Chapter 6 - Defences Flashcards
What is the aim of a defence?
To reduce or eliminate liability.
What are the two common law defences?
- Ex turpi causa non oritur actio
2. Volenti non fit injuria
What is an ex turpi causa non oritur action defence?
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.
What three key aspects will mean a claimant’s claim will fail on the ground of illegality (ex turpi causa defence)?
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.
What is Clunis v Camden and Islington Health Authority a case law example of in relation to ex turpi causa?
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
What case law example shows that ex turpi causa applies to companies as well as individuals?
Stone and Rolls Ltd (in Liquidation) v Moore Stephens (a Firm)
What is the inextricable link test used for in relation to ex turpi causa?
To show the criminal act is linked with the loss claimed.
What case is an example of the use of the inextricable link test?
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)
What is the defence of violenti non fit injuria?
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.
What is a case law example showing violenti could not be used as the claimant could not have sufficiently forseen the risks?
Stermer v Lawson
Smith v Baker is a case law example of what general rule in relation to violenti?
That an employer cannot usually claim an employee consented as they have no choice - consent must be freely given.
Does violenti apply in rescue situations and why?
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)
Does violenti apply to sports spectators and give supporting case law
Yes as they are regarded as consenting to the risks of watching that sport (Murray v Harringey Arena)
What does s149 of the Road Traffic Act provide for in relation to violenti?
That violenti cannot be used against passengers as a driver can’t exclude liability to a passenger by agreement
What is contributory negligence?
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