#5375 - Defences In Tort Notes - Tort Law

• Law Reform (Contributory Negligence) Act 1945 – 1(1) – If C part responsible for the damage done then damages are reduced as the court thinks just and equitable provided: (a) this won’t defeat any defence under a contract, and (b) where damages under contract are limited, these will not be exceeded.

• Jones (1816) – Negligence of driver meant C had to jump from coach – he broke his leg.

Lord Ellenborough – If I place a man in a situation that he must adopt a perilous alternative, I am responsible for the consequences.

• Froom (1976) – C was injured when car struck by D’s. Injuries exacerbated by C choosing not to wear a seatbelt.

Lord Denning MR - C is guilty of contributory negligence if he ought reasonably have foreseen that if he didn’t act as a reasonable, prudent man he might be hurt. Here we must blame C for part of damage attributable to not wearing a belt. In so far as the belt would have reduced damage, damages must be reduced. If belt would all but prevent damage we will reduce damages by 25%, where it would significantly reduce damage we will reduce by 15% [where do figures come from?].

• Fitzgerald (1989) – F crossed road on red light. He was struck by L’s car and thrown into the path of P’s car, both had been negligent.

Court – must split damages that would have been awarded to a non-negligent C between the defendant and the contributory claimant.

• Reeves (1999) – Police had duty of care to look after C’s welfare whilst in custody. C killed himself.

Court – C was contributed to negligence by deliberately harming self so damages were reduced by 50%. Exception to the rule that deliberate acts of a person of sound mind taking advantage of D’s negligence would destroy causative link.

Exclusion of Liability.

• Unfair Contract Terms Act 1973 – 1(1) - Neg is breach of (a) obligation arising from terms, (b) common law duty, and (c) Occupiers liability Act.

1(3) – s2-7 apply to business liability arising from (a) things done in the course of business, or (b) occupation of business premises.

1(4) – Mens rea irrelevant in breach.

2(1) – can’t by reference to term or notice restrict liability for personal injury resulting from negligence.

2(2) – to exclude for normal negligence it must be reasonable.

2(3) – awareness of such terms isn’t acceptance of them.

11(1) – reasonable = if fair and reasonable in circumstances that are reasonably known to D.

Consent (Volenti non fit injuria).

• Dann (1939) – C injured in accident by driver she knew was drunk. She had opportunity to leave car when another had. She said “if something is going to happen it will”.

Court – No defence of consent – C was on a routine day trip to London with a driver who was not drunk until late in the day, to leave company would have caused offence.

• Baker (1959) – C died whilst trying to save 2 men who had fallen down a well due to D’s negligence.

Court – A rescuer doesn’t consent to D’s negligence, which has already taken place. It was a natural and probable consequence of D’s acts that someone would attempt to rescue his victims.

• Imperial Chemicals Industries (1965) – C’s broke statutory regs and tested detonators with short wires. Explosion injured both. D had lectured his workers on this. C only had to wait ten minutes for the relevant equipment.

Lord Reid – The defence of consent is dying since contributory negligence is available up to 100%. But approximating the two is wrong – where C has accepted risk wilfully he should not be compensated. Defence found here!

• Nettleship (1971) – D was careful driver but failed to straighten out after turn and hit lamp. C, instructor, injured.

Lord Denning MR – for consent C must have expressly or impliedly agreed to waive any claim due to D’s lack of reasonable care or a failure to meet standards imposed by law. In C checking insurance obviously she had not consented.

• Morris (1991) – D + C drunk, they took off in D’s plane and crashed. C helped to fuel and prepare plane and knew D was drunk.

Fox LJ – C, knowing D has driven negligently, doesn’t consent to future negligence. Volenti applies where, after risk is created by D, C assumes it voluntarily. C may as well have been tinkering with a bomb in this case so consent is found.

Illegality.

• Criminal Justice Act 2003 – 329 – Person acting in self-defence can’t be liable for trespass against person when C is convicted of criminal offence if his act wasn’t grossly disproportionate or he believed act was necessary to defend self/other, protect or recover property, prevent offence, or apprehend for conviction.

• Pitts (1991) – C...