Flashcards in Defences Deck (38):
Who must raise and prove defences?
The defendant, on the balance of probabilities.
Are defences mutually exclusive?
No it is possible to raise more than one in the same claim.
What are the elements fo violent?
Capacity to give valid consent
Knowledge of the risks
Agreement to the risk of injury
Agreement is voluntary
What class differs with respect to capacity to give valid consent in volenti?
children / mental health issues
Kirkham v Chief Constable fo Greater Manchester
Reeves v Commissioner of the Police for the Metropolis.
Cases on knowledge of the risk in volenti?
Morris v Murray: a subjective test - did the individual claimant have knowledge of the risk? - C had been drinking but not drunk enough not to appreciate the risk.
Agreeing to the risk cases?
Nettleship v Weston
Dann v Hamilton
Morris v Murray
Ratcliffe v McConnell
Sacco v Chief Constable of South Wales Constabulary.
Nettleship v Weston
knowledge of pupil being a learner driver did not mean the teacher consented to being injured. Especially since he inquired as to her insurance before agreeing to lessons.
Dann v Hamilton?
Can only impliedly agree to risk of injury provided the risk is so extreme it is equivalent to 'meddling with an unexploded bomb'.
On the facts, claimant getting into a car with a drunk driver did not consent as the driver was not drunk enough.
Morris v Murray?
Claimant impliedly consented to risk of injury when he got into a plane with a pilot with whom he had drunk 17 whiskeys.
Ratcliffe v McConnell?
Sacco v Chief Constable of South Wales Constabulary
drunken student dived into a swimming pool having not checked depth.
17-year-old claimant hit head having jumped from a police van. Drunken state did not negate defence of volenti.
Agreement in sports cases?
Hall v Brooklands Auto Racing Club
Smoldon v Whitworth
Condon v Basi
Agreement in employment context?
Smith v Charles Baker: worker did not consent to a crane dropping a stone on his head. May consent to risks inherent in on'e's job but not to injuries due to lack of care.
Condon v Basi?
consent failed where a foul tackle resulted in a broken leg. It amounted to a reckless disregard for the claimant's safety.
Smoldon v Whitworth?
Consent failed when scrum collapsed and claimant was injured. Referee was at fault for not enforcing scrum rules.
Hall v Brooklands Auto Racing Club?
spectators did not consent to car crashing through railings as the dangers were caused by negligence and not to the normal dangers of the sport.
Volenti in employment?
Bowater v Rowley Regis Corp: it is very rare for volenti to succeed in employment contexts.
ICI v Shatwell: volenti succeeded as employer had ensured shot firers were properly trained. They knew the risks of using short wires (equivalent to meddling with an unexploded bomb) and there was no evidence of coercion from the older onto the younger brother.
Baker v Hopkins?
Doctor advised not to go down well with poisonous fumes but did so to save others and died. As he was a rescuer volenti did not succeed even though he had capacity to give consent and knew of the risks.
He was acting under a 'compulsion' to save people - therefore not voluntary.
Haynes v Harwood: police officer tried to stop a bolting horse
Cutler v United Diaries: similar to above but horse had come to rest and posed no danger so claimant lost their claim.
Firemen and agreement?
Ogwo v Taylor: risk inherent in the firemen's job was not voluntary.
Johnstone v Bloomsbury: junior doctor claimed compensation for damage to health through working long hours. Had contractually agreed to do so (therefore volens was argued) but Court of Appeal suggested such terms, were subject to UCTA.
Pitts v Hunt?
Courts are reluctant to say criminals owe a duty to one another. No liability found and therefore no need for ex turnip when claimant rode pillion with defendant who was drunk and uninsured.
Vellino v Chief Constable of Greater Manchester?
Claim of a serial offender who had jumped from his window to evade arrest failed. Court would not recognise police as being under a duty to prevent the injury of someone they were arresting.
Ashton v Turner?
compensation denied to a passenger injured by his getaway driver as they had been involved in a burglary
For ex turpi to succeed what must the behaviour be like?
Marsh v Pauline clare : corruption and handling of stolen cars
Nayyar v Denton Wilde Sapte: payment of a civil law bribe was not a crime but morally reprehensible.
Kirkham v Chief Constable of Greater Manchester
Reeves v Commissioner of Police of the Metropolis
Cases on the claimant's activity being causally related to loss?
Sacco v Chief Constable of South Wales
Beaumont v Ferrer
Delaney v Pickett
Delaney v Pickett?
D and C involved with possession and intent to supply cannabis but cause of loss was negligent driving
Beaumont v Ferrer?
ex turpi appropriate as cause of boy being injured when taxi accelerated after their friends jumped put having not paid. He had jumped out and landed on his head.
Gray v Thames Trains?
Claimant contracted PTSD after a train crash. Personality changes caused him to stab a stranger. He tried to claim loss of income after being sent to a mental institute. Was held to be against public conscience to allow loss of earnings to be claimed for their own criminal acts.
Why is contributory negligence particularly useful?
an alternative to finding that the claimant's actions break the chain of causation. (e.g. Reeves v Commissioner of the Police for the Metropolis reduction of 50%).
what is the test for n and what cases sets it out?
1. did the claimant fail to take reasonable care of themselves
2. did the failure contribute to their loss.
3. was the injury within the type of risk run by the claimant
Jones v Livox
The claimant failed to take reasonable care fo themselves cases?
From v Butcher : not compulsory to wear seatbelt but safer to do so.
O'Connell v Jackson : motorcyclist not wearing helmet.
Jones v Livox : lift on back fo a forklift truck.
Causal link in CN cases?
Stapley v Gypsum Mines: don't get too technical, use common sense.
From v Butcher: setabelt %s = 25 if avoided injury, 15 if reduced, 0 if no effect.
Jones v Livox : claimant out himself at risk knowing he could fall.
What are the special situations to consider for the type of injury must be within the type of risk run by the claimant?
Gough v Thorner: 13 year old got mowed down by a car --> less cautious fo risk as a 13-year-old.
Jackson v Murray : no automatic bar to reducing damages,. 13 year old ran out from behind a bus --> 50% reduction in damages.
Sayers v Harlow
Jones v Boyce
Harrison v BRB
Sayers v Harlow?
woman trapped in a public loo fell and injured herself trying to climb out on a loo roll dispenser. Even in an emergency a little foolish so damages reduced by 25%
Jones v Boyce?
Passenger on top of a coach which he believed was a bout to tip over, jumped off and broke his leg. As an emergency did not have time to assess all the risks.