defences

Question 1

contributory negligence

Answer 1

statutory defence
fault- C must have been partly at fault
Causation- between C’s CN and the injury
Apportionment
Reduction

Question 2

CN #1: fault

Answer 2

C must have been partly at fault
any characteristics relevant to a regular negligence evaluation (e.g. children- Ellis v Kelly; emergency circumstances- Baker v TE Hopkins)
Fitzgerald v Lane: identify how C has been careless, e.g. crossing at a red light

Question 3

CN #2: causation

Answer 3

not explicit in the statute but implied by law- causal link between the CN and the injury
Froom v Butcher: cause the injury, not the accident (e.g. not wearing a seatbelt)
Beasley v Alexander: causation fails if the injury would have happened regardless

Question 4

CN #3: apportionment

Answer 4

Jackson v Murray: court has the relative culpability of the parties in mind

Question 5

CN #4: reduction

Answer 5

One which is ‘just and equitable’, no de minimis principle
Froom v Butcher: set by precedent, failure to wear a seatbelt is typically between 15-25%, NOT to be more than 25%

Question 6

Volenti

Answer 6

Reeves v Commissioner of Police for Metropolis: “the whole blame for the claimant’s death must rest on the claimant’s shoulders”
Appreciation
Consent
Preserve the duty
Exceptions

Question 7

Volenti #1: appreciation

Answer 7

C was in a position to know of and appreciate the risk of injury posed by D’s activities
Morris v Murray: in the case of a drunk it would be an objective appreciation of the risk- which C would have (objectively) been able to do, knowing full well that D was drunk

Question 8

Volenti #2: consent

Answer 8

To the specific risk, either expressly or impliedly
Morris v Murray: implied consent because bro went into the aircraft, he also drove them to the airfield which shows voluntarily consent

Question 9

Volenti #3: preserve the duty

Answer 9

defence, if successful, cannot have the effect of destroying the content of the duty owed by D to C
Morris v Murray: duty D owed to C was to exercise reasonable care in flying the plane, not to stop C from getting into the plane in the first place

Question 10

Volenti #4: exceptions

Answer 10

should not be barred by law
s 149 Road Traffic Act 1988: volenti not to be pleaded in traffic accidents
Baker v TE Hopkins & Son Ltd: would be repugnant to public policy for the defence of volenti to be asserted against a rescuer

Question 11

Therapeutic privilege

Answer 11

Applies only to failure to warn cases
disclosure to the patient would be foreseeably adverse or damaging
disclosure would harm the patient’s health (psychologically, physically)
the doctor’s decision not to disclose was reasonable and in the patient’s best interests- will require Bolom evidence
Sidaway v Board of Governors of the Bethlem Royal Hospital: failure to comply with duty to warn can be defended by doctor saying they really believed the information would be psychologically damaging to them
Montgomery v Lanarkshire Health Board: SC endorsed the existence of the defence