Defences

Question 1

Types of defences

Answer 1

1) consent - volenti non fit injuria - complete defence
2) contributory negligence - partial defence
D proves the defence on a balance of probabilities. Both defences can be argued even if they are contradictory.

Question 2

Consent - volenti

Answer 2

If proven, d is not liable and c recieves no damages. D must show that c:
1) had knowledge of precise risk involved
2) excersised free choice
3) voluntarily accepted the risk of injury due to c’s negligence

Question 3

Consent - knowledge of the precise risk - cases

Answer 3

Stermer v Lawson - volenti not avaliable
Sidaway v Governors of the Bethlem Royal and Maudsley Hospitals - in medical cases, consent doesn’t require a detailed explanation of remote side-effects, especially in rare cases with unlikely side effects.

Question 4

Consent - free choice

Answer 4

Employees who know of the risks of their jobs are not necessarily voluntarily running those risks, since they may have little real option if they wish to keep their job. It is therefore very difficult (although not impossible) to succeed with the defence of consent where c is an employee following instructions.

Question 5

Consent - free choice - case

Answer 5

Smith v Baker - defence was not avaliable, c had no choice but to continue work

Question 6

Consent - vol. accepted injury - cases

Answer 6

Haynes v Hardwood - under duty to protect the public, horse of violence and public nusiance
Ogwo v Taylor - unable to voluntary accept risks when acting in public safety
ICI v Shatwell - c vol. accepted risks, had a clear choice
Morris v Murray - the risk is so obvious that c impliedly consented to risks

Question 7

Consent - vol. accepted injury - sports

Answer 7

In sport, the courts have held that by willing enganging in sport, c vol agrees to the risks inheret in that sport but not to risks which are not inherent to the sport like serious foul play.

Question 8

Statutory limitations on the defence of consent

Answer 8

• s.149 Road Traffic Act 1998 - defence of consent can’t be used by motorists facing claim from passangers
• s.65 Consumer Rights Act - d cannot exclude or restrict liability for death or personal injuries resulting from negligence. Other types of loss may be excluded, subject to a test of reasonableness. Vol acceptance of risk cannot be assumed just because the consumer agreed/knew about contractual term

Question 9

Contributory negligence

Answer 9

Provided for in statute: s.1(1) Law Reform (Contributory Negligence) Act 1945
C’s damages are reduced by a % the court thinks just and equitable having regard to c’s share in responsability for the damage.
To use the defence, d must establish that:
1) c failed to take reasonable steps for their own safety
2) failure contributed to c’s damage

Question 10

Contributory negligence - c’s standard of care

Answer 10

C is required to take the same degree of care that a reasonable and prudent person would take (objective).

Question 11

Contributory negligence - c’s standard of care - cases

Answer 11

Owens v Brimmell - being drunk is not an excuse for failing to take resonable steps for own safety
Jones v Boyce - allowances are made for c who have been placed in an emergency or difficult dilemma
Gough v Thorne - a child will be contributory negligent if they fail to meet the standard of care appropiate for their age
Baker v T.E. Hopkins - rescuers are generally protected from contributory negligence

Question 12

Damages reduction - cases

Answer 12

Saywers v Harlow DC - toilet roll - 25%
Jayes v IMI - removes guard on own volition - 100%
O’Connell v Jackson - removed helmet - 15%
Froom v Butcher - not wearing seatbelt - 20%
Stinton v Stinton - c accepted lift from driver, knew he was drunk - 33%
Badger v MoD - smoking partly to blame for c’s death - 20%