Unit 3 - Defences and Remedies

Question 1

What two steps are required for contributory negligence to be proven?

Answer 1

1. The Claimant failed to take proper care.

2. This failure contributed to the damage they suffered.

Question 2

Case - showing that contributory negligence is dependent on circumstances

Answer 2

Gough v Thorns (1966) - crossing child

Question 3

What type of defence is contributory negligence?

Answer 3

Partial defence - losses will be apportioned between parties if proven.

Question 4

What is required for consent/volenti non fit injuria to be proven?

Answer 4

The Claimant must have freely and voluntarily agreed with the full knowledge of the circumstances in order to absolve the Defendant of legal responsibilities.

Question 5

What is required for “agreement” i/r/t the consent defence?

Answer 5

An express or implied agreement to accept legal and physical risks.

Question 6

Case - showing that “agreement” does not include lack of care i/r/t consent defence

Answer 6

Smith v Charles Baker and Sons (1891) - steam crane

Question 7

What is required for “knowledge” i/r/t the consent defence?

Answer 7

Knowledge of the full nature and extent of the risks that were run

Question 8

Case - example of “knowledge” i/r/t the consent defence?

Answer 8

Morris v Murray (1991) - drunk plane

Question 9

Case - showing that rescuers do not consent i/r/t the context of volenti non fit injuria

Answer 9

Haynes v Harwood (1935) - police horse

Question 10

Case - showing that sportspeople consent to only the ordinary risks associated with the sport

Answer 10

Condon v Basi (1985) - bad tackle

Question 11

What is the relationship between the consent defence and the Occupiers Liability Act 1957/Occupiers Liability Act 1984?

Answer 11

Occupiers owe no duty for risks freely accepted, with no need to establish an agreement.

Question 12

What are the four defences to the tort of nuisance?

Answer 12

1. Ordinary use of land
2. Statutory authority
3. Act of God
4. Prescription

Question 13

Case - example of “ordinary use of land” defence to tort of nuisance

Answer 13

Southwark London Borough Council v Mills (2001) - non-noisy neighbors

Question 14

Case - example of “statutory authority” defence to tort of nuisance

Answer 14

Allen v Gulf Oil Refining Ltd (1981) - loud oil

Question 15

Case - example of “act of God” defence to tort of nuisance

Answer 15

Nicholls v Marsland (1875) - reservoir rainstorm

Question 16

Case - example of “prescription” defence to tort of nuisance

Answer 16

Coventry v Lawrence (2014) - stock car racing

Question 17

What are the four defences to the tort of Rylands v Fletcher?

Answer 17

1. Act of stranger
2. Act of God
3. Statutory authority
4. Consent/benefit

Question 18

Case - example of “act of stranger” defence to tort of Rylands v Fletcher

Answer 18

Perry v Kendricks Transport Ltd (1956) - coach explosion

Question 19

Case - example of “act of God” defence to tort of Rylands v Fletcher

Answer 19

Carstairs v Taylor (1871) - rat rain

Question 20

Case - example of “statutory authority” defence to tort of Rylands v Fletcher

Answer 20

Green v Chelsea Waterworks Co (1894) - mains burst

Question 21

Case - example of “consent/benefit” defence to tort of Rylands v Fletcher

Answer 21

Peters v Prince of Wales Theatre (1943) - sprinklers burst

Question 22

What are compensatory damages?

Answer 22

Damages intended to restore the Claimant to their previous state.

Question 23

What are the two “heads of damage”, and how do they differ?

Answer 23

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.

Question 24

What are interim and periodical payments?

Answer 24

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.

Question 25

What are nominal, contemptuous and aggravated damages?

Answer 25

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.

Question 26

What are the three types of injunction, and how do they differ?

Answer 26

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.

Question 27

Case - partial injunction awarded due to public benefit

Answer 27

Miller v Jackson - cricket grounds