Tort 3.2- Defences

Question 1

What possible defences are there for negligence & what type of defence are they?

Answer 1

• Consent: complete defence 🤝
• Necessity: complete 🚨
• Illegality: complete 👮
• Contributory Negligence: partial 🤡

Question 2

What are the requirements for consent defence?

Answer 2

1. C must have full knowledge of nature and extent of the risk
2. C must willingly consent to accept the risk of being injured due to D negligence.
3. Consent can still be raised and succeed even if D is solely responsible for the initial accident.

Question 3

In which specific situations does consent apply or not apply as a defense?

Answer 3

1. Motor Vehicles: s149 RTA 1988, if passenger insurance is compulsory, consent is not applicable.
2. Employees: Employees who continue to work despite knowing the risks cannot claim consent.
3. Rescuers: Rescuers do not consent to the risk of injury if acting to rescue persons or property endangered by D’s negligence or under a compelling duty.

Question 4

How does consent function in different contexts, such as sports and trespassing?

Answer 4

1. Sports: C is deemed to have consented if they are fully aware of the risks and know what D has done.
2. Trespassers: Consent is applicable to trespassers.
3. Diving into Water: Anyone diving knows the risks involved, and thus consent is valid in this context.

Question 5

What are the requirements for an illegality defence?

Answer 5

1. C invl in illegal activity at time injured by D
2. Very close connection between illegal activity C and injury suffered
3. The defense of illegality can be used when both parties have agreed to participate in the illegal activity.

Question 6

In what circumstances can the defense of illegality not be used against a company?

Answer 6

The defense of illegality cannot be used against a company when the wrongful acts of its directors and shareholders are not attributed to the company itself.

Question 7

What constitutes contributory negligence on the part of C?

Answer 7

1. Carelessness on C’s Part: C exhibits carelessness that contributes to their own damage.
2. Contribution to Damage: C’s carelessness must have contributed to the damage they suffered, not necessarily to the accident itself.

Question 8

How does the Law Reform (Contributory Negligence) Act 1945 influence damages awarded in cases of contributory negligence?

Answer 8

1. Reduction of Damages: Damages for CN are reduced to what the court thinks is just and equitable.
2. Consideration Factors: The court considers C’s share of responsibility for the damage, including culpability and causation.

Question 9

What are some common examples of contributory negligence and their impact on damages?

Answer 9

Seatbelt Usage:
Not wearing a seatbelt can result in:
- 25% reduction if injuries could have been avoided.
- 15% reduction if injuries were less severe.
- 0% reduction if wearing a seatbelt would not have made a difference.

Crash Helmets:
- Similar reductions apply for failing to wear crash helmets.

Drunken Driving:
- Passengers who knowingly accept lifts from drunk drivers may have their damages reduced if injured in an accident

Question 10

How is the standard of care assessed in contributory negligence cases?

Answer 10

General Test: The test for CN is whether C failed to take reasonable care for their own safety, compared to what a reasonable person would do.

Special Considerations:
1. For children, the court considers whether a child of similar age would have taken more care.
2. Rescuers are judged against a standard of a reasonable rescuer, taking the emergency situation into account (If a rescuer shows “wholly unreasonable disregard for their safety,” CN may be found)

Question 11

What is vicarious liability?

Answer 11

Where one party is held liable for torts of another, because of their specific relationship - here in employer context

Question 12

What test is applied for vicarious liability?

Answer 12

1. Tort committed (by employee)
2. Employee is an employee of employer, or in a relationship akin to employment
3. Tort committed in course of employment

Question 13

What factors are considered for doubtful cases, to determine a relationship akin to employment?

Answer 13

• sufficiently analogous to employment to make it fair, just & reasonable
• Employer more likely to be able to compensate C
• Tort committed due to activity undertaken on employers behalf
• under employer’s control
• activity part of employer’s business activity

Question 14

Where an employer lends an employee, who is vicarious liable?

Answer 14

Still the original employer (although both employers could be)

Question 15

What are the essential steps for an occupier to rely on an exclusion notice in OLA 1957/PEL claim?

Answer 15

1. Notice Attention: Reasonable steps must have been taken to bring the exclusion notice to C’s attention before the tort was committed.
2. Wording Coverage: The wording of the notice must specifically cover the type of loss suffered by C.

Question 16

What are the limitations on excluding liability under UCTA 1977 for OLA 1957 claim?

Answer 16

1. Cannot exclude liability for death or personal injury (PI) resulting from negligence.
2. Can exclude liability for damage to property or other losses, provided the notice is reasonable.
3. Reasonableness Factors:
   - Were the parties of equal bargaining power?
   - What are the practical consequences for both parties?

Question 17

How does CRA 2015 impact exclusion of liability in OLA 1957 claim?

Answer 17

1. Negligence Liability: Cannot exclude liability for death or PI resulting from negligence.
2. Property Damage: Can exclude liability for other losses, but must pass the fairness test.
3. Fairness Factors:
   - Exclusion term must be fair and reasonable, considering good faith.
   - Factors include transparency, balance between parties, and the nature of the subject matter of the notice.

Question 18

What is the rule regarding exclusion notices for private occupiers OLA 1957 claim?

Answer 18

Private Occupiers: Private occupiers (e.g., householders) are not subject to the provisions of CRA or UCTA. They can display exclusion notices without being restricted by UCTA’s reasonableness requirements.

Question 19

What are the statutory controls related to exclusion notices under UCTA 1977 in regard to PEL?

Answer 19

1. Exclusions for Death/PI: D cannot exclude liability for death or personal injury (PI) resulting from negligence.
2. Other Losses: D can only exclude liability for other types of loss or damage if the disclaimer satisfies the reasonableness test.
3. Reasonableness Test: Must be fair and reasonable to rely on the exclusion notice, considering all circumstances at the time liability would arise.

Question 20

How does CRA 2015 impact exclusion notices in PEL claims?

Answer 20

1. D cannot exclude liability for death or PI resulting from negligence.
2. Any exclusion of liability for other losses must meet a fairness standard, considering good faith and balance in rights and obligations of the parties.
3. Fairness Considerations: The court will consider good faith and whether there is a significant imbalance in the parties’ rights and obligations to the detriment of the consumer

Question 21

What factors are considered when deciding the reasonableness or fairness of an exclusion notice for PEL?

Answer 21

A. Bargaining Power: Were the parties of equal bargaining power?

B. Practicality of Alternative Advice: Would it be reasonably practicable to obtain advice from an alternative source, considering cost and time?