Flashcards
Defences
Cards in this deck (20)
- 1What are the 6 defences to the tort of negligenceContributory negligence.
Volenti non fit injuria.
Illegality.
Exclusion clauses.
Therapeutic privilege.
Necessity. - 2Who does the burden of proof rest on in the above circumstances?The defendant.
- 3How many of the above are a complete defence?All but contributory negligence.
- Contributory negligence is a partial defence and in all probability cannot serve as a complete defence. - 4What is contributory negligence?Claimant was at fault for contributing to his own damage.
- 5Which act sets out contributory negligence? - What does it state?Law Reform (Contributory Negligence) Act 1945.
- Where a person suffers damage as the result partly of his own fault, a claim in respect of damages shall not be defeated, but the damages recoverable shall be reduced to the extent as the court thinks just an equitable. - 6What happened in Pitts v Hunt? - What was held initially? - What was then held?C drove D and himself home on a motorbike drunk.
D acted recklessly driving home.
Collided with car, D was killed, C was severely injured.
- Held there was a 100% CN application.
- Court of Appeal held that at most it was 50% CN, however the defence of illegality was applied separately, defeating the claim. - 7What are the four elements of CN?C partly at fault.
Casual link between C's CN and his injury.
Apportionment of CN must also take into account blameworthiness of the conduct of C and D and the extent of their fault in causing C's damage.
C's damages must be reduced by an amount which is just and equitable. - 8What must the D prove the C failed to take? - What is not necessary?Reasonable care for their own safety.
- For the C to owe the D a duty of care. - 9What did Badger v Ministry of Defence hold?A person who smokes should foresee that they are likely to develop lung cancer, and where they are exposed to cancer causing materials such as asbestos, the damages will be reduced due to CN.
- 10What does the D need to demonstrate for claimant's fault?That the C should reasonably have foreseen that if they did not conduct themselves in accordance with the standard of care they might contribute to their own injuries.
- 11What happened in Murphy v Culhane? - What was held?Murphy met up with other men to beat up D in his house.
During the fight D struck Murphy on the head with a plank and killed him.
D convicted of manslaughter.
C's widow brought an action for damages.
Held even if the C's widow was entitled to damages, they would be reduced under the 1945 Act because C's death was the result partly of his own fault. - 12What does the D need to show for causation?Some act or omission on the C's part contributed to identifiable injury to the C.
- 13What is not wearing a seatbelt regarded as? - What is it necessary for the D to prove, however?Failing to take precautions for your own safety.
- That the failure to wear the seatbelt was a cause of the injuries. - 14What is the test for causation?But for.
- 15What does the court need to take into account?The relative blameworthiness of the D.
- 16What happened in Stapley v Gypsum Mines? - What was held?C and his colleague told by D (employer) to bring down a dangerous roof and not to work underneath it.
Failed to bring roof down.
C proceeded to work underneath it.
Roof collapsed and killed him.
- Held 80% CN. - 17What is volenti?'To he who is willing, no harm is done'
- 18What are the four elements of volenti?C knew of, and appreciated, specific risk or injury posed.
C voluntarily consented to risk.
D does not destroy content of duty which D owed to C.
Defence is not barred by law. - 19What happened in Tichener?Girl ran across train track.
Knew the risk.
Hit by train and died.
Accepted the risk. - 20No action can be founded upon ___.An illegal act.
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- Old Flashcards on Defences, created by Jordan Quigley on 16/10/2018.
- Created by
- Jordan Quigley · Oct 2018
- Updated
- Oct 16, 2018
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