Defences for Tort of negligence

Contains the defences of Consent and Contributory negligence for AQA Law 04 paper on Tort

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Jessica Powell Monday, 20 February 2012
Defences
Consent:
`No injury can be done to a willing person'
It is a complete defence.
To prove must show that:
o C knows there is a risk of D acting in a negligent way.
Morris v Murray ­ The claimant went up in a light aircraft with a pilot who had drunk around
17 whiskies, the plane crashed. The Claimant was unsuccessful fully aware of the risk and
continued regardless.
o C must freely consent to the risk.
o Employers cannot usually plead that an employee consents
Smith v Baker ­ C was working at a rock face and every day a crane swung large rocks over
him. He complained to his employer but they ignored him. Claimant was injured by a falling
rock. Claim was successful,
Knowing the risk is not the same as consenting to it, C had little choice but to continue
working.
o Rescuers may feel morally or legally obliged to rescue someone and therefore their consent is not
freely given.
Haynes v Harwood ­ Due to D's negligence a horse was allowed to run amok in a busy
street. C was injured when tried to stop the horse. D argued that C had consented as C had
chosen to get involved. But he felt morally obliged to try and help people in danger.
Contributory Negligence ­
Contributory Negligent Act 1945
o Partial defence
o Total damages are calculated then reduced.
What needs to be shown:
o Don't need to show that C owed a duty of care to D
o That the claimant's behaviour had fallen below that of a reasonable man and that this behaviour
contributed to the claimant's loss.
Applied in two ways:
o Claimant is partly to blame for the accident happening.
Brannon v Airtours - a tourist was attending a holiday organised by D. C climbed on a table
in order to escape the room and hit his head a low hanging fan. D arranged the room so it
was difficult for people to get out without climbing on furniture. C was warned not to stand
on the table. Lost 50% of damages.
o Claimant is not to blame for the accident but Cs actions made the injuries or losses worse than they
should have been.
Froom v Butcher ­ didn't wear seatbelt. Lost 15 ­ 25% of damages.
O'Connell v Jackson - was riding a motorbike without wearing a crash helmet.

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