Chapt 6 Defences from spec

Question 1

What is the function of defences in a negligence claim?

Answer 1

To reduce or eliminate the Ds liability for the damage suffered by the claimant

Full defences defeat entire action whereas partial defences reduce damages

Question 2

What are the 2 most important common law defences?

Answer 2

Ex turpi causa non oritur actio
- no legal action (damages) can result from a blameworthy cause.
Prevent person claiming if he is involved in a crim act at time he is injured. Also applied to prevent damages when they have claimed that others neg has caused them to commit crimes
- it is a complete defence
Clunis v CamdenAHA/ Gray V Thames trains

Volenti non fit injura
-“no injury can be done to a willing person”
-it is a complete defence
Stermer v Lawson 1958

Question 3

What are the 3 most important statutory defences?

Answer 3

Contributory negligence
- Law Reform (cont negligence) Act 1945 Partial
Sayers v Harlow 1958

Limitation
- Limitation Act 1980- s2 and 11(4) - date of knowledge & 14 for PI(meaning of date of knowledge ) Complete

Exclusion clauses
- Unfair Contract Terms Act 1977- s2(1) s2(2)
Consumer Rights Act 2015
Complete?

Question 4

Explain the defence of consent (volenti non fit injura)

Which case?

Effect of s149 RTA 1998?

Answer 4

Common law/ complete. “No injury can be done to a willing person”

Relevant case law: eg: Stermer v Lawson (1977)
Murray v harringay arena
Effect of s.149 Road Traffic Act 1988- excludes reliance on volenti defence in relation to RTA passenger claims

Question 5

Explain the defence of ex turpi causa non oritur actio

Which case?

Answer 5

Complete common law defence. Prevent person claiming if he is involved in a crim act at time he is injured. Also applied to prevent damages when they have claimed that others neg has caused them to commit crimes

Relevant case law
Clunis v Camden and Islington HA (1998),

Question 6

What is the inextricable link test?

Which case?

Answer 6

Relating to ex turpi causa non oritur actio

Pol- policy that a person should not be compensated for their own criminal conduct
“Hard to think of a more inextricable link”(between the crash and the stabbing)

the defence may be defeated if it is inextricably linked to the cause of action.

Case- Gray v Thames Trains 2009

Question 7

Case example for contrib neg

Which statute?

Answer 7

Law reform(Cont Negligence) Act 1945.

case law: Sayers v Harlow UDC (1958)
- dilemma principle
Fitzgerald v lane -stepped out in front of a car

Question 8

Define contributory negligence

Answer 8

This is a partial stat defence under the Law Reform (cont neg) Act 1945.

It’s effect is to reduce the damages payable by the D if the damage was partly caused or increased by the negligence of the C

Sayers v Harlow UDC 1958/ Fitzgerald and lane

Test=was C partly to blame?
If so, calculate damages in full then ⬇️by %amount c deemed to be at fault

Question 9

Situations where court unlikely to find contrib negligence

5

Answer 9

Gannon v Rotherham MBC (1991), - children

Baker v Hopkins -rescuers.

Sayers v Harlow UDC 1958- “dilemmaprinciple”

Also, employees!!!- no CN of doing their jobs properly

George v Home Office (2008)The defence of contributory negligence failed. The claimant’s addictions were not the cause of his injury.

Question 10

What is the nature and purpose of limitation periods?

Answer 10

A claim will be statute barred if the specified time had expired

Question 11

What is the limitation act 1980?

Answer 11

An Act to limit claims after a certain period of time.

Complete statutory defence
Usually 6 years but 3 for PI, death of c or latent damage, from cause of action (act, injury or c being aware of injury)- s11(4) LA- date of knowledge
S14 “date of knowledge”means that you’re aware of the possibility, the D and that it was caused by D

Limitation periods in general Covered by s2 LA 1980

Question 12

What are the general limitation periods in tort?

Covered by which sections?

Answer 12

Usually 6 years but 3 for PI, death of c or latent damage, from cause of action (act, injury or c being aware of injury)- s11(4) LA- date of knowledge
S14 “date of knowledge”means that you’re aware of the possibility, the D and that it was caused by D

Limitation periods in general Covered by s2 LA 1980

Question 13

Limitation periods in tort “date of knowledge”

2 sections

Answer 13

S14 of the LA 1980 relates to PI claims.

It defines date of knowledge as the date when the c first knew that the injury was SIGNIFICANT and that it was CAUSED BY The Ds ACTIONS and is ABLE TO IDENTIFY who the D is

11(4) is date of knowledge and s14 defines date of knowledge

Haward and others v Fawcetts and another 2006

Question 14

Limitation periods in tort

Death of claimant

What section?

Answer 14

S11(5) LA 1980

If there is a death following a tort, a fresh 3 yr period begins at the date of death . Cs representatives can claim

Question 15

Latent Damage Act 1986

Which section?

Answer 15

Latent damage act 1986 inserted s14a and 14b into LA 1980

C gets the longer of 6 years after damage done
3 years after it had been discovered (or should have been)

Latent damage is subject to a 15 year “long stop”

Question 16

The use of exclusion and limitation clauses in actions in negligence

Answer 16

S2 Unfair contract terms act 1977

• it is impossible for anyone to restrict/exclude liability for PI or death caused by his negligence s2(1) UCTA 1977
  AND
  -any clauses excluding/restricting liability for other kinds of loss/damage are not bi ding if unreasonable s2(2) UCTA 1977

S11(1)- reasonableness defined as what should have been known to the parties

Question 17

Limitation periods for children

Answer 17

Children have until they are 24

-s38(2) LA

Question 18

Limitation periods where there is a disability

Answer 18

S28(1) LA 1980

Have 6 years from end of disability or death

(Maga v RC diocesan trust?)

Question 19

Cont neg examples and types

Answer 19

C is partly to blame (Fitzgerald and lane)

Puts self in dangerous position (Davies v swan)

Failed to take proper care of self, ⬆️risk of harm (froom v butcher)