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General Negligence - Defences (Three defences (Contributory negligence -…
General Negligence - Defences
With defences burden of proof shifts to the defendant - must raise and prove the elements of the defence on a balance of probabilities
The actions and any fault of the claimant are taken into account when considering
In discussing, need to explain the effect that the defence has on liability or assessment of damages
Three defences
Volenti (consent) - if successful this negates liability
Four elements - Smith v Charles Baker
1) Capacity to give valid consent
Kirkham v Chief Constable of Greater Manchester (1990) - known suicide risk - police argued fully consented to harm because tried to kill himself - Court didn't accept because reason affected
Hard to argue valid consent with children or the mentally ill
2) Knowledge of the risks
Suggestion that this is subjective - not about whether 'reasonable'
Morris v Murray (1991) - about this particular claimant - specific knowledge of risks and percentage
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3) Agreement to the risk of injury
Dann v Hamilton (1939)/s149 Road Traffic Act 1958 - knew driver has been drinking - Court allowed consent in that knew of the risk but getting into car not same as agreement to be injured - decision negated by act but still good law outside context of driving
Morris v Murray - pilot - had been drinking - obvious risk - applied Dann v Hamilton - not blind drunk so not consent
Agreement in employment/sports
Smith v Charles Baker (1891) - complained about danger - consent to work in dangerous environment different from consenting to lack of care - duress
Hall v Brooklands Auto Racing Club (1933)
Smolden v Whitworth (1997)
4) Agreement is voluntary
Rescuers - Court sympathetic - question of what they consent to
Baker v Hopkins - rescuer was told it was too dangerous to attempt - also died trying to save others - had known about risk and agreed - highly risky, but volenti not allowed
Haynes v Harwood (1935) - not allowed
Ogwo v Taylor - not allowed - limits to consent even for professional rescuer - would be morally repugnant otherwise
Employment
Bowater v Rowley Regis Corp (1944)
ICI v Shatwell (1965) - rare case where did work against employee - claimant was suing vicariously against employer - was very serious risk and completely voluntary
Contributory negligence - if successful does not affect liability but will lead to reduction in damages
Only affects damages so preferred by courts as is less harsh than others
Basis for defence - s1 Law Reform (Contributory Negligence) Act 1945
Damages will be reduced to such an extent as the court thinks just and equitable having regard to the plaintiff's share in the responsibility for the damage
Test found in Jones v Livox (common sense approach)
1) The claimant failed to take reasonable care of themselves
Froom v Butcher (1976)
O'Connell v Jackson (1972)
Jones v Livox (1952)
2) Failure to take reasonable care contributed to their loss
Stapley v Gypsum Mines (1953)
Froom v Butcher (1976)
Jones v Livox (1952)
Ex turpi (illegality) - if successful this negates liablity
Used to deprive claimant of a remedy where it would be an affront to the public conscience to do so - usually relates to a criminal activity, though will also have failed at duty stage
Pitts v Hunt (1990)
Vellino v Chief Constable of Greater Manchester (2002)
Behaviour must be sufficiently serious
Marsh v Pauline Care (2003)
Nayyar v Denton Wilde Sapte (2009)
Kirkham v Chief Constable of Greater Manchester (1990)
Reeves v Commissioner of Police at the Metropolis (1999)
Claimant's illegal activity must be causally related to loss
Vellino v Chief Constable of Greater Manchester (2002)
Sacco v Chief Constable of South Wales (1998)
Beaumont b Ferrer (2015)
Delaney v Pickett (2011)
Gray v Thames Trains (2009)
Common for two or more defences to be argued on same facts
Special situations
Children - rare to say contributed - again, reasonable care for that age
Gough v Thome (1966)
Jackson v Murray (2015)
Yachuk v Oliver Blais (1949)
Emergencies - people don't always assess risk properly so may not be contributory
Jones v Boyce (1816)
Sayers v Harlow (1958) - not enough of an emergency