Tort Law - Defences in Tort

Question 1

What are the two defences available to all torts?

Answer 1

1. Contributory negligence

2. Volenti non fit injuria

Question 2

What is contributory negligence?

Answer 2

Contributory negligence is a defence which a defendant seeks to rely upon, claiming that in some way the claimant themselves contributed to the extent of harm or loss that they suffered by not acting in a reasonable manner

Question 3

What kind of defence is contributory negligence?

Answer 3

Contributory negligence used to be a complete defence, excusing the defendant of liability. Now it acts as a partial defence as where successfully proved it has the affect of reducing the amount of damages that the defendant will pay

Question 4

The current application of contributory negligence is contained within which statute? What does the statute say?

Answer 4

The Law Reform (Contributory Negligence) Act 1945
(1) Where any person suffers damage as the result partly of his own fault and partly of the fault of any other person, a claim in respect of that damage will not be defeated, but the damages recoverable shall be reduced to such extent as the court thinks just and equitable

Question 5

What kind of factors will be considered in apportioning blame in contributory negligence?

Answer 5

Factors such as age, experience and the situation of the two parties play a role in determining the apportionment of blame. Once blame is apportioned, the percentage representing the Claimants portion of blame will be deducted from the final compensation award

Question 6

Which case is an example of a complete reduction of damages due to the contributory negligence?

Answer 6

Jayes. The claimant was cleaning a machine at work but was strictly told to keep the guard on for safety reasons. The claimant took the guard off and injured himself. He successfully made a claim against his employers, however, the amount of damages that they had to pay were reduced by 100% to reflect the total fault of the claimant in removing the guard

Question 7

In which case did Lord Denning give guidelines on the reduction of damages in cases of car incidents?

Answer 7

Froom v Butcher.
Lord Denning said that if it is proved that there would have been damage even if the claimant was wearing a seatbelt there should be no reduction. If it is proved that the damage would have been prevented all together if the claimant was wearing a seatbelt there should be a 25% reduction. If it can be proved that the injuries would have even a lot less severe with a seatbelt there should be a 15% reduction.

Question 8

What is Volenti non fit injuria?

Answer 8

Volenti non fit injuria is a defence in tort law based upon consent of the victim to the risks of the act, the translation is ‘to a willing person, no injury is done’

Question 9

What are the three elements that must be proved for the complete defence of Volenti to operate?

Answer 9

1. The claimant had knowledge of the precise risk involved
2. Exercise of free choice by the claimant
3. A voluntary acceptance of the risk

Question 10

1. The claimant had knowledge of the precise risk involved: explain? Which case supports this?

Answer 10

The claimant must have full knowledge of the nature abs the extent of the risks involved. This doesn’t just mean that the claimant knows there is a risk but rather has knowledge of the specific risks.
Stermer v Lawson. The claimant borrowed the d motorbike, the d failed to show the claimant the full capabilities of the motorbike and how to use it, the result was the claimant was injured. The defence of Volenti failed because the claimant was not aware of the full extent of the risk

Question 11

2. Exercise of free choice by the claimant and 3. Voluntary acceptance of the risk: explain?

Answer 11

These elements require proof that the risk was freely accepted and voluntarily taken by the claimant. This element is particularly relevant where employees carry out take in the course of their employment, if the employee is coerced in anyway the defence will not succeed

Question 12

Which case supports that if the employee is coerced in anyway then the defence will not succeed?

Answer 12

Smith v Baker. The employee was told to work underneath a crane that was moving a large stone, despite complaining of the risk he was told to continue. He was then injured. The defence failed because the claimant had complained of the risk but was to continue so had only continued with the task out of fear of losing his job

Question 13

Which case shows when an employer is successful in the defence of Volenti?

Answer 13

Shatwell. The claimant chose to ignore the advice of his employer regarding the correct procedure, as a result he suffered injury. When making a claim against the employers the defence of Volenti was successful as by choosing to ignore the guidance he was voluntarily accepting the risk himself.

Question 14

What case held that the hospital is not required to talk patients through every possible remote side effect?

Answer 14

Sidaway v Governors of Hospitals. The claimant had an operation on her neck and suffered paraplegia following a complication. She made a claim against the hospital who sought to rely upon Volenti. The claimant disputed her consent as she was not told about the the less than 1% chance of this occurring. It was held that the defence was available, the hospital was not required to talk her through every possible remote side effect

Question 15

For reasons of policy the courts are reluctant to criticise the behaviours of who?

Answer 15

Rescuers

Question 16

A rescuer will not be considered Volenti if:

Answer 16

1. He was acting to rescue persons or property endangered by the defendants negligence;
2. He was acting under a compelling legal, social or moral duty; and
3. His conduct in all circumstances was reasonable and a natural consequence of the defendants negligence.