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Defences and time limits of causation (Time Limits (Latent Damage (When a…
Defences and time limits of causation
Defences
Volenti non fit injuria
Means "no injury can be done to a willing person" used where a claimant has voluntarily taken a risk of harm
Was acceptance voluntary?
Can only be successful if the person had genuine freedom of choice
Volenti and exclusion clauses
Contracts often include exclusion clause or disclaimers which states the seller doesn't accept liability for harm
Morris v Murray (1991)
COA held that the defendants drunken state was so obvious that the claimant had voluntarily taken the risk of an accident and received no damages
Looks at 2 questions
Was the acceptance really voluntary?
Did the claimant accept the risk?
Did the claimant accept the risk?
Courts look at what the claimant did and infer whether the claimant accepted the risk
ICI v Shatwell
(1965)
Court held that the claimant was fully aware of the risk taken because he had been warned to take precautions and went ahead anyway and so had clearly consented. No damages given
Knowledge of the risk is not enough
Smith v Baker
(1891)
The HOL held that if a person took on work that would have been dangerous even with precautions they might be said to be accepting the risks but in this case the work was made dangerous by the defendants negligence which the claimant had tried to remove of the danger and so he had not consented to the danger
Illegality
Applies where the damage or injury to the claimant is connected with the fact that they have committed an illegal act (ex turpi causa non oritur actio - no action may be based on an illegal cause)
Basic reason for the defence is public policy
Ashton v Turner
(1981)
Attempted to sue his co-burglar but court held that it was prevented by defence of illegality
Clunis v Camden and Islington Health Authority
(1998)
COA held that he could not use own illegal act to create the basis of a claim
Gray v Thames Trains Ltd
(2009)
COA refused the claim as the claimant knew what he was doing even the mental disorder
Contributory Negligence
The type of damage
Can link to personal injury and economic loss when the claimant has not taken reasonable care for own financial situation
Cavendish Funding Ltd v Henry Spencer and Sons Ltd
(1998)
COA held that contributory negligence occurred as the 2 valuations should have been made it clear that something might be wrong and they should have checked that before lending money
Where a defendant raises this defence, courts will ask
: did the claimant fail to take reasonable care for their own safety; and was that failure a cause of the damage suffered
Did the Claimants lack of care help cause damage?
Smith v Finch
(2009)
Claimant did not wear helmet however, helmets do not help protect heads if the crash is a t high speed and so the results would have been the same. Defence failed for defendant
Nature of the risk
For this the claimants lack of care to link to the damage must have related to the risk of the damage
Jones v Livox Quarries
(1952)
Claimant was riding on the back of a vehicle that was not designed for that and was injured due to the defendants negligent driving. Claimed the risk he took was not to fall off but the court disagreed and said this risk was within the range of risks arising from his behaviour so he was contributory negligent
If the Claimant does not take any reasonable standard of care for own safety but the accident happening and the same outcomes happening would be the same then that means that the defence cannot be used
Contributory negligence will only provide a defence it if helped to cause the accident or the damage, or made the damage worse
Did the Claimant take reasonable care?
Uses the standard of reasonability
Baker v Willoughby
(1970)
Due to the Claimants lack of attempt to move out the way, the COA held that the damage was 50/50 under this defence and therefore the damages was reduced by 50%
Badger v Ministry of Defence
(2005)
The HC held that the defendants were not liable for the claimants husbands death as he had been a smoker since 1955 and it became widely known that smoking caused lung cancer in the mid 70s and also he had been warned to give up smoking for his health in 1968 and so a reasonable man would have given up by the mid 70s and so he was contributory negligent
Jones v Boyce
(1816)
The reins broke on the coach and the claimant jumped off the coach to avoid any serious injury and ended up breaking their leg.The courts held that there was mo liability on the claimants side and was seen as a reasonable act to a seemingly dangerous situation
Introduced by the Law Reform (Contributory Negligence Act) 1945
and before that the common law provided anyone who was partly responsible for damage done to them could not sue at all which was unfair on claimants and allowed for defendants to avoid liability even with serious injuries included
s.1(1) = where a claimant is partly responsible for the damage they suffer, a court can reduce the damages that would normally be awarded for that injury "to such extent as the court thinks just and equitable having regard to the claimants share in the responsibility for the damage".
Courts express the claimants responsibility as percentages and will reduce damages according to the percentage
Calculating damages
The courts must reduce damages by a proportion that they consider "just and equitable" - Law Reform Act
Where the defendant causes the claimant damage but the claimant also contributes to the damage in some way, either by partly causing the damage or by doing something which makes the damage worse
Child claimants are not expected to take the same amount of care for their own safety as an adult and only found negligent under this if they have failed to take the amount of care a child is expected to take
Yachuk v Oliver Blais
(1949)
Company found negligent for selling the child petrol and there was not contributory negligence as the child was not expected to understand the dangers
Evans v Souls Garage
(2001)
There was contributory negligence as the child who was 13 should have known the dangers of the petrol he brought.
Time Limits
The right to bring a claim does not last forever
It would be unfair to allow the claimant unlimited time to sue
Limitation Act 1980 limits different types of court cases. Tort = 6 years at basic but this is different for defamation; product liability; personal injury
Latent Damage
When a claimant has not realised that the damage has occurred until ages later
Latent Damage Act 1986 amended the Limitation Act and applies to all negligence claims but personal injury