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Defences - Coggle Diagram
Defences
Other defences
Inevitable accident:
is one where the defendant could not possibly have avoided the incident and it is not intended
accident will occur regardless of how much care the defendant has taken
in a fault based tort such as negligence, means that defendant will not be liable
Act of God:
defence may be used when damage is caused by natural forces, only in circumstances that the defendant could not have been expected to foresee or guard against - defence rarely works
Statutory authority: full defence when it can be proved that the defendants actions are authorised by an act of parliament
Illegality: ex turpi causa
means that claim cant be based on illegal or immoral conduct - kirkham v chief constable of greater manchester - deceaseds wife failed to tell the police of her husbands suicide attempts
after he died while on remand, she bought a negligence claim against the police - claim succeeded but the court said that the defence covered both illegal and immoral acts
Necessity:
defence is used in relation to intentional torts such as trespass to person or trespass to land - necessity is used as a defence in assault and battery cases involving medical treatment where patient isnt capable of giving valid consent
test used here is wheteher the treatment is in best interests of patient - F v West Berkshire Health Authority
here mother was concerned that her child had mental age of small child would become pregnant because of the serious negative consequences of it - mother was asking the court for sterilisation of daughter to prevent this happening
if patient is able to give consent but refuses treatment, doctor may face battery claim if this refusal is ignored
case law shows that the courts are reluctant to allow a defence of necessity to succeed as it means that a loss may be inflicted on the claimant, particularly in relation to trespass to land
e.g. southwark london borough council v williams
Volenti non fit injuria: ' to one who volunteers, no harm is done'
full defence, and if proved the defendant will avoid liabillity completely
defence requires that there is a freely entered and voluntary agreement by the claimant, in full knowledge of the circumstances and risk
defenence can be used for both intentional (assault and battery) unintentional torts (negligence)
courts have been less willing to use defence - instead preferring to apportion blame using Law Reform (contributory negligence) act 1945
Elements
Voluntary: means that claimant has had complete free choice - if this has not been the case, defence will not succeed
Agreement: may be express/implied
If the claimant and defendant have expressly agreed that the claimant will voluntarily accept the risk of harm, and the agreement is made before the negligent act, defence will be successfu, and hte defendant wont be liable for the harm caused
if express agreement - may be subject to provisions in an act of parliament which doesnt allow someone to exclude liability for death or personal injury
rare for courts imply agreement to accept this risk
Knowledge and understanding: claimant must have knowledge of existence of risk and full nature and extent
test for deciding whether claimant had full knowledge is subjective - Woolridge v Sumner
The Road Traffic Act 1988: s149 of Road Traffic Act 1988 states that volenti is not available where a passenger in a car sues the driver and driver should have compulsory insurance
Application of employment:
concept of free choice has been discussed mainly in cases regarding employers and employees who have been harmed while at work
in early 19th century employees were assumed to consent to risk attached to their jobs - reasoning for this was at the time, the courts didnt believe that the relationship of the employer/employee was an equal one and an employee may have been afraid not to go to work for fear of losing job
as a response to societal and political changes, end of 19th century judicial thinking changed, (Smith v Baker) - approach taken in this case has been followed since and it is unusual for a volenti defence to succeed
it did succeed in Imperial Chemical Industries v Shawtell - the employee was not under pressure to take a risk but deliberately chose a dangerous way to work
Application in sports:
participant in sporting even taken to give implied consent to risk of injury that occurs in course of ordinary performance of the sport - defence will not be available to defendant where injury was inflicted outside rules of game
e.g. if a boxer hits an opponent below the belt in boxing match, and opponent is injured there will have been no consent to that harm and there would be a successful claim in battery
Contributory Negligence:
defence of contibutory negligence can be used in relation to following torts:
- negligence
- OLA 1957 & 84
- Animals act 1971
- Nuisance
- Rylands v Fletcher
However it cant be used as defence to any of intentional torts - trespass to person and land
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Nature of partial defence and reduction of damages:
before 1945 - contributory negligence was complete defence, if it could be shown that the claimant contributed to their injuries or damage caused in part by the carelessness of another person, then there would not be a successful claim - had same effect as defence as volenti
since Law Reform act 1945 - contributory negligence has become a partial defence, if claimant has contributed to their harm (possibly through carelessness or negligence in not taking precautions) they will have a reduction in damages to reflect this contribution
trial judge will decide the amount that will be deducted from damages that could have been awarded
damages will be reduced in 2 situations:
- where without claimants contributory negligence, the accident would never have happened
- claimants contributory negligence increased the severity of the injury/damage that would have happened anyway
usually the reduction in damages will correspond to the degree of blame attached to the claimant but this is not always the case
according to Jayes v IMI a claimant can be 100% contributorily negligent
in contrast in Anderson v Newham college - suggested that Jayes had been decided per incuriam and that it shouldnt be followed - if fault lies entirely with claimant the defendant cant be at fault as chain of causation has been broken - claimants contributory of negligence should reduce defendants liability not get rid of it completely
Consent (volenti non fit injuria) and contributory negligence are the most commonly used defences in tort, and if successfully sued, will allow the defendant to be either completely or partially blameless for their actions:
- volenti non fit injuria - means that claimant voluntarily agreed to accept the legal risk of harm at their own expense
- contributory negligence can be used as a defence when claimant has contributed in some way to their harm