SQE1 Tort: Defences in Negligence

Comprehensive practice flashcards based on the lecture notes regarding tort negligence defences including Consent, Contributory Negligence, and Illegality.

General Defences

Defences that may be raised in a negligence claim to eliminate or reduce the defendant's liability to compensate the claimant for their losses; they can also apply to other torts.

Consent (voluntary assumption of risk)

Also known as volenti non fit injuria, this is a complete defence that prevents a claimant from recovering damages if the defendant establishes that the claimant had full knowledge of the risk and willingly consented to it.

Sciens is not volens

A legal principle meaning "knowledge is not consent," indicating that a claimant's simple knowledge that a risk exists is not sufficient for the defence of consent to succeed; they must also freely consent to run that risk.

Section $149$ of the Road Traffic Act $1988$

A statutory provision applying to any motor vehicle requiring compulsory passenger insurance, which renders any acceptance of risk by the passenger invalid, thus preventing the defence of consent from being used.

Consent and Employees

A situation where the defence of consent rarely succeeds because employees often act under economic or duty-based pressure, meaning they lack the true freedom of choice to voluntarily assume risks, as illustrated in Smith v Baker [$1891$].

Consent and Rescuers

A situation where rescuers are generally not considered to have consented to risk if they acted under a compelling legal, social, or moral duty to rescue persons or property, and their conduct was reasonable.

Contributory Negligence

A partial defence where the defendant establishes that the claimant's own carelessness contributed to their damage, leading to a reduction in damages rather than total dismissal of the claim.

Law Reform (Contributory Negligence) Act $1945$

The statute governing the effects of contributory negligence, specifically Section $1(1)$, which allows for damages to be reduced to such extent as the court thinks just and equitable based on the claimant's share in responsibility.

Assessment of Reductions

The court assesses two factors when reducing damages for contributory negligence: culpability (relative blameworthiness of the parties) and causation (the extent to which the claimant's carelessness contributed to the loss).

Froom v Butcher [$1975$] Seatbelt Scale

A tariff for damage reductions: $25\%$ reduction if the injury would have been avoided, $15\%$ if the injury would have been less severe, and $0\%$ if wearing the seatbelt would have made no difference.

Capps v Miller [$1989$]

A case in which the Court of Appeal adopted the same tariff of reductions for motorcyclists failing to wear crash helmets as those established for seatbelts in Froom v Butcher.

Owens v Brimmell [$1997$]

The authority that passengers who accept lifts from drivers they know to be drunk, or who get too drunk to appreciate the driver's state after drinking together, will have their damages reduced for contributory negligence.

Standard of Care for Children

In contributory negligence, a child's conduct is measured against what is reasonably expected of an ordinary child of that same age, as seen in Gough v Thorne [$1966$] regarding a $13½$ year old girl.

Rescuers and Contributory Negligence

The principle from Baker v TE Hopkins & Son Ltd [$1959$] stating that a rescuer is judged against a reasonable rescuer and will only be found contributorily negligent if they show a "wholly unreasonable disregard" for their own safety.

Agony of the Moment

A principle from Jones v Boyce [$1814$--$23$] where a claimant is not found contributorily negligent if they act in a way that was a reasonable response to imminent danger created by the defendant.

Illegality (ex turpi causa non oritur actio)

A complete defence translating to "no action arises from a disgraceful cause," which applies when there is a very close connection between the claimant's illegal activity and the injury they suffer.

Pitts v Hunt [$1990$]

A leading case on the defence of illegality where a claimant's action failed because the reckless driving causing the injury was an inherent part of a joint criminal enterprise involving both the claimant and the defendant.