Tort: Defences Flashcards
What are the two exceptions to the civil burden of proof?
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.
What does “res ispa loquitur” mean?
The thing speaks for itself: the damage would not have happened unless someone had been negligent.
What is an example case where “res ispa loquitur” is applied?
Scott V London and St Katherines docks 1865: the court held that the defendant was in control of the situation and therefore was liable.
What happens when the claimant can show the two exceptions to the civil burden of proof?
The burden of proof shifts to the defendant, who must prove that they were not negligent.
What are the two main defences which can be raised by the defendant in a negligence claim?
An allegation that the claimant contributed to the injuries.
An allegation that the claimant has consented to accept a risk of harm.
What does the contributory negligence Act 1945 provide?
It reduces the damages were awarded to the claimant according to the extent to which the claimant had contributed to their own harm.
How is the amount of damage is reduced?
The judge decides the percentage that the claimant is responsible, then reduces the amount by this percentage.
What is an example case where the percentage of damages is reduced?
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.
What is consent (Volenti)?
When the claimant accepts a voluntary assumption of the risk of harm and nature of harm.
What does the defendant need to show in order to succeed?
Knowledge of the precise risk involved.
Exercise of free choice by the claimant.
A voluntary acceptance of the risk.
When is volenti not available as a defence?
Where a person has a duty to act and is injured because of the defendant’s negligence.
