Tort: Defences Flashcards

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1
Q

What are the two exceptions to the civil burden of proof?

A

If the defendant has been convicted of a criminal offence based on the same event, the claimants case in negligence is satisfied.

The accident causing the damage was under control of the defendant.

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2
Q

What does “res ispa loquitur” mean?

A

The thing speaks for itself: the damage would not have happened unless someone had been negligent.

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3
Q

What is an example case where “res ispa loquitur” is applied?

A

Scott V London and St Katherines docks 1865: the court held that the defendant was in control of the situation and therefore was liable.

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4
Q

What happens when the claimant can show the two exceptions to the civil burden of proof?

A

The burden of proof shifts to the defendant, who must prove that they were not negligent.

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5
Q

What are the two main defences which can be raised by the defendant in a negligence claim?

A

An allegation that the claimant contributed to the injuries.

An allegation that the claimant has consented to accept a risk of harm.

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6
Q

What does the contributory negligence Act 1945 provide?

A

It reduces the damages were awarded to the claimant according to the extent to which the claimant had contributed to their own harm.

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7
Q

How is the amount of damage is reduced?

A

The judge decides the percentage that the claimant is responsible, then reduces the amount by this percentage.

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8
Q

What is an example case where the percentage of damages is reduced?

A

Sayers V Hollow Urban District Council, 1958: the court held that the local council was liable, but the damages were reduced by 25% because of the way she tried.

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9
Q

What is consent (Volenti)?

A

When the claimant accepts a voluntary assumption of the risk of harm and nature of harm.

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10
Q

What does the defendant need to show in order to succeed?

A

Knowledge of the precise risk involved.

Exercise of free choice by the claimant.

A voluntary acceptance of the risk.

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11
Q

When is volenti not available as a defence?

A

Where a person has a duty to act and is injured because of the defendant’s negligence.

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