Tort Defences Flashcards
3 part test for negligence claim
Duty of care
Breach of duty
D caused damage
Defences
defence in tort
it can mean that D is not liable or damages may be reduced
two defences in tort law
Contributory negligence
Consent
what is contributory negligence?
The Law Reform Act 1945: any damages awarded to the claimant can be reduced proportionately if it can be proven that C contributed to their own harm.
happens when both C and D are responsible for the injury suffered by C.
partial defence (not a way to escape liability completely)
remedy for contributory negligence
Compensation
judge sets out the full amount for compensation
if contributory negligence is proven, the judge decides what percentage C is responsible and then reduces the amount by that percentage
Sayers v Harlow Urban District Council
facts: child fell into an excavation on a building site owned by the council
held: contributory negligence was considered, but court ruled in favor of the child due to duty of care.
Jayes v IMI (Kynoch) Ltd
(where 100% reduction might be appropriate)
facts: C cut their finger off on a machine
held: employer was liable for breach of health and safety rules but C was 100% contributorily negligent as he admitted fault.
O’Connell v Jackson (damages might be reduced when C doesn’t wear safety equipment)
facts: The plaintiff, thrown over handlebars, suffered a head injury.
held: no contributory negligence as D’s medical witness recognized a helmet could have lessened the severity.
Froom v Butcher (damages might be reduced when C doesn’t wear safety equipment)
facts: the plaintiff, injured in a car accident, wasn’t wearing a seatbelt.
held: court reduced damages, stating contributory negligence due to not using a seatbelt. this deduction applies only to injuries preventable by wearing one.
Stinton v Stinton (damages might be reduced when C doesn’t wear safety equipment)
facts: brothers drank until early morning, C intended to be driven home by his brother, had a car accident.
held: damages not reduced as C knew brother wasn’t fit to drive and didn’t wear seatbelt.
what is consent (volenti)?
‘no injury is willing’,
or ‘to one who volunteers, no harm is done’
when the claimant accepts the risk of harm there can be no damages.
consent (volenti) defence requirements
Knowledge of the precise risk involved
Exercise free choice by C
Voluntary acceptance of the risk
