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Year 1 - Business Law > sem 2 - last lecture (6) > Flashcards

sem 2 - last lecture (6) Flashcards

1
Q

once a tortious claim has been estbalished what is the defendant entitle to

A

any potential defences wiht onus of proof on the defenant not the claimant

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2
Q

whatrt are the defences you might want to rasie if accused of comitting tortious act

A

contributory negligence

violenti non fit injura - voluntary assumption of risk

ex turpi causa no oritur actio

act of God

Personal Defence

Necessity

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3
Q

what is act of God in short

A

somethin happens that no on could control

haev no regress over other indi

cort decided if responsiblity of park to keep trees safe so negligence if they weren’t doing proper/regular inspections

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4
Q

personal defence

A

aka self defence

allowed to take reasonable action/reasonable force to defend ourself

proprotionte to threat - court looks at context of situation to see if you did to mich

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5
Q

necessity

A

the tort/actin was necessary to rpevent a much greater than harm

has to be proprtionate to the threat/response

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6
Q

contributory negligence

A
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7
Q

what is partial defence in contributory neglgience

A

youve done somethhing negligently casuing harm but the one who suffered hatm casused/contributed to some of injuries/harm/damages

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8
Q

what does court do in contributory negigence cases - in relation to damages

A

herswhat yu fif to contribute to teh case and then reduce damges to account for that

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9
Q

what does the law reform contributory act 1945 set out

A

in cetian cirmcunstances what reductions wil be made

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10
Q

what 3 cases do we use for contributory negligence

A

st george v home office 2008

Jackson v Murray 2015

Nettleship v Western 1971

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11
Q

what happend in ST G V HOME OFFICE 2008

A

prisoner well known to police in young offenders

on top bunk fell off seriously injured - brain injury

fell off casue he had seizure as a result of being addicted to drugs and alochool and prison knows he has history of seizures

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12
Q

what did the parties and court say in st g v home office 2008

A

prsino say we might be responsible for for ptting you on top bunk knowing you at risk but you partly responsible by being a drug addict

court says no contributory negligence as situationbeen so closely connected w the harm that has been done

and prioson was tryna say casue you’ve been drug addict you responsible for injuries arising 10 years later- but xourt sayonig that is too far removed

prison entirley responsibel

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13
Q

what did st g v home office teach us about contributry negligence

A

you must be contributing actively in sufficient closeness to the event

so no contributory negligence

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14
Q

what happened in jackson v murray

A

school bus

13yr old ets of school bus crosses road and gets hit by a car and injured

driver (murray) isnt speeding but not drivinig carefully/slow enough considering school bus is there
so considered not driving carefully/sufficient enough

wants to bring claim against driver saying driver should’ve been more careful

but 13 yr old girl should be somewhat responsible for her safety

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15
Q

what awas the decision in jackson v murray

A

injury loss / damage 50 50 split

driver should’ve been more cautious approaching a school bus
13 yr old shouldve been more cauions

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16
Q

what happened in nettleship v weston

A

learner driver case

woman goes out driving w neighbour/friend who teaches her to drive and they have an accident

neighbourfried injured and tries to pursue

25% reduction each for damages 1

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17
Q

what does nettleshhip and western teach us

A

never totally get put of tortious act by way of contributory negligence

just casue you a ;earner driver dont mran nish

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18
Q

whats the tagline/key thing for voluntary assumption of risk

A

to the one who knows of the harm - no harm can be done

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19
Q

voluntary assumption of risk is all about

A

voluntary consent

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20
Q

if you can prove someone voluntarily consented to the harm casued to hem then

A

you have completed defence you not gonan be reliable

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21
Q

what are the two situations in whihch you have completed defence

A

consent to infliction of harm e.g. medical

consent to risk of harm inflicted accidentally -e.g when doing ultra high risk activities - my be asked to sign away righs to make claims should you be injured

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22
Q

what would be an example of an unfair term in the contract

A

i wont hodl anyone responsible for my injuries even where they have done something negligently

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23
Q

when do you always ahve a claim regardless of if you signed away your rights or not

A

if someone acc does something negligent and wrong e.g.they pack your bag wrong

24
Q

what case do we use for voluntary assumption of risk

A

morris v murray

25
Q

what happened in morris v murray 1990

A

pilot and frined go otu drinkign

then decide to take airplane for a flight

crashes pilot killed

oilot frined wants to pusrue claim against dead pilots estate saying you negligently flew plane when drank and this was v dangerosu for both of us

court says -violenti non fit injura - to one who consesnt no hatrm

it was also partly your idea to go in aeroplane when you were drunk and it wasn’t safe so can’t then make claim for damage that arises

this was a compete defense - no liability/responsibility

26
Q

talk to me about volunteer risk

A

when someoen goes into rescue to what eztent are they willingly accepting risk

professional accept level of risk reasonable in their circumstances - in fireman cases there willbe a point where teh level of risk you experieicnign beyond that you’ve consented for

consent holds you in realm of safe and reasosnable workn

but here you also expected to be of reasonable fortitude

so standard of lelvel of toleranc efor fig

just read over slide bfore the thing

27
Q

what does ex turpi cuasa mean

A

you can’t amke prosnal injury claim/damages that arise out of your own criminal activity

28
Q

ex turpi causa is the x principle

A

equitable principle

29
Q

what does the equitbale pricple prevent criminals from doing

A

brignin caim against fellow criminal

30
Q

if do somehing illegal and in the proces you get hurt and you pursue a claim agaisnt whoever has hurt you you might have no luck becasue your actions were founded on

A

illegality

31
Q

want arent you supooed to be able to do from crminal acitivyt

A

profit

32
Q

does ex turpi cuassa maena a crimanl who get shur can never make claims against people and expand

A

no

depends on what is going on in the situation

33
Q

what cases do we use for ex turpi causa

A

vellino v chief constable of greater machester 2001

revill v newberry 1996

34
Q

vellino v chif constable

A

petty criminal kown to manc police

he is sa serious esape artist

police go to arrest him ther is a scrap andhe escapes
jumps out of 2nd floor and suffers brian injury

he says police owe him duty of care ass alreadybeen arrested and you owed me a duty of care to not let me jump out of window. + you kenw my hispopry and that i was that kid of person

court says no

35
Q

why did court say no in vellino v chief constable

A

this was an example of tryna found your claim

you escaped custody ad got injured in the process - that’s your problem so police not gonnabe liable for that

36
Q

what happend in revill v newberry

A

trespasser got shot by man waiting in shed for him

reville pursued action for neglgiencec reslting in personal injury and also claimed occupiers laiblit

newberry tried to defend saying he cant be held accountable for someone trying to burgle his property and gets shot

they say reville comes to place alot so knkew about risk and consented - but court says no he didnt knwo about riskof ebin g shot and no one warnedhim

then they say ex turpi causa - mr revilles actions were illegal and he was illeally tryna burgle and trespass - in process of ebing ilegal he got hurt so shouldn’t be able to reclaim loss

court sya just cause reville doing something illegal dont mean he excluded from all claims of personal innjury

non criminal still held to standard rewuired in occupirs laibltiy - i.e. duty of care to trespassers and there was somethign he could do about the danger

so court says you cant use illeflaity defence t excuse your own extreme , disproportionate illegal actions

37
Q

remedies

A
38
Q

reemdies ar ewaht you get at the

A

end

39
Q

we looking at remedies in

A

common law

40
Q

non pecuniary damages are not

A

moeny

41
Q

non pecuniary damages are

A

own pain and suffering and loss of future opportunities

dont have a value got to work it out conceptually anfd argue about it

42
Q

what are pecuniary damges

A

money

e.g. how much money did you loose when couldnt go to work for 10 weeks as a result of the tort

43
Q

what are you expected to do with you rlosses

A

mitigate

44
Q

what does mitigate losses means

A

ahve to make effort not to loose to much and make losses worse

45
Q

example of mtiitgation

A

if doctor sasy you can work after x weeks you should go back

46
Q

waht does ciurt try to reduce

A

amount of additinoal claim dont wanna be overgeneorus

they want to calculate what you actually lost

47
Q

give example of expectation of mitigation

A

going to mecical appointments and looking after your own conditins - not wilfully contributing to them being slow in recovey

48
Q

what do msot peopel want a a result of tortious acts

A

common law remedy

49
Q

what is time limit of equitable remedy

A

none

50
Q

what can injunctions be

A

prohibitory

or

mandatory

51
Q

prohibitory injunction meaning

A

you must stop doing simething

e.g. playing stuff at 3 am

52
Q

injunction meaning

A

order that court tells someone to do something

53
Q

injunctions are not cash they are an

A

equitable remedy

54
Q

you can only get an injunction if

A

you’ve also been honest in the process

55
Q

anything beyond money is x on the courts

A

discretionary

56
Q
A

Year 1 - Business Law (17 decks)

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