Unit 3 - Defences and Remedies Flashcards
What two steps are required for contributory negligence to be proven?
- The Claimant failed to take proper care.
2. This failure contributed to the damage they suffered.
Case - showing that contributory negligence is dependent on circumstances
Gough v Thorns (1966) - crossing child
What type of defence is contributory negligence?
Partial defence - losses will be apportioned between parties if proven.
What is required for consent/volenti non fit injuria to be proven?
The Claimant must have freely and voluntarily agreed with the full knowledge of the circumstances in order to absolve the Defendant of legal responsibilities.
What is required for “agreement” i/r/t the consent defence?
An express or implied agreement to accept legal and physical risks.
Case - showing that “agreement” does not include lack of care i/r/t consent defence
Smith v Charles Baker and Sons (1891) - steam crane
What is required for “knowledge” i/r/t the consent defence?
Knowledge of the full nature and extent of the risks that were run
Case - example of “knowledge” i/r/t the consent defence?
Morris v Murray (1991) - drunk plane
Case - showing that rescuers do not consent i/r/t the context of volenti non fit injuria
Haynes v Harwood (1935) - police horse
Case - showing that sportspeople consent to only the ordinary risks associated with the sport
Condon v Basi (1985) - bad tackle
What is the relationship between the consent defence and the Occupiers Liability Act 1957/Occupiers Liability Act 1984?
Occupiers owe no duty for risks freely accepted, with no need to establish an agreement.
What are the four defences to the tort of nuisance?
- Ordinary use of land
- Statutory authority
- Act of God
- Prescription
Case - example of “ordinary use of land” defence to tort of nuisance
Southwark London Borough Council v Mills (2001) - non-noisy neighbors
Case - example of “statutory authority” defence to tort of nuisance
Allen v Gulf Oil Refining Ltd (1981) - loud oil
Case - example of “act of God” defence to tort of nuisance
Nicholls v Marsland (1875) - reservoir rainstorm
Case - example of “prescription” defence to tort of nuisance
Coventry v Lawrence (2014) - stock car racing
What are the four defences to the tort of Rylands v Fletcher?
- Act of stranger
- Act of God
- Statutory authority
- Consent/benefit
Case - example of “act of stranger” defence to tort of Rylands v Fletcher
Perry v Kendricks Transport Ltd (1956) - coach explosion
Case - example of “act of God” defence to tort of Rylands v Fletcher
Carstairs v Taylor (1871) - rat rain
Case - example of “statutory authority” defence to tort of Rylands v Fletcher
Green v Chelsea Waterworks Co (1894) - mains burst
Case - example of “consent/benefit” defence to tort of Rylands v Fletcher
Peters v Prince of Wales Theatre (1943) - sprinklers burst
What are compensatory damages?
Damages intended to restore the Claimant to their previous state.
What are the two “heads of damage”, and how do they differ?
General and special damages. General damages are awarded for pain and suffering, loss of amenity, future loss and specific injury and tend to be more generalised. Special damages are awarded for medical expenses or loss of earnings and can be calculated accurately.
What are interim and periodical payments?
Interim payments are those made pre-judgment by the Court to protect the Defendant. Periodical payments are payments made on certain intervals to the Defendant.
What are nominal, contemptuous and aggravated damages?
Nominal - payments awarded if there has been no financial loss
Contemptuous - awarded if the Claimant has behaved reprehensibly and the Court believes the claim should not have been brought.
Aggravated - awarded if injury to the Claimant has been exacerbated by the Defendant’s conduct.
What are the three types of injunction, and how do they differ?
Prohibitory - prohibits the Defendant from doing the tort, usually used for nuisance.
Mandatory - compels the Defendant to perform a task, usually used to rectify damage.
Partial - limits the Defendant’s activities, but does not prohibit them. Usually used if the activity has some public benefit.
Case - partial injunction awarded due to public benefit
Miller v Jackson - cricket grounds
