Chapter 7: Defences

Flashcards reviewing legal defences in tort law: consent (volenti non fit injuria), contributory negligence, and illegality (ex turpi causa).

What four main defences are covered in Chapter 7?

Consent, Contributory negligence, Illegality, and Excluding liability.

Is consent (volenti non fit injuria) classified as a complete or partial defence?

A complete defence.

What two elements must the defendant prove to establish the defence of consent (volenti non fit injuria)?

Full knowledge of the nature and extent of the risk, and willing consent (sciens is not volens, Dann v Hamilton).

Which extreme case demonstrates the successful use of the consent defence involving a very drunk pilot?

Morris v Murray.

How does Road Traffic Act 1988 s 149 restrict the defence of consent?

It cannot be used against motor vehicle passengers.

Why does the defence of consent rarely succeed against employees according to Smith v Baker?

Because employees lack real freedom of choice.

Why do rescuers (including professionals) fail to be volenti under Haynes v Harwood?

Because they act under a compelling duty and act reasonably.

Is contributory negligence classified as a complete or partial defence?

A partial defence.

What are the two elements required to establish contributory negligence?

Carelessness by the claimant, and that it contributed to the damage (not necessarily the accident).

What statute provides that damages for contributory negligence are reduced to what is just and equitable based on culpability and causation?

Law Reform (Contributory Negligence) Act 1945.

Under Froom v Butcher, what are the standard percentage reductions in damages regarding failure to wear a seatbelt?

$25\%$ reduction if the injuries would have been avoided, $15\%$ if less severe, and $0\%$ if no difference.

Which case illustrates contributory negligence for accepting a lift from a driver known to be drunk?

Owens v Brimmell.

How is a child evaluated for contributory negligence under Gough v Thorne?

A child is judged against an ordinary child of that age and is not 'identified' with the parents' negligence.

Under Baker v Hopkins, what standard must be shown for a rescuer to be held contributorily negligent?

Only a 'wholly unreasonable disregard' for their own safety.

Why are courts slower to find contributory negligence in employees according to Caswell?

Given the work conditions.

Under Jones v Boyce, how is a claimant's conduct treated in dilemma cases involving the 'agony of the moment'?

Reasonable action in the 'agony of the moment' is not negligent (contrast Sayers v Harlow).

Is illegality (ex turpi causa) classified as a complete or partial defence?

A complete defence.

What is required to establish the defence of illegality (ex turpi causa) according to Pitts v Hunt and Ashton v Turner?

A very close connection between the claimant's illegal activity and the injury, such that allowing a remedy would be contrary to public policy.

Is a minor unrelated offence (such as parking or not wearing a crash helmet) sufficient to establish the defence of illegality?

No, a minor unrelated offence is not enough.