Tort Law - Defences to Negligence

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  • Created by: Calgary
  • Created on: 10-05-12 16:47

Note: As exams are impending, notes are becoming increasingly frantic - these will only be useful in conjunction with a good textbook or revision book, as these notes are largely the product of my own lecture and tutorial work... GOOD LUCK!

Defences to Negligence

Assuming all elements of negligence are established, D will be held liable to C unless he can plead a defence. This may involve negating D's liability altogether or it may just reduce it.

3 Key defences:  

  • Contributory Negligence
  • Voluntary Assumption of Risk
  • Illegality

Contributory Negligence: This was formerly a complete defence, but this was eroded by the last opportunity rule (meaning that the last person able to avoid the danger avoided being held liable altogether) Legislation now ensures sharing of responsibility:

  • Law Reform Act (Contributory Negligence) 1945:
  • This means D can remain partly liable despite negligence from C, does not negate a claim.
  • Where there is negligence on part of C and D, court can make apportionment of damage. Reduce damages available to C by a percentage thought to be 'just and reasonable'.

Elements of CN:

  • D must prove that 1) despite foreseeable risk of injury, 2) C failed to take reasonable care for own safety and 3) this caused damage to C.
  • Jones v Livox Quarries, Lord Denning: 'just as actionable negligence requires foreseeability of harm to others, so contributory negligence requires the foreseeability of harm to oneself.'

Failure in Care:

  • Objective test, turns on what reasonable person would do in C's position.
  • Weighs risk of injury against cost and practicality of taking precautions
  • In taking care, C must have regard to possible failures of others even where these failures would involve a breach of law.
  • C who intentionally harms self may be guilty of CN since reasonable person

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