Chapt 6 tort from spec

Question 1

Defences to a claim of negligence

Answer 1

Common law
Ex turpi causa non oritur actio
- complete- Clunis
volenti non fit injura -complete- stermer v Lawson

Statutory
Contributory negligence - Law Reform (cont neg)Act 1945- partial (Sayers v Harlow UDC)
Limitation Act 1980- complete
UCTA 1977 (exclusions) s2(1),s2(2)
Consumer Rights Act 2015 (exclusions)

Partial and complete

Question 2

Explain the effect of contributory negligence

Answer 2

Reduces the amount of damages payable by D as the claimant is partly responsible for the harm.

This defence is contained in the Law Reform (Contributory Negligence) Act 1945

Partial stat defence

Case law: Sayers 1958- dilemma principle- ❌cont neg

Davies and swan 1949- put himself in a dangerous position

Froom v butcher 1976- failed to wear seatbelt

Fitzgerald v lane- stepped out in front of car

Question 3

What is the function and nature of defences?

Answer 3

Reduce or eliminate the Ds liability for the damage

2 main common law defences
-volenti non fit injura
-Ex turpi causa non oritur actio 
4 main stat defences
-cont neg under Law Reform (cont neg) act 1945
-limitation act 1980
-UCTA 1977
- CRA 2015

Question 4

The 2 common law defences

Answer 4

Ex turpi causa non uritur actio
-prevent claim if claimant involved in crim act at time he is injured

Volenti non fit injura
- d can show that the claimant consented to the injury or risk of injury

Both are COMPLETE defences

Question 5

Limitations as a defence in tort (statutory)

Answer 5

Complete defence under LA1980
S2 LA 1980- 6 years, unless:

C is under a disability- 6 yrs from end dis/death - s28(1)- maga v RC
PI - 3 year period from date of knowledge/act/injury s11(4) LA - Haward v fawcetts S14 - “knew it was significant/caused/ identify tortfeasor”
Death after tort- fresh 3 yr period begins after death -s11(5)
Latent damage, which is subject to a 15 year “long stop”- s14a/b LA as amended

Question 6

Explain exclusion or limitation clauses

What can’t you exclude?

Which sections?

Answer 6

S2 LA 1980- 6 years

S62 and 65 CRA /s2UCTA 1977

• it is impossible for anyone to exclude/restrict liability for PI/death caused by his negligence S2(1) AND
• any clauses excluding or restricting liability for other kinds of loss or damage due to negligence aren’t binding if they are unfair- s2(2) (test for reasonableness is in s11 UCTA 1977 )

”

Question 7

Explain the function and nature of defences in tort

Answer 7

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

Full defences defeat entire action

Partial defences reduce damages

Question 8

Explain the defence of ex turpi causa

Answer 8

Common law and complete.
Prevent person claiming if he is involved in a criminal act at time he is injured. Also applied to prevent award of damages when they have claimed that others neg has caused them to commit crimes

Clunis v Camden and Islington 1998

Gray v Thames trains 2009 (“inextricable link test”)

Stephens and another

Question 9

Explain the defence of consent (volenti)

Answer 9

” no injury to willing person”

D must show that c knew of the risks to which his conduct exposed him. Common law and complete

• Sterner v Lawson 1977-knowledge of risk
• Smith v baker 1891 -exercise of free choice re risk
• Baker v Hopkins 1959-rescuers (if feel obliged, don’t consent)
• Murray v Harringay Arena 1951-spectators

Effect of s149 RTA 1988- volenti can’t be used against passengers travelling in vehicles

Question 10

Situations where the court is reluctant to find contrib neg

Answer 10

Children, employees, rescuers, dilemma principle

Case law-
gannon v Rotherham met BC 1991 (child)
Rescuers
Baker v Hopkins (c was a rescuer)/ Harrison v brb

Dorning v Personal Rep of Rigby 2007 / Sayers v Harlow (dilemma principle)

George v HO 2008- if a persons cont to his potential injuries are known to someone with a doc, the defence may not applyThe defence of contributory negligence failed. The claimant’s addictions were not the cause of his injury.

Question 11

Explain the use of limitations in time as a defence

What are the nature and purpose of limitation periods?

Answer 11

Nature and purpose of limitation periods

Generally 6 years (3 for PI).

A complete statutory defence under LA 1980

Question 12

What does the limitation act 1980 do

And what are the exceptions ?(4)

Answer 12

A complete statutory defence. In general, the limitation period fora tort is 6 years from the date on which the claimants course of action arose
(S2 LA)
Unless:
C is under a disability (maga)- 6 yrs from end of dis or death (s28(1))
3 years from date of knowledge for PI(s11(4) and s14)
Death following a tort, where a fresh 3 yr periods begins at date of death(s11(5)
Latent damage, which is subject to a 15 yr “long stop”(s14a/b lda into LA 1980)

Question 13

Relevant case law for limitation periods as a defence

2cases and 1 statute

Answer 13

Haward (date of knowledge)- s14 LA “when c knew enough to start investigating a claim

Maga v RC archdiocese 2010 (disability never statute barred)

Latent damage act 1986- damage which isn’t apparent. C has the longer of the normal 6 yr period , starting when damage done
AND
A 3yr period that begins when the C discovers or should have discovered the damage

Question 14

Which case for discretion in limitation periods ?

Backed up by which stat provision?

Answer 14

A v Hoare 2008
Sex abuse during childhood

Court could potentially extend the usual time limit of 24 under s33LA 1980. This gives discretion based on the reason for any delay