L7 Negligence Defences

Question 1

Lack of Elements 1

Answer 1

No duty of care was owed.
The defendant might claim that there was no ‘neighbour principle’ because it was not reasonably foreseeable that their actions would cause harm to the plaintiff.

Question 2

Lack of elements 2

Answer 2

The duty of care was not breached. This means that the risk might not have been reasonably foreseeable, the risk was theoretical or that the defendant acted as a reasonable person would e.g. taking precautions to eliminate risks

Question 3

Lack of elements 3

Answer 3

The loss was caused by other means. This means that the chain of causation was likely broken by intervening events. Thus, the defendant’s breach is not a necessary condition of the plaintiff’s loss

Question 4

Lack of elements 4

Answer 4

No loss or harm occurred. This means that the loss was too remote and not a direct result of the breach.

Question 5

Voluntary Assumption of risk

Answer 5

This is a complete defence whereby the defendant avoids liability.
- Plaintiff was aware of an obvious risk
- Plaintiff voluntarily chose to take the risk (either through the implied consent or formal consent e.g. contract, waiver)

Question 6

Contributory Negligence

Answer 6

Did the plaintiff take reasonable care to avoid foreseeable harm? The defendant must prove that the plaintiff contributed to the harmful situation or is partly to blame for the harm.

Not a complete defence as plaintiff is partly to blame. Thus, it does not absolve the defendant of full liability but does reduce damages

Question 7

Burden of proof

Answer 7

Rests on the defendant to prove their defence(s)