rpevent a much greater than harm
has to be proprtionate to the threat/response
contributory negligence
what is partial defence in contributory neglgience
youve done somethhing negligently casuing harm but the one who suffered hatm casused/contributed to some of injuries/harm/damages
what does court do in contributory negigence cases - in relation to damages
herswhat yu fif to contribute to teh case and then reduce damges to account for that
what does the law reform contributory act 1945 set out
in cetian cirmcunstances what reductions wil be made
what 3 cases do we use for contributory negligence
st george v home office 2008
Jackson v Murray 2015
Nettleship v Western 1971
what happend in ST G V HOME OFFICE 2008
prisoner well known to police in young offenders
on top bunk fell off seriously injured - brain injury
fell off casue he had seizure as a result of being addicted to drugs and alochool and prison knows he has history of seizures
what did the parties and court say in st g v home office 2008
prsino say we might be responsible for for ptting you on top bunk knowing you at risk but you partly responsible by being a drug addict
court says no contributory negligence as situationbeen so closely connected w the harm that has been done
and prioson was tryna say casue you’ve been drug addict you responsible for injuries arising 10 years later- but xourt sayonig that is too far removed
prison entirley responsibel
what did st g v home office teach us about contributry negligence
you must be contributing actively in sufficient closeness to the event
so no contributory negligence
what happened in jackson v murray
school bus
13yr old ets of school bus crosses road and gets hit by a car and injured
driver (murray) isnt speeding but not drivinig carefully/slow enough considering school bus is there
so considered not driving carefully/sufficient enough
wants to bring claim against driver saying driver should’ve been more careful
but 13 yr old girl should be somewhat responsible for her safety
what awas the decision in jackson v murray
injury loss / damage 50 50 split
driver should’ve been more cautious approaching a school bus
13 yr old shouldve been more cauions
what happened in nettleship v weston
learner driver case
woman goes out driving w neighbour/friend who teaches her to drive and they have an accident
neighbourfried injured and tries to pursue
25% reduction each for damages 1
what does nettleshhip and western teach us
never totally get put of tortious act by way of contributory negligence
just casue you a ;earner driver dont mran nish
whats the tagline/key thing for voluntary assumption of risk
to the one who knows of the harm - no harm can be done
voluntary assumption of risk is all about
voluntary consent
if you can prove someone voluntarily consented to the harm casued to hem then
you have completed defence you not gonan be reliable
what are the two situations in whihch you have completed defence
consent to infliction of harm e.g. medical
consent to risk of harm inflicted accidentally -e.g when doing ultra high risk activities - my be asked to sign away righs to make claims should you be injured
what would be an example of an unfair term in the contract
i wont hodl anyone responsible for my injuries even where they have done something negligently
when do you always ahve a claim regardless of if you signed away your rights or not
if someone acc does something negligent and wrong e.g.they pack your bag wrong
what case do we use for voluntary assumption of risk
morris v murray
what happened in morris v murray 1990
pilot and frined go otu drinkign
then decide to take airplane for a flight
crashes pilot killed
oilot frined wants to pusrue claim against dead pilots estate saying you negligently flew plane when drank and this was v dangerosu for both of us
court says -violenti non fit injura - to one who consesnt no hatrm
it was also partly your idea to go in aeroplane when you were drunk and it wasn’t safe so can’t then make claim for damage that arises
this was a compete defense - no liability/responsibility
talk to me about volunteer risk
when someoen goes into rescue to what eztent are they willingly accepting risk
professional accept level of risk reasonable in their circumstances - in fireman cases there willbe a point where teh level of risk you experieicnign beyond that you’ve consented for
consent holds you in realm of safe and reasosnable workn
but here you also expected to be of reasonable fortitude
so standard of lelvel of toleranc efor fig
just read over slide bfore the thing
what does ex turpi cuasa mean
you can’t amke prosnal injury claim/damages that arise out of your own criminal activity
ex turpi causa is the x principle
equitable principle
what does the equitbale pricple prevent criminals from doing
brignin caim against fellow criminal
if do somehing illegal and in the proces you get hurt and you pursue a claim agaisnt whoever has hurt you you might have no luck becasue your actions were founded on
illegality
want arent you supooed to be able to do from crminal acitivyt
profit
does ex turpi cuassa maena a crimanl who get shur can never make claims against people and expand
no
depends on what is going on in the situation
what cases do we use for ex turpi causa
vellino v chief constable of greater machester 2001
revill v newberry 1996
vellino v chif constable
petty criminal kown to manc police
he is sa serious esape artist
police go to arrest him ther is a scrap andhe escapes
jumps out of 2nd floor and suffers brian injury
he says police owe him duty of care ass alreadybeen arrested and you owed me a duty of care to not let me jump out of window. + you kenw my hispopry and that i was that kid of person
court says no
why did court say no in vellino v chief constable
this was an example of tryna found your claim
you escaped custody ad got injured in the process - that’s your problem so police not gonnabe liable for that
what happend in revill v newberry
trespasser got shot by man waiting in shed for him
reville pursued action for neglgiencec reslting in personal injury and also claimed occupiers laiblit
newberry tried to defend saying he cant be held accountable for someone trying to burgle his property and gets shot
they say reville comes to place alot so knkew about risk and consented - but court says no he didnt knwo about riskof ebin g shot and no one warnedhim
then they say ex turpi causa - mr revilles actions were illegal and he was illeally tryna burgle and trespass - in process of ebing ilegal he got hurt so shouldn’t be able to reclaim loss
court sya just cause reville doing something illegal dont mean he excluded from all claims of personal innjury
non criminal still held to standard rewuired in occupirs laibltiy - i.e. duty of care to trespassers and there was somethign he could do about the danger
so court says you cant use illeflaity defence t excuse your own extreme , disproportionate illegal actions
remedies
reemdies ar ewaht you get at the
end
we looking at remedies in
common law
non pecuniary damages are not
moeny
non pecuniary damages are
own pain and suffering and loss of future opportunities
dont have a value got to work it out conceptually anfd argue about it
what are pecuniary damges
money
e.g. how much money did you loose when couldnt go to work for 10 weeks as a result of the tort
what are you expected to do with you rlosses
mitigate
what does mitigate losses means
ahve to make effort not to loose to much and make losses worse
example of mtiitgation
if doctor sasy you can work after x weeks you should go back
waht does ciurt try to reduce
amount of additinoal claim dont wanna be overgeneorus
they want to calculate what you actually lost
give example of expectation of mitigation
going to mecical appointments and looking after your own conditins - not wilfully contributing to them being slow in recovey
what do msot peopel want a a result of tortious acts
common law remedy
what is time limit of equitable remedy
none
what can injunctions be
prohibitory
or
mandatory
prohibitory injunction meaning
you must stop doing simething
e.g. playing stuff at 3 am
injunction meaning
order that court tells someone to do something
injunctions are not cash they are an
equitable remedy
you can only get an injunction if
you’ve also been honest in the process
anything beyond money is x on the courts
discretionary
