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Need help on defences and remedies of tort law?
- Module
- A2 Unit G157 - Law of Torts
- Institution
- OCR
Notes on the defences and remedies required for tort law.
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DefencesContributory Negligence: Volenti non fit injuria (Consent):
• Law Reform (Contributory Negligence) Act 1945 provides that • Complete defence
contributory negligence is a partial defence. • Absolve the defendant of all legal consequences of their actions, it
• That means the courts can apportion loss between the requires a freely entered and: ‘voluntary agreement by the claimant,
parties, making a fairer outcome than a complete defence - in full knowledge of the circumstances.’
Revill v Newbery (1996): • Elements:
• S1(1) Law Reform (Contributory Negligence) Act 1945 • Voluntary:
provides that: • The agreement must be voluntary and freely entered.
• ‘where a person suffers damage as a result partly of his own fault and • If the claimant is not in a position to exercise free choice, the defence will not
partly the fault of another(s), a claim shall not be defeated by reason succeed.
of the fault of the person suffering damage.’ • This element is most commonly seen in relation to employment relationships,
• Requirements: rescuers and suicide.
• Burden of proof is on the defendant to demonstrate the following: • Agreement:
• Claimant failed to take proper care in the circumstances for their own • This may be express or implied.
safety. Lack of proper care for own safety is not the same as ‘breach of • Implied agreement may exist where the claimant demonstrates a willingness to
the duty of care.’ It varies, and all circumstances are taken into account, accept the legal risks as well as physical risks.
including the age of claimant – Gough v Thorns (1996). • Nettleship v Weston (1971): Knowledge of the risk of injury is not enough.
• Failure to take care was a contributory cause of the damage suffered. Claimant must agree expressly or impliedly to waive any claim for injury that
This has included: may befall him due to the lack of reasonable care by the defendant.
• Failure to wear seat belt – Froom v Butcher (1976) • Key case – Smith v Charles Baker and Sons (1891)
• Failure to wear a helmet on a motorcycle – O’Connell v Jackson • Knowledge:
(1971)
• The claimant must have had knowledge of the full nature and extent of the risk
• Failure to fasten a helmet on motorcycle – Capps v Miller (1989)
that they ran – Morris v Murray (1991)
• Exposing oneself to danger by inappropriate use of a vehicle –
Davies v Swan Motor co. (1949) and Jones v Livox Quarries (1952) • A rescuer is not regarded as having freely and voluntarily accepted the risk –
Haynes v Harwood (1935)
• Suicide – Reeves v Commissioner of Police of the Metropolis (2000)
• A participant in sporting events/games is taken to consent to the risk of injury
• Failure to follow safety instructions – Stapley v Gypsum Mines
which occurs in the course of the ordinary performance of the sport – Condon
(1953)
v Basi (1985)
• Considerable overlap between contributory negligence and
volenti (Consent) which is a complete defence. However, since • Volenti non fit injuria and occupier’s liability:
1945, the courts have been less willing to make a finding of • Section 2(5) of the Occupiers’ Liability Act 1957 and s1(6) of the
consent. Instead they prefer to apportion loss between the Occupiers’ Liability Act 1984 provide that occupiers owe no duty in
parties, rather than taking the ‘all or nothing’ approach of respect of risks willingly accepted by a person.
consent. • No need to establish an agreement.
• Key case – Titchener v British Railways Board (1983)
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