Karteikarten
Chapter 6 : Defences
Karten in diesem Stapel (52)
- 1In which three circumstances can the defendant raise defences?1. Negligence-based torts;
2. Intention-based torts; and
3. Strict liability torts. - 2What is the characteristic feature of a defence?Once the claim is prima facie proved by the claimant, the burden of proof shifts to the defendant to show that there is something wrong with the claim, usually because of the claimant's conduct.
- 3Is the burden of proof and standard of proof the same?No. The standard of proof is the balance of probabilities whereas the burden of proof is the obligation to prove one's claim.
- 4Can a claimant be successful in his claim if there is a successful defence to his claim?No.
- 5Are the defences to negligence derived from common law or statute?Both.
- 6What is the function of a defence to a negligence claim?The function of a defence to a negligence claim is to reduce or eliminate the defendant's liability for the damage suffered by the claimant.
- 7What is a partial defence?A partial defence is where a defence may reduce the defendant's liability if it enables the court to apportion some of the blame for the harm to another cause. The most common example of this is contributory negligence.
- 8What is a full or complete defence?This is a defence (which is most defences) meaning, if successfully pleaded, they complete absolve the defendant of all liability for the injury.
- 9What are the two important common law defences to a claim of negligence?1. Ex turpi causa non oritur actio; and
2. Volenti non fit injuria. - 10What is ex turpi causa non oritur actio?This means that no legal action (i.e. no claim for damages) can arise from a blameworthy cause. This means that a person who is involved in a criminal act at the time he is injured may be held not to have a cause of action. Because no action can succeed, it is a complete defence.
- 11The test for ex turpi causa non oritur actio has developed so that a claim fails on the ground of illegality if... List the four things.1. there is a very close connection between the illegal activity of the claimant; and
2. the injury which he suffers;
3. so that the damage arises directly out of the illegal activity;
4. in such a way that it would be contrary to public policy to allow the claimant a remedy. - 12Can this defence be used where a claimant has committed a criminal act because of the defendant's alleged negligence? Which case proves this?Yes. This is supported by Clunis v Camden and Islington Health Authority [1998].
- 13Which case proves that ex turpi causa non oritur actio applies to companies as well as to individuals?Stone & Rolls Lt v Moore Stephens and Another [2009].
- 14What is the "inextricable link" test and which case supports this?This means for the defence to apply, there must be an inextricable link between the criminal act and the loss claimed. This is supported by Gray v Thames Trains Ltd and Another [2009].
- 15What is meant by "volenti non fit injuria"?This means "no injury can be done to a willing person". This can be applied when the defendant can show that the claimant voluntarily consented, with knowledge of the risk, to the injury or to the possibility of injury. Unlike contributory negligence, with which it overlaps, it provides a complete defence.
- 16Which case supports the defence of consent (volenti non fit injuria)?Stermer v Lawson [1977] . This case is authority that, for this defence to succeed, the defendant must show that the claimant knew of the risk that he was taking.
- 17Consent must be freely given. True or false?True. A vital aspect of the defence is that consent must be freely given, so an employer cannot usually plead that an employee consented to the risk, because the court will find that the employee had no choice. This is supported by Smith v Baker [1891].
- 18What does Imperial Chemical Industries Ltd v Shatwell [1965] establish?This case established that, even in an employment situation, the defence may be applicable if the employer can establish that the employee had agreed to, and taken part in, the dangerous activity with full awareness of the risks.
- 19Is this defence likely to succeed in respect of harm to a rescuer?No. A person put into a position where he feels morally or legally obliged to rescue someone does not freely consent to the risk of injury. This is supported by Ward v T E Hopkins & Son Ltd; Baker and Another v T E Hopkins & Son Ltd [1959]. This case held that the defence would not operate in a situation where the defendant's negligence had placed people in such a perilous situation that it was necessary for someone to attempt to rescue them.
- 20What does Murray v Harringay Area [1951] establish?This case established that spectators at a sporting event are regarded as consenting to the normal risks of watching that sport (i.e. consenting to getting hit in the face by a ball).
- 21At a sporting event, does a spectator consent to the risk of negligence, either by the participants in a game or the occupiers of the premises where it is played?No. A spectator does not consent to the risk of negligence. Therefore, if an accident occurred because the claimant's seat was too near the rink for safety, the defendants would have been liable.
- 22Does the defence also apply to voluntary participants in sports and other hazardous activities?Yes. This is established in Poppleton v Trustees of the Portsmouth Youth Activities Committee [2008]. In this case, a major factor in the decision was that there were "inherent and obvious risks in the activity which Mr Poppleton was voluntarily undertaking".
- 23On the whole, the courts tend to accept the defence of volenti only in extreme cases. True or false?True. This is proven in Morris v Murray [1990].
- 24What did s149 Road Traffic Act 1988 state?This provides that the defence of volenti cannot be used against passengers travelling in vehicles, and it is ineffective for the driver to try to exclude liability to a passenger by agreement. This means that, if facts similar to those in Morris v Murray occurred now, the statute, rather than the case, would determine the outcome, and the defence of volenti would not succeed.
- 25Although negligence is principally a common law subject, Parliament has intervened to prevent claims from succeeding in certain circumstances, and to prevent the effective imposition of volenti upon the other party to the contract. True or false?True.
- 26What is contributory negligence?Contributory negligence is a partial defence. If it succeeds, the outcome is a reduction in the amount of damages which must be paid to the defendant. Contributory negligence was created by the Law Reform (Contributory Negligence) Act 1945 which stated if the damage caused by the negligence of the defendant was partly caused or increased by the negligence of the claimant, damages may be apportioned so the claimant will only get part of his damages. This Act provides the court should assess the total damages and then reduce them accordingly.
- 27In order to establish contributory negligence, the defendant must prove that the claimant acted carelessly. All that need be established is that the claimant failed to take reasonable care for his own safety. This will be held to be the case, if the claimant:1. Is partly to blame for the accident in which he is injured (as illustrated in Fitzgerald v Lane [1989] where half damages were recovered); or
2. Puts himself in a dangerous position which exposes him to the risk of involvement in the accident in which he is harmed (as seen in Davies v Swan Motor Co (Swansea) Ltd [1949] where damages were reduced by 20%); or
3. does not increase the risk of injury, but his failure to take reasonable care for his own safety increases the extent of the injury suffered. - 28What two cases relate to contributory negligence involving injured car passengers who have failed to wear seatbelts and what rules were established?1. Froom and Others v Butcher [1975] - Damages were reduced by 25% as although he didn't cause the accident, he could have avoided his injuries or reduced the extent of them.
2. Owens v Brimmell [1976] - Damages were reduced by 20% because claimant got in car with drunk driver drinking earlier the driver would be drunk - 29The courts are reluctant to find that the claimant was contributorily negligence in what three circumstances?1. If the claimant is a child - He may be too young to have understood the risk he was taking. Note this is not applicable in all cases (as seen in Gannon v Rotherham Metropolitan Borough Council [1991]).
2. If the claimant is an employee - Employers have a specific duty to ensure that the workplace is safe for their employees, and this includes a duty to keep them safe even if they are careless or disobedient (unless they don't wear safety clothing provided).
3. If the claimant was a rescuer - The courts are generally sympathetic to rescuers. This is seen in Harrison v British Railways Board [1981].
4. If the court accepts the claimant was in a difficult situation ("the dilemma principle") - This is supported by Sayers v Harlow Urban District Council [1958]. - 30What other case is based on contributory negligence and the dilemma principle?Dorning v Personal Representative of Rigby (Deceased) [2007].
- 31What was established in George v Home Office [2008]?If a person's contribution to his potential injuries is foreseeable to someone who has a duty of care towards him, the defence may not apply.
- 32What does s2 Limitation Act 1980 specify?s2 Limitation Act 1980 specifies that the limitation period (i.e. the period in which claims must be made) for a claim in tort is 6 years from the date on which the claimant's cause of action arose. This is either when the wrongdoing happened or (in the case of torts causing damage) the date of damage.
- 33Can an action be brought after the 6 year limitation period has ended?No. Limitation is therefore a complete defence. However, if a claimant "is under a disability" the limitation periods do not start until the claimant either ceases to be under the disability or dies.
- 34What is the most common form of being "under a disability"?The most common form of being "under a disability" is being an infant (any age under 18). The time limit for a personal injury claim in respect of a child therefore does not start until either the child reaches the age of 18 or dies.
- 35If someone is permanently brain damaged, when does the limitation period for them end?It doesn't. He remains "under a disability" for the rest of his life, so a claim can be started at any time before his death. This was seen in Maga v Roman Catholic Archdiocese of Birmingham [2010].
- 36What does statute-barred mean?A claim will be statute-barred if the specified time period has expired.
- 37What are the three important exceptions to the six-year limitation period rule?1. Personal injury;
2. Death of the claimant; and
3. Latent damage. - 38What is the limitation period for a personal injury case?Personal injury cases have a limitation period of 3 years from the date on which the cause of action arose, which is the latest date of:
1. the wrongdoing occurring;
2. the injury being sustained; and
3. the claimant having knowledge of the injury. - 39What is "date of knowledge"?The "date of knowledge" is the date when the claimant first know that the injury was significant, that it was caused by the defendant's actions and is able to identify who the defendant is. This is supported by Halford v Brookes and Another [1991].
- 40What was held in Haward and Others v Fawcetts and Another [2006]?In this case, it was held when deciding the date of knowledge of the facts which would have justified the claimant bringing a claim of negligence, the relevant date is not when the claimant first knew he had a claim but the earlier date when he first knew enough to begin investigating the possibility that the defendant might have been negligent.
- 41Which case illustrates the importance of a potential claimant acting as soon as he is aware of the possibility of a potential defendant's negligence having caused damage?Mackie v Secretary of State for Trade and Industry [2007].
- 42What is the limitation period for victims of sexual assault?As these incidents were deliberate assaults, the claimants could not extend their "date of knowledge". Because the delays in bringing the actions were attributable to the psychological state of the claimants, a court could potentially extend the time limit, which affords discretion based on the reason for any delay in bringing the claim.
- 43What is the limitation period position in relation to the death of a claimant?If a claimant dies, as a result of the defendant's action, within 3 years of the cause of action arising, a fresh 3 year period commences in favour of the claimant's personal representative or the dependants. This period starts on the later of the date of death and the date of knowledge of the death.
- 44If the claimant died, as a result of the defendant's tort, but without discovering that he had a cause of action, when will the limitation period start for the personal representatives or dependants?In this case, the fresh period starts on the later of the date of death and the date on which the personal representatives or dependants had the knowledge necessary to bring a claim.
- 45What is latent damage and what is the limitation period in the case of latent damage?Latent damage is damage that is not apparent (such as damage to the foundations of a house). The Latent Damage Act 1986 added additional provisions to the Limitation Act 1980. These provisions provide that the claimant has the longer of:
1. the normal 6 year period, starting when the damage was done; and
2. a three year period that begins when the claimant discovered or ought to have discovered the damage. - 46Is there a final deadline of the latent damage limitation period?There is a "long stop" which provides that no claim can be raised more than 15 years after the date of the defendant's negligence.
- 47What do exclusion or limitation clauses attempt to do?Exclusion clauses are designed to ensure that one party can have NO liability in negligence to the other. Limitation clauses are defined to ensure that one party's liability to negligence to the other is restricted.
- 48Until 2015, all such exemption clauses were subject to the Unfair Contract Terms Act 1977. What has been the case since 2015?Since 2015, any exceptions, insofar as they affect consumers, have been subject to the Consumer Rights Act 2015.
- 49Why does a lawyer still need an understanding of Unfair Contract Terms Act 1977?1. Businesses and people working for them (as contrasted with consumers) can suffer negligence at common law.
2. Non-businesses (private individuals) can be liable in negligence to other private individuals. - 50What three important things are there in relation to The Consumer Rights Act 2015?1. It is wide-ranging.
2. Only two sections deal with the exclusion of negligence liability by traders as against consumers.
3. They regulate personal injury more strictly than property damage. - 51What is stated in s65 CRA 2015 / s2(1) UCTA 1977?A trader cannot exclude or restrict liability for death or personal injury resulting from negligence.
- 52What is stated in s62 CRA 2015?A consumer is not bound by a term excluding or restricting liability for property damage if it is unfair. A notice is unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations to the detriment of the consumer. Whether a notice is fair is determined by taking into account the nature of the subject-matter of the notice and by reference to all the circumstances when the breach to which it related occurred. S2(2) UCTA 1977 similarly requires an assessment of the clause's reasonableness.
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- Level 3 Law of Tort Karteikarten am Chapter 6 : Defences, erstellt von Emily Greig am 24/05/2018.
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