5 - TORT - Defences

Question 1

What possible defences are there for negligence & what type of defence are they?

Answer 1

• Consent: complete defence 🤝
• Necessity: complete 🚨
• Illegality: complete 👮
• Contributory Negligence: partial 🤡

Question 2

What are the requirements for consent defence?

Answer 2

1. Mental capacity 🤪
2. Full knowledge of risks🧠
3. Agreed to risk of injury 🤝
4. Voluntarily 🤗
   - For sport, players consent to risks inherent in that sport
   - Cannot be used by motorists with claims from passengers

Question 3

What cases are there for consent?

Answer 3

C was drunk and accepted to fly with drunken pilot - consented soo obviously risky 🍻👨‍✈️🛩️

C was passenger of drunk driver - knowing of risk didn’t imply consent of risk🍻🚙😵‍💫🙄

C hit by a rock at work - Knew of risk but did not consent (v. hard for employee to consent).🗿🤕

Dr went down a mine to save workmen but died from fumes. Agreement was not voluntary as acted out of desire to save lives. ⛏️🕳️🦸😶‍🌫️☠️

Question 4

What are the requirements for an illegality defence?

Answer 4

C involved in illegal act at time loss suffered
1. C done illegal act
2. Consider: underlying purpose of prohibition; relevant public policy; is denial of claim proportionate to illegality
Where loss caused directly by illegal act, defence applies - where just context, won’t apply

Question 5

What cases are there for illegality?

Answer 5

• D gave C PTSD. C went on to murder then sued D for their loss of earnings whilst in prison. Not allowed - 🤪🗡️👨‍🏫
• D crashed with C whilst transporting cannabis. Defence not available as crash wasn’t sufficiently connected to criminal act. Not allowed 🚬🚖💥
• C rode pillion on D’s motorbike after encouraging D to ride - Defence allowed as crime directly related to injury🍻🏍️💥😬
• sue for return of money sent for insider trading - Defence not available. 🧑‍💻🤑

Question 6

What are the requirement for a defence of contributory negligence?

Answer 6

C has some responsibility for damage suffered & deduction made to damages to reflect this
- C failed to take reasonable steps for own safety (that of a reasonable & prudent person)
- Failure contributed to damage

Question 7

What are the cases for contributory negligence?

Answer 7

• passenger of drunken driver
  🍻🛞
• used toilet roll holder to try and escape from toilet cubicle
  🚽🧻🤪🤒
• jumped off run-away coach not negligent as D had caused the emergency
  🐴🤠🤬😉

Question 8

What allowances are there for the C for contributory negligence?

Answer 8

• C placed in emergency 🚨 🦸‍♂️
• C is a child (take age into account) 👶

NOTE:

Rescuers generally protected unless created the risk
Nature of duty considered

Question 9

What is required to prove a necessity defence?

Answer 9

1. Acted in an emergency to prevent harm to C, 3rd party or themselves
2. They didn’t cause the emergency

Question 10

What is vicarious liability?

Answer 10

Where one party is held liable for torts of another, because of their specific relationship - here in employer context

Question 11

What test is applied for vicarious liability?

Answer 11

1. Tort committed (by employee)
2. Employee is an employee of employer, or in a relationship akin to employment
3. Tort committed in course of employment

Question 12

What factors are considered when identifying an employment relationship?

Answer 12

• Remuneration & mutuality of obligations: employee being paid & employer providing work that the employee must do (0 hour contracts unlikely to be held as employment)
• Control: the more control, the likelier an employee relationship
• All other contractual factors consistent with employment e.g. tools & equipment provided; tax/PAYE treatment; benefits

Question 13

What factors are considered for doubtful cases, to determine a relationship akin to employment?

Answer 13

• sufficiently analogous to employment to make it fair, just & reasonable
• Employer more likely to be able to compensate C
• Tort committed due to activity undertaken on employers behalf
• under employer’s control
• activity part of employer’s business activity

Question 14

Where an employer lends an employee, who is vicarious liable?

Answer 14

Still the original employer (although both employers could be)

Question 15

What test is applied to show the tort was committed in course of employment? (for vicarious liability)

Answer 15

• What functions entrusted to employee?
• Was there sufficient connection between position in which they were employed & the wrongful conduct to make it fair, just & reasonable to hold employer liable?
• Lunch breaks reasonably expected; are they going about employer’s business at time?
• If act unauthorised/specifically prohibited, seen as ‘frolic of their own’

Question 16

Delete

Answer 16

Yes