Defences In Tort Notes

• Law Reform (Contributory Negligence) Act 1945 – 1(1) – If C part responsible for the damage done then damages are reduced as the court thinks just and equitable provided: (a) this won’t defeat any defence under a contract, and (b) where damages under contract are limited, these will not be exceeded.

• Jones (1816) – Negligence of driver meant C had to jump from coach – he broke his leg.

Lord Ellenborough – If I place a man in a situation that he must adopt a perilous alternative, I am responsible for the consequences.

• Froom (1976) – C was injured when car struck by D’s. Injuries exacerbated by C choosing not to wear a seatbelt.

Lord Denning MR - C is guilty of contributory negligence if he ought reasonably have foreseen that if he didn’t act as a reasonable, prudent man he might be hurt. Here we must blame C for part of damage attributable to not wearing a belt. In so far as the belt would have reduced damage, damages must be reduced. If belt would all but prevent damage we will reduce damages by 25%, where it would significantly reduce damage we will reduce by 15% [where do figures come from?].

• Fitzgerald (1989) – F crossed road on red light. He was struck by L’s car and thrown into the path of P’s car, both had been negligent.

Court – must split damages that would have been awarded to a non-negligent C between the defendant and the contributory claimant.

• Reeves (1999) – Police had duty of care to look after C’s welfare whilst in custody. C killed himself.

Court – C was contributed to negligence by deliberately harming self so damages were reduced by 50%. Exception to the rule that deliberate acts of a person of sound mind taking advantage of D’s negligence would destroy causative link.

Exclusion of Liability.

• Unfair Contract Terms Act 1973 – 1(1) - Neg is breach of (a) obligation arising from terms, (b) common law duty, and (c) Occupiers liability Act.

1(3) – s2-7 apply to business liability arising from (a) things done in the course of business, or (b) occupation of business premises.

1(4) – Mens rea irrelevant in breach.

2(1) – can’t by reference to term or notice restrict liability for personal injury resulting from negligence.

2(2) – to exclude for normal negligence it must be reasonable.

2(3) – awareness of such terms isn’t acceptance of them.

11(1) – reasonable = if fair and reasonable in circumstances that are reasonably known to D.

Consent (Volenti non fit injuria).

• Dann (1939) – C injured in accident by driver she knew was drunk. She had opportunity to leave car when another had. She said “if something is going to happen it will”.

Court – No defence of consent – C was on a routine day trip to London with a driver who was not drunk until late in the day, to leave company would have caused offence.

• Baker (1959) – C died whilst trying to save 2 men who had fallen down a well due to D’s negligence.

Court – A rescuer doesn’t consent to D’s negligence, which has already taken place. It was a natural and probable consequence of D’s acts that someone would attempt to rescue his...

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