Chapter 6 - Defences

Question 1

What is the aim of a defence?

Answer 1

To reduce or eliminate liability.

Question 2

What are the two common law defences?

Answer 2

1. Ex turpi causa non oritur actio

2. Volenti non fit injuria

Question 3

What is an ex turpi causa non oritur action defence?

Answer 3

It means that no legal action can arise from a blameworthy cause; a claimant cannot claim damages if their injury has arisen from their own illegal act. It is a complete defence.

Question 4

What three key aspects will mean a claimant’s claim will fail on the ground of illegality (ex turpi causa defence)?

Answer 4

There must be a close connection between the claimant’s illegal act and the injury, damage must arise directly from the illegal act, must be against public policy to allow compensation.

Question 5

What is Clunis v Camden and Islington Health Authority a case law example of in relation to ex turpi causa?

Answer 5

That ex turpi causa can still be used as a defence where a claimant commits a criminal act BECAUSE OF the negligent act of the defendant

Question 6

What case law example shows that ex turpi causa applies to companies as well as individuals?

Answer 6

Stone and Rolls Ltd (in Liquidation) v Moore Stephens (a Firm)

Question 7

What is the inextricable link test used for in relation to ex turpi causa?

Answer 7

To show the criminal act is linked with the loss claimed.

Question 8

What case is an example of the use of the inextricable link test?

Answer 8

Gray v Thames Trains Ltd and Another (where there was a link so claimant was not awarded damages) / Allen v Hounga (where link was not strong enough so claimant was awarded damages)

Question 9

What is the defence of violenti non fit injuria?

Answer 9

That no injury can be done to a willing person, applies if defendant can show the claimant voluntarily consented in knowledge of risks. Complete defence.

Question 10

What is a case law example showing violenti could not be used as the claimant could not have sufficiently forseen the risks?

Answer 10

Stermer v Lawson

Question 11

Smith v Baker is a case law example of what general rule in relation to violenti?

Answer 11

That an employer cannot usually claim an employee consented as they have no choice - consent must be freely given.

Question 12

Does violenti apply in rescue situations and why?

Answer 12

No, because rescuers usually feel legally or morally obliged to rescue so do not consent to the risk of injury (Ward v T E Hopkins and Son Ltd; Baker and Another v T E Hopinks and Son Ltd)

Question 13

Does violenti apply to sports spectators and give supporting case law

Answer 13

Yes as they are regarded as consenting to the risks of watching that sport (Murray v Harringey Arena)

Question 14

What does s149 of the Road Traffic Act provide for in relation to violenti?

Answer 14

That violenti cannot be used against passengers as a driver can’t exclude liability to a passenger by agreement

Question 15

What is contributory negligence?

Answer 15

A partial defence which a defendant can claim if the claimant partly caused or increased the def’s negligence. Under Law Reform (Contributory Negligence) Act 1945 this reduces the damages paid by the def

Question 16

What are the three ways contributory negligence can occur?

Answer 16

1 - claimant is partly to blame for an accident
2 - claimant puts self in dangerous position
3 - claimant’s failure to take reasonable care for their own safety increases the risk of injury

Question 17

Davies v Swan Motor Co (Swansea) Ltd is an example of what contributory negligence?

Answer 17

The claimant putting themselves in a dangerous position

Question 18

What are the four circumstances in which the courts are reluctant to award contributory negligence?

Answer 18

1 - claimant is a child
2 - claimant is an employee
3 - claimant is a rescuer
4 - dilemma principle

Question 19

Why are courts reluctant to award contrib when the claimant is an employee

Answer 19

Because employers have a duty to keep employees safe even if they are careless. However this does not apply if they refuse to wear safety clothing provided.

Question 20

What is a case law example of when the court did award contrib when the claimant was a rescuer?

Answer 20

Harrison v British Railways Board - guard held contrib neg for not applying brake when rescuing passenger

Question 21

What is the dilemma principle? Give case law.

Answer 21

Court accepts claimant was in a difficult position (Sayers v Harlow Urban District Council)

Question 22

When does contributory negligence not apply?

Answer 22

If the contribution is foreseeable to someone owing a duty of care to the claimant (George v Home Office)

Question 23

What is the usual limitation period for tort claims?

Answer 23

6 years from the date of the claimant’s cause of actin arising (either date of wrongdoing or date of damage) under LA 1980

Question 24

When does the limitation period start for an infant?

Answer 24

Upon turning 18

Question 25

When does the limitation period start for people with permanent brain damage and what is a case law example?

Answer 25

After death as per Maga v Roman Catholic Archdiocese of Birmingham

Question 26

What is the personal injury exception to the six year limitation period rule?

Answer 26

Personal injury claims have a three year limitation period, from whichever is later from date of wrongdoing, injury or date of knowledge of injury (knowing they had a claim)

Question 27

What is Halford v Brookes and Another an example of in relation to limitation periods?

Answer 27

A personal injury claim made within three years of the date of the claimant’s knowledge, which therefore was not statute barred

Question 28

How does the death of a claimant effect the limitation period in p.i claims?

Answer 28

If the death was a result of defendant’s action then the 3 year period restarts from date of death or the date the PRs knew of the claim (whichever is latest)

Question 29

What is latent damage?

Answer 29

Damage not apparent (such as damage to house foundations)

Question 30

What did the Latent Damage Act 1986 add to LA 1980?

Answer 30

That the claimant has whichever is longer of 6 years from date of latent damage or 3 years from date of discovery/date ought to have discovered

Question 31

Where an exclusion or limitation clause affects consumers, what is it subject to?

Answer 31

Consumer Rights Act 2015

Question 32

Where an exclusion or limitation clause affects businesses, what is it subject to?

Answer 32

Unfair Contract Terms Act 1977

Question 33

What three key rules about limitation/exclusion clauses are given under the Unfair Contract Terms Act 1977 and/or Consumer Rights Act 2015

Answer 33

• trader cannot exclude or restrict liability for death or p.i. arising from negligence (s65 CRA/s2(1) UCTA)
• consumer not bound by limiting term if it is unfair (s62 CRA)
• it should be fair and reasonable to rely on term regarding all circumstances (reasonableness test) (s11 UCTA)