Tort 4 - Defences Flashcards
What does ‘Volenti non fit injura’ mean?
That to which a man consents cannot be considered an injury.
What must a defendant show to succeed with the defence of consent?
The claimant had capacity, full knowledge of the risks, agreed to the risks, and agreed voluntarily.
What is the significance of a claimant’s capacity in consent?
The claimant must have mental capacity to consent to the risks.
What is required for a claimant to have full knowledge of the risks?
The claimant must understand the nature and extent of the risks.
True or False: Knowing a risk is the same as consenting to it.
False.
What is an example of implied consent?
Engaging in dangerous activity such as walking on the edge of an unfenced cliff.
What case illustrates that employees do not necessarily voluntarily consent to risks?
A doctor who died trying to save workmen from a trapped mine.
What is the effect of a successful consent defence?
It is a complete defence and the claimant can claim no damages.
What does contributory negligence mean?
Where the claimant is at fault too and that fault contributed to the claimant’s loss.
What must a defendant establish to find contributory negligence?
The claimant failed to take reasonable steps for their own safety and this failure contributed to the claimant’s damage.
What is the result of finding contributory negligence?
It reduces the liability of a defendant.
What is the standard of care expected from a claimant?
Some degree of care as a reasonable and prudent person would have done.
How does age affect the determination of contributory negligence?
The court will take into a child’s age to determine the standard of care expected.
Are rescuers generally protected from contributory negligence?
Yes.
What is the test for the defence of illegality?
Whether the claimant committed an illegal act at the time of loss.
What factors are considered in the Patel v Mirza test?
- Underlying purpose of the prohibition
- Other public policy considerations
- Proportionality of denying the claim
What is the nature of the defence of necessity?
Applicable where the defendant acted to save life, limb, or property.
What must a defendant prove to use the defence of necessity?
- Acting in an emergency to prevent harm
- Not at fault in causing the emergency
What does the emergency in necessity typically involve?
Preventing death or serious injury.
What happens if the emergency arose out of the defendant’s negligence?
The defendant cannot rely on the defence of necessity.
Provide an example case where necessity was successfully argued.
The captain of an oil tanker discharged oil to prevent the ship from sinking.
