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95 Cards in this Set
- Front
- Back
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what are the 3 ways you can deny liability for a tort |
deny elements of a tort deny facts cf. technical defences |
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what are examples of defences |
statutory authority act of god justification contracting out limitation |
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what subcategories fall under justification |
self defence protection of property reasonable punishment of child reasonable necessity defamation |
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what are four examples of self harming conduct by claimants |
intervening acts consent and volenti illegality contributory negligence |
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what is a useful and powerful defence in the contect of international torts |
consent - but quite rare |
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whats the test for consent |
did the victim consent freely to D’s intentional acts |
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what happens if consent can be established |
exitnguishes D’s liability |
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what is voluntary assumption of risk |
C knows of risk of breach and voluntarily incurs whole risk |
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what do you need to be able to show for voluntary assumption of risk |
C has to perceive the danger and appreciate it fully and voluntarily accept |
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what act excludes volenti for passengers |
Road Traffic Act s.149 |
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in what case did a woman slide down the bannisters in a wetherspoons as an example of volenti |
Geary v JD Wetherspoon |
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how is fault defined by the act |
negligence, breach of statutory duty or other act or omission which gives rise to a liability in tort or would, apart from this Act give rise to the defence of contrib neg |
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what is necessary to show to be successful under fault for contrib neg |
need to show that C’s damage was partly his own fault dont need to show C owed a duty to D |
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what case says ‘fault’ can be a deliberate act of self injury by C because contrib neg is a description of C’s conduct not his state of mind |
Reeves v Commissioner of Police of the Metropolis |
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how often is the volenti defence successful |
quite rarely |
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what is illegality by the claimant |
theres no duty owed by one participant in illegal enterprise to another joint participant where not possible to determine the standard of care which should be observed |
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at common law what kind of defence is contributory negligence |
a complete one |
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what is the doctrine of last opportunity |
the party who had the last opportunity to avoid the accident and negligently failed to take it was treated as being solely responsible |
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what case is an example of contributory negligence and the doctrine of last opportunity |
Davies v Mann where C’s donkey was killed by a negligent driver altho C was negligent for letting the donkey graze on the road, D could’ve avoided it |
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what case stretched the last opportunity doctrine to include cases where D didnt have the last opportunity to avoid disaster but would have if he had exercised a due care |
British Columbia Electric Railway v Loach |
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what eliminated the duty of last opportunity and what was it replaced with |
swept away by Contributory Negligence Act 1945 replaced by a regime that gave the courts power to apportion responsibility for the damage between the parties |
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what changes did s1(1) of the contributory negligence act 1945 make |
if you suffer as a result of ur own fault or partly because of ur own fault the damages recoverable will be reduced to such an extent as the court thinks is just and equitable |
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what is the contributory negligence act 1945 sectioned into |
fault contribution damage apportionment |
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in what case did a woman slide down the bannisters in a wetherspoons as an example of volenti |
Geary v JD Wetherspoon |
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how is fault defined by the act |
negligence, breach of statutory duty or other act or omission which gives rise to a liability in tort or would, apart from this Act give rise to the defence of contrib neg |
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what is necessary to show to be successful under fault for contrib neg |
need to show that C’s damage was partly his own fault dont need to show C owed a duty to D |
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what case says ‘fault’ can be a deliberate act of self injury by C because contrib neg is a description of C’s conduct not his state of mind |
Reeves v Commissioner of Police of the Metropolis |
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how often is the volenti defence successful |
quite rarely |
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what is illegality by the claimant |
theres no duty owed by one participant in illegal enterprise to another joint participant where not possible to determine the standard of care which should be observed |
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at common law what kind of defence is contributory negligence |
a complete one |
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what is the doctrine of last opportunity |
the party who had the last opportunity to avoid the accident and negligently failed to take it was treated as being solely responsible |
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what case is an example of contributory negligence and the doctrine of last opportunity |
Davies v Mann where C’s donkey was killed by a negligent driver altho C was negligent for letting the donkey graze on the road, D could’ve avoided it |
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what case stretched the last opportunity doctrine to include cases where D didnt have the last opportunity to avoid disaster but would have if he had exercised a due care |
British Columbia Electric Railway v Loach |
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what eliminated the duty of last opportunity and what was it replaced with |
swept away by Contributory Negligence Act 1945 replaced by a regime that gave the courts power to apportion responsibility for the damage between the parties |
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what changes did s1(1) of the contributory negligence act 1945 make |
if you suffer as a result of ur own fault or partly because of ur own fault the damages recoverable will be reduced to such an extent as the court thinks is just and equitable |
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what is the contributory negligence act 1945 sectioned into |
fault contribution damage apportionment |
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in what case did a woman slide down the bannisters in a wetherspoons as an example of volenti |
Geary v JD Wetherspoon |
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how is fault defined by the act |
negligence, breach of statutory duty or other act or omission which gives rise to a liability in tort or would, apart from this Act give rise to the defence of contrib neg |
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what is necessary to show to be successful under fault for contrib neg |
need to show that C’s damage was partly his own fault dont need to show C owed a duty to D |
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what case says ‘fault’ can be a deliberate act of self injury by C because contrib neg is a description of C’s conduct not his state of mind |
Reeves v Commissioner of Police of the Metropolis |
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what case says that children are only expected to showthe degree of care that could reasomably be expected of a child of that age |
Yachuk v Oliver Blais Co Ltd |
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how often is the volenti defence successful |
quite rarely |
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what is illegality by the claimant |
theres no duty owed by one participant in illegal enterprise to another joint participant where not possible to determine the standard of care which should be observed |
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at common law what kind of defence is contributory negligence |
a complete one |
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what is the doctrine of last opportunity |
the party who had the last opportunity to avoid the accident and negligently failed to take it was treated as being solely responsible |
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what case is an example of contributory negligence and the doctrine of last opportunity |
Davies v Mann where C’s donkey was killed by a negligent driver altho C was negligent for letting the donkey graze on the road, D could’ve avoided it |
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what case stretched the last opportunity doctrine to include cases where D didnt have the last opportunity to avoid disaster but would have if he had exercised a due care |
British Columbia Electric Railway v Loach |
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what eliminated the duty of last opportunity and what was it replaced with |
swept away by Contributory Negligence Act 1945 replaced by a regime that gave the courts power to apportion responsibility for the damage between the parties |
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what changes did s1(1) of the contributory negligence act 1945 make |
if you suffer as a result of ur own fault or partly because of ur own fault the damages recoverable will be reduced to such an extent as the court thinks is just and equitable |
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what is the contributory negligence act 1945 sectioned into |
fault contribution damage apportionment |
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in what case did a woman slide down the bannisters in a wetherspoons as an example of volenti |
Geary v JD Wetherspoon |
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how is fault defined by the act |
negligence, breach of statutory duty or other act or omission which gives rise to a liability in tort or would, apart from this Act give rise to the defence of contrib neg |
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what is necessary to show to be successful under fault for contrib neg |
need to show that C’s damage was partly his own fault dont need to show C owed a duty to D |
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what case says ‘fault’ can be a deliberate act of self injury by C because contrib neg is a description of C’s conduct not his state of mind |
Reeves v Commissioner of Police of the Metropolis |
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what case says that children are only expected to showthe degree of care that could reasomably be expected of a child of that age |
Yachuk v Oliver Blais Co Ltd |
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what case says that disabled people are also only expected to show the degree of care that could reasonably be expected of a person with a certain disability |
Haley v London Electricity Board |
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how often is the volenti defence successful |
quite rarely |
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what is illegality by the claimant |
theres no duty owed by one participant in illegal enterprise to another joint participant where not possible to determine the standard of care which should be observed |
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at common law what kind of defence is contributory negligence |
a complete one |
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what is the doctrine of last opportunity |
the party who had the last opportunity to avoid the accident and negligently failed to take it was treated as being solely responsible |
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what case is an example of contributory negligence and the doctrine of last opportunity |
Davies v Mann where C’s donkey was killed by a negligent driver altho C was negligent for letting the donkey graze on the road, D could’ve avoided it |
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what case stretched the last opportunity doctrine to include cases where D didnt have the last opportunity to avoid disaster but would have if he had exercised a due care |
British Columbia Electric Railway v Loach |
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what eliminated the duty of last opportunity and what was it replaced with |
swept away by Contributory Negligence Act 1945 replaced by a regime that gave the courts power to apportion responsibility for the damage between the parties |
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what changes did s1(1) of the contributory negligence act 1945 make |
if you suffer as a result of ur own fault or partly because of ur own fault the damages recoverable will be reduced to such an extent as the court thinks is just and equitable |
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what is the contributory negligence act 1945 sectioned into |
fault contribution damage apportionment |
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why are courts reluctant to find contrib neg by the employee if the employer is in breach of a statutory duty to his employees |
because it is part of an employees duty to protect employees from the consequences of their own inattention |
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why are courts reluctant to find contrib neg by the employee if the employer is in breach of a statutory duty to his employees |
because it is part of an employees duty to protect employees from the consequences of their own inattention |
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what case shows that courts are reluctant to reduce the damages of someone injured in the act of rescue but may do so if a professionaly trained rescuer is careless as to his own safety |
Harrison v British Railways Board |
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why are courts reluctant to find contrib neg by the employee if the employer is in breach of a statutory duty to his employees |
because it is part of an employees duty to protect employees from the consequences of their own inattention |
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what case shows that courts are reluctant to reduce the damages of someone injured in the act of rescue but may do so if a professionaly trained rescuer is careless as to his own safety |
Harrison v British Railways Board |
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what case shows that if D creates a dangerous emergency in which the claimant is forced to make an instant choice between ‘alternative dangers’, C is not penalized for choosing the wrong one |
Jones v Boyce |
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why are courts reluctant to find contrib neg by the employee if the employer is in breach of a statutory duty to his employees |
because it is part of an employees duty to protect employees from the consequences of their own inattention |
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what case shows that courts are reluctant to reduce the damages of someone injured in the act of rescue but may do so if a professionaly trained rescuer is careless as to his own safety |
Harrison v British Railways Board |
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what case shows that if D creates a dangerous emergency in which the claimant is forced to make an instant choice between ‘alternative dangers’, C is not penalized for choosing the wrong one |
Jones v Boyce |
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under contribution, how do we assess whether negligence was causally relevant |
its a question of fact but often more a matter of speculation than proof |
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why are courts reluctant to find contrib neg by the employee if the employer is in breach of a statutory duty to his employees |
because it is part of an employees duty to protect employees from the consequences of their own inattention |
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what case shows that courts are reluctant to reduce the damages of someone injured in the act of rescue but may do so if a professionaly trained rescuer is careless as to his own safety |
Harrison v British Railways Board |
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what case shows that if D creates a dangerous emergency in which the claimant is forced to make an instant choice between ‘alternative dangers’, C is not penalized for choosing the wrong one |
Jones v Boyce |
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under contribution, how do we assess whether negligence was causally relevant |
its a question of fact but often more a matter of speculation than proof |
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what case is an example where it is difficult to establish causation as a matter of fact and is more speculated |
Stapley v Gypsum Mines Ltd man goes back to work w permi of boss killed by roof |
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when does damage under contrib neg apply & example |
when the claimant’s fault was partly the cause of his damage so not wearing a helmet would make the injuries more serious if not the accident more likely |
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when does damage under contrib neg apply & example |
when the claimant’s fault was partly the cause of his damage so not wearing a helmet would make the injuries more serious if not the accident more likely |
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what is not clear about the damages category of contributory negligence |
how wide the category of contrib neg is |
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what is apportioment according to s51(1) of the Contrib Neg Act |
damages reduced to such extent as the court thinks just and equitable |
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what is apportioment according to s51(1) of the Contrib Neg Act |
damages reduced to such extent as the court thinks just and equitable |
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what two ways do courts assess responsibility |
comparative blameworthiness comparative causative significance |
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what is apportioment according to s51(1) of the Contrib Neg Act |
damages reduced to such extent as the court thinks just and equitable |
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what two ways do courts assess responsibility |
comparative blameworthiness comparative causative significance |
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how are most apportionments made |
via general impression and matter not often argued |
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what case shows disagreements in the court of appeal on whether a finding of 100% contrib neg is permissible |
Pitts v Hunt |
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what case shows disagreements in the court of appeal on whether a finding of 100% contrib neg is permissible |
Pitts v Hunt |
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what happened in Reeves v Commissioner of Police of the Metropolis |
police failed to prevent a person in custody from committing suicide. Decided that the suicide was 50% responsible for his own death |
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what case shows disagreements in the court of appeal on whether a finding of 100% contrib neg is permissible |
Pitts v Hunt |
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what happened in Reeves v Commissioner of Police of the Metropolis |
police failed to prevent a person in custody from committing suicide. Decided that the suicide was 50% responsible for his own death |
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what was held in Froom v Butcher |
CA said that if the damage wouldve been prevented altogether by wearing a seatbelt the reduction for contrib neg would be 25% but if thr seatbelt would make the injury less severe the reduction would be 15% |
