Tort - Defences Flashcards
(48 cards)
What does ‘volenti non fit injuria’ mean?
To a willing person, no injury is done.
What are the four essential elements for valid consent?
1️⃣ Capacity to consent
2️⃣ Full knowledge of the risks
3️⃣ Agreement to the risks
4️⃣ Voluntariness
Who has the burden of proof for consent?
The defendant, on the balance of probabilities.
Is a signed disclaimer alone sufficient to establish consent?
No, capacity, knowledge, agreement, and voluntariness are also required.
When might consent fail as a defence in employment situations?
When there’s a power imbalance, making consent not truly voluntary.
Does consent cover all risks in sport?
No, only inherent risks of the sport; foul play or excessive force is not covered.
What effect does valid consent have on a negligence claim?
It’s a complete defence, removing liability.
What does Section 65 of the Consumer Rights Act 2015 prohibit?
Terms that exclude or restrict liability for negligence causing personal injury.
Is consent available as a defence where statutory protection applies?
No, statutory protections can override consent (e.g., Road Traffic Act, Consumer Rights Act).
What is the subjective test for assessing whether a claimant voluntarily assumed a risk?
Whether the claimant had actual knowledge of the nature and extent of the risk.
It is a subjective test and does not consider what a reasonable person would have known.
What must a defendant establish for a finding of contributory negligence?
a) C failed to take reasonable steps for their own safety; and
b) this failure contributed to C’s damage
Relationship between a finding of contributory negligence and the liability of a defendant?
Reduces their liability - claimant’s damages are reduced by a percentage the court thinks just and equitable having regard ot the claimant’s share in the responsibility for the damage - it’s a partial defence
What is the standard of care for the claimant in contributory negligence?
The claimant must exercise the care of a reasonable and prudent person (objective test).
Special allowances may be made for emergencies, difficult dilemmas, children, rescuers, and nature of the duty.
When is the only time a child can be found contributorily negligent?
They fail to meet the standard expected of a reasonable child of that age.
How is the reduction of damages calculated in contributory negligence?
The court exercises discretion to reduce damages justly and equitably, reflecting the claimant’s share of fault. Reduction percentages vary case by case (Froom v Butcher [1976] suggested 25% reduction for no seatbelt).
What is the defence of illegality?
Might apply where the claimant was involved in an illegal activity at the time they suffered their loss
Complete defence.
Current leading authority on defence of illegality
Patel v Mirza
Underlying policy question to be answered when determining whether illegality is applied?
Does allowing recovery produce inconsistency and disharmony in the law
‘trio of necessary conditions’ required to apply illegality defence (Patel)?
(a) Underlying purpose of the prohibition and whether denial enhances it
(b) Other relevant public policies impacted by denial
(c) Whether denial is a proportionate response to the illegality
How does the defence of illegality relate to public policy?
It aims to prevent the legal system from compensating for consequences of the claimant’s own criminal conduct, which would be offensive to public notions of justice and fairness.
The defence of illegality is also known as:
Ex turpi causa non oritur actio
How is proportionality assessed in the illegality defence?
By balancing the seriousness of the claimant’s conduct, the centrality of the conduct to the tort, intent, and relative culpability of the parties.
When will the defence of illegality typically apply?
When the claimant’s injury arises directly from their involvement in illegal activity and there is a very close connection between the illegal act and the injury.
What kind of illegal activity is required for the defence of illegality to succeed?
The illegal activity must be substantial and closely linked to the injury; a relatively minor offence or unrelated illegal activity will not support the defence.
