Tort Law - Defences Flashcards
CONSENT
1. Is this a full defence?
2. What are the requirements needed to make a defence of consent?
- C had capacity to consent to the risks (Reeves v MPC - suicidal prisoner; children unlikely consent to risks)
- C have FULL awareness of the nature and extent of the risks involved - general knowledge is NOT sufficient
- C agrees to run the risk of injury (express or implied)
- C’s consent to the risks was voluntary
Which party would seek to rely on the defence of consent?
The Defendant would seek to rely on the defence of consent.
Is consent a full defence?
Yes, consent is a full defence (D will not be liable if he relies on it successfully).
Is the defence of consent judged objectively or subjectively?
Consent is assessed subjectively - what did the Claimant perceive the risks to be at the time?
Can you establish a defence of consent in negligence claims between Employer and Employee?
Potentially, but it would be very difficult because it is very hard to argue that an employee VOLUNTARILY consents to risks in the course of employment.
Claimant’s intoxication will impact his ability to have full awareness of the nature and extent of the risks - TRUE or FALSE?
This is true - in Morris v Murray, a drunk Claimant got into a plane with a drunk driver. The court found that C was drunk but not drunk enough to prevent him being fully aware of the risks and able to voluntarily choose to get into the plane.
Is knowledge of the extent and nature of the injury the same as agreeing to run the risk?
These are different requirements.
For example: Dann v Hamilton - C got into a car with a drunk driver. The driver negligently got into a car accident and harmed C.
Whilst C fully appreciated the risk of driving with a drunk D, C did not agree to run the risk or waive her rights - either explicitly or implicitly.
Where C engages in an obviously and intrinsically dangerous activity with a high risk of injury (e.g. meddling with a bomb, walking on the edge of a cliff), it will be far easier to argue that C agreed (implicitly) to run the risk of injury.
In Morris v Murray: (1) all other flights had been called off due to weather conditions; (2) C and D were getting drunk together beforehand; (3) C helped D in setting up the plane. In this case, the risk of harm was so glaringly obvious that C effectively agreed to running the risk of injury.
If the D seeks to avoid liability by relying on C’s consent, some statutes will prevent D from doing this.
- What are these 3 situations?
Road Traffic Act - motorists / bus drivers cannot rely on the fact that passengers accepted a lift as indications of consent. In other word, the estates of the dead driver cannot argue that the passenger’s consented.
Unfair Contract Terms Act - if C accepts a contract term (e.g. in the course of business), this does not - by itself - suggest that C is undertaking a voluntary risk.
Consumer Rights Act - Traders cannot, when dealing with consumers, use contract terms which seek to exclude liability for death or personal injury through negligence.
Contributory Negligence:
- is it a full defence?
- what is the standard of proof?
- What are the requirements to succeed in contributory negligence?
- What standard of care should C take?
Contributory negligence is a partial defence. D needs to prove on the balance of probabilities that:
(1) C failed to take reasonable steps for their own safety, and
(2) C’s failure contributed to C’s harm.
C is required to take the same degree of care as a “reasonable and prudent person” [objective standard].
What are some examples of contributory negligence that you can think of?
C got in D’s car as a passenger knowing that D was drunk.
C got stuck in D’s toilet cubicle. Trying to escape, she put her weight on a toilet roll holder, and this, was an unreasonable step to take because of the weight being placed on a small, fragile item. C fell and her damages were reduced by 25%.
Contributory Negligence:
- Do emergency situations affect contributory negligence?
- Is C’s age relevant to the degree of care that C should take?
In emergency situations, Claimants are given greater leeway. In the runaway horse & cart case, it was a reasonable step for C to jump out of the cart (thus injuring himself), because he feared great harm. In this case, there was no contributory negligence.
Yes, age is a relevant factor (Gough v Thorne - traffic case, no contributory negligence by the child).
C can still be found liable for contributory negligence if she, for example, did not take reasonable steps for her own safety that a reasonable and prudent 13-year-old girl would take.
Contributory Negligence - what is the legal position re:
- Rescuers
- Nature of the Duty (giving D notice of C’s vulnerability)
Rescuers tend to be protected from contributory negligence. For example, it is reasonably foreseeable for D that putting a victim in danger will incur rescuers to try and intervene (Baker v T.E. Hopkins).
Nature of duty can affect likelihood of contributory negligence. (In this case, C did not contribute to his harm. C was a prisoner who made D aware of his vulnerability (seizures due to addiction withdrawal) and the prison failed to look after him - St George v Home Office).
Who determines the reduction in damages for contributory negligence, and on what basis is the calculation made?
The court is able - but not required - to reduce C’s damages but whatever amount is “just and equitable”, if D proves contributory negligence.
DEFENCE OF ILLEGALITY
- What are the requirements to succeed in an illegality defence [3-steps]?
- What are other relevant factors that the court will consider?
- Is this a full defence?
Illegality is a full defence:
A. Did D commit an illegal (or grossly immoral) act?
B. Consider the Patel v Mirza test, but also previous case law if based on materially similar facts:
1. What is the legal policy behind the law that was broken, and will this policy/purpose be upheld by denying C’s claim?
2. Are there other legal policies which will be impacted by the denial of C’s claim?
- Would allowing C to recover damages produce inconsistency or disharmony in the law or damage integrity of legal system?
3. Will denying C’s claim be proportionate to the illegal act?
Example of relevant factors:
(1) was C’s illegality actually closely connected to the tort? [EG: C transporting weed was incidental to the road accident. In this case, transporting drugs did not CAUSE his injuries]
(2) the seriousness of C’s conduct.
(3) was C’s illegality intentional?
(4) was there a big difference between C and D’s culpability/blameworthiness?
(5) Would award C damages be inconsistent with a criminal sanctions already imposed on C? [Gray v Thames Trains]
EG: C was mentally ill and killed his mother. He tried suing the local health authority for losses her suffered as a result of killing his mother, including loss of liberty and loss of inheritance (Henderson, 2020). The court found a successful illegality defence and emphasised the need for consistency between criminal law and tort law, meaning C’s claim had to fail.
EG: The most obvious cases are where C’s loss/harm is caused by C’s illegality. It is manifestly wrong to award C for their own illegal acts.
DEFENCE OF NECESSITY
- What elements are required?
- Who relies on his defence?
Necessity - full defence - relied on by D, if:
- D thought that he was acting in an emergency to prevent harm to the C, Third Party or D himself [subjective view of risk to life]
- This includes harm to life, limb or property.
- D must not have been the cause of the emergency, e.g. through his own negligence.
- D must have acted REASONABLY
EG: To prevent a ship from sinking and killing his crew and himself, D releases oil from the ship into the sea. In this situation, D had acted reasonably (saving lives of his crew) and the defence of illegality was successful.
