there are specilaised defences – defamation or nuisance action – have been consideed udner the appropriate tort.
some reference has already been made at various points to the defences listed below.
contributory negligence, consent and illegality
defendant mya pleaed that the claimant’s neglgence contributed to the injury
this is referred as contributory negligence
until 1945 a successful plea of contributory negligence was a complete defence
law reform contributory negligence act 1945 now provides for an apportionement of lablity between the claimant and the defendant
important issue in relation to this defence –
a—- claimant must have failed to take reasoanble vare for his safety but no question of pres existing duty of care arises. the contributory negligence must be a cause f the damage and the damage must be a reasonably foreseeable consequence of the contributoyr negligence.
the claimant’s neglgence may gave contributed to the accident itself. a motor cyclist failing to look out for ther vehcile for example
or may have contribued to the inirut ibnly – such as a drive failing to wear a seat belt
jones v boyce 1816
jones v livox quarries 1952
B……………….. apportionment works in two ways. the judge , MUST first determine the amount of damages payable if te claimant had not been negligent and then deduct a certain percentage to reflect the claimant’s contribution. it seems that the percentage may reflect both the relative blameworthiness of the parties. there e is modern authority for the view that damages cannot be reduced by 100 per cent. another defence might achieve that result,
stapley v gypsum mines 1955
pitts v hunt 1991
at first it seems obvious that someone who consents to the tort should not then turn round and sue. in practice hwoever it is complex and cotnroversial.. forst, three introductory discussiin points.
A…………. the role of consent varies from tort to tort
it has been referred to in tort of battery and defemation
in thes torts the application of the defence is straightforward
the patient who consents to the incision and excision necessary to remove an appendix is agreeing to the veryt hing that would otherwise be battery.
the position is v different when the tort invovled is negligence or a tort of strict liability. there is is usually called an assumption of risk
here the claimant cannot usually know in advance what is going to happen in the way that a patietn awaiting surgey does and thus the application of the defence is carefully cotnrolled
B………………… the defence of volenti non fit iniuria cannot operate until there has been a tort
this seems obious . but is foten overlooked by mistake
take the postions of a claiamnt who has a dangerous job. say on a fishing boat in the deep oceans. if the employers observe all safety regs and take teasonble care reuired by common law then no tort has been committed
then the claiamnt cannot sue and not beause of any consent to risks
the issue of consent only arises of there has beena breach of regs or of the cmmon law duty and it is argued that the claimant knew of this breach and nevertheless agreed to face that risk.
C———————- consent can operate int wo differrn ways .
sections 2 (1) and 2 (5) of the Occupier’s liability act 1957
scecion 2. 1 envisages the poccupier exlcldsuing liability by a notice saying ;;enter at your own risk.”
so that the visitor runs the legal risk of being unable to get compensatrion for any unjires
section 2.5 envisages the visitor incurijng the physical risk by corssing the defective bridge .
EXCLUSIONS OF LIABILITY
both common law and statute recognised the right of the defendantr to exclude liabilityby a suitably worded notice.
beside the occupiers’s liability act it was at one time common for drivers to have notices on the dashbaord of their care sauing ‘passengers travel at their own risk.’
the reason was that drve back them were compelled to insurre agains tliability to third parties outside the care but not against passnegrs. This changed in 1971
this right to exclude liability is stricly controleld and has been further constraised by statute
first exlcsuin caluses in contract are relevant
i. if the claiamnt kenw of its terms in advance
ii.. its terms clearly cover the situat that has occurred
iii. teh claiAMNT was free to choose where t taje the risk or not. burnett v british waterways 1973
the main statutory intervention has been the Unfair Ciontract terms atc 1977
section and 11 – remember that this does not just apply to exclusions operation gin the course of business.
this act is restricted to exclusion of liability arising in the course of business or on the premises occupied for the purpose of a business but is otherwise of general application
road traffic act 1988 section 149 (3) re enacting legislation 1971
prevent s car drivers excluding liability to passengers by ‘an antecedent agreement or understanding.’
there is also a law restricting the rights of employers in some circumstances to exclude their duties ti employees but the details are outside the scope of this course.
AGREEMENT TO FACE PHYSICAL RISKS
the principles in this area have mainly been worked out inas number of social contexts
A. employer and employee
the sciope of this defence in relation ebtween employer and employee is limited by the insistence of the courtts since the end of the 19 century that the employee must not only know of the danger but consent to ti
smith v baker 1891
the defence is still allowed bu weak. whay is the emplpyuer not allowed to rely on it much.
ICI v shatwell 1965
B car passanger and drunk driver, a learner of physically disabled
these cases can bee seen i 2 ways. that rh pssanegr shoudl be unable to sue because of the defence of conset
another is to say that the defenda owed only the stanrda of care to be epcted of a druknk a learner tc…
and only if the standard of rdinv has fallen below that elvel s ther a tort at all
english courts have tended to analyse it in the foemr way and the australib ciurt in the altter
dann v hamitlon 1939
insurnace commissioners v joyce 1948
nettleship v westonb 1971
cook v cook 1986
english corius eem to have th view tht the rtoad traffic act 1988 porevent this defenc ein road accident . it may allly to oter traffic accident
pitts v hunt 1991
morris v murray 1991
action by spectator in sprting event against organiser or competitor
here the court have reassned that there ws no breach od duty ebcause the defendant owbned a lesser duty appropirate to someone striving to succeed in a comeptitve activity
wooldridge v sumner 1963
white v blackmore 1972
it is unlikely that the defence will ever apply where the very thing that the defendant was under a duty to do was to protect the claimant against his won actions eg because the claimant as a suicide risk
reeves v commissioner of the police of the metropolis 2000