A more recent version of these Defences To Negligence notes – written by Cambridge/Bpp/College Of Law students – is available here.
The following is a more accessble plain text extract of the PDF sample above, taken from our GDL Tort Law Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:
Defences to Negligence _______________________________________________________
Defences The burden of proof is on the defendant to raise a defence?Contributory negligence Volenti non fit injuria (consent) Ex turpi causa (illegality/public policy)
Contributory NegligencePartial defence
Law Reform (Contributory Negligence) Act gives caselaw statutory footing The defence must prove:
1. Claimant was at fault
2. Claimant's fault was a cause of the damage Froom v Butcher C was not wearing a seatbelt (it was not legal at the time though Parliament required new cars to be fitted with them) and was injured by D in a crash. Countervailing theory that not wearing a seatbelt was actually safe Held: to determine whether C was at fault, it had to be established whether her conduct fell below the reasonable standard. Lord Denning held that it was unreasonable to do so (this is SUBJECTIVE!) and recommends for future:25% quantum if there would have been no damage but for contributory negligence 15% quantum if there would have been a good deal less damage but for contributory negligence
Owens v Brimmell Getting in a car knowingly with drunk driver Held: this choice puts the claimant at fault. It is an objective standard - if C should have known D was drunk, then there is contributory negligence (thus it didn't matter that he was drunk) Badger v MOD C died of lung cancer which had been exacerbated by exposure to asbestos whilst working for D. He also smoked. Held: in determining contributory negligence, it was necessary to establish when a reasonable person would have stopped smoking - they held that is became
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