Chapter 6 - Defences Flashcards

1
Q

What is the aim of a defence?

A

To reduce or eliminate liability.

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2
Q

What are the two common law defences?

A
  1. Ex turpi causa non oritur actio

2. Volenti non fit injuria

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3
Q

What is an ex turpi causa non oritur action defence?

A

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.

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4
Q

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

A

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.

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5
Q

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

A

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

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6
Q

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

A

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

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7
Q

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

A

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

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8
Q

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

A

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)

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9
Q

What is the defence of violenti non fit injuria?

A

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.

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10
Q

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

A

Stermer v Lawson

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11
Q

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

A

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

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12
Q

Does violenti apply in rescue situations and why?

A

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)

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13
Q

Does violenti apply to sports spectators and give supporting case law

A

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

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14
Q

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

A

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

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15
Q

What is contributory negligence?

A

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

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16
Q

What are the three ways contributory negligence can occur?

A

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

17
Q

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

A

The claimant putting themselves in a dangerous position

18
Q

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

A

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

19
Q

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

A

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.

20
Q

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

A

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

21
Q

What is the dilemma principle? Give case law.

A

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

22
Q

When does contributory negligence not apply?

A

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

23
Q

What is the usual limitation period for tort claims?

A

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

24
Q

When does the limitation period start for an infant?

A

Upon turning 18

25
Q

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

A

After death as per Maga v Roman Catholic Archdiocese of Birmingham

26
Q

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

A

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)

27
Q

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

A

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

28
Q

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

A

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)

29
Q

What is latent damage?

A

Damage not apparent (such as damage to house foundations)

30
Q

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

A

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

31
Q

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

A

Consumer Rights Act 2015

32
Q

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

A

Unfair Contract Terms Act 1977

33
Q

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

A
  • 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)