Defences and Remedies
Defences
Consent
This is a full defence that nullifies the claim in its entirety, knowledge alone is not consent -
must be given freely and voluntarily and must show that:
1. Claimant had full knowledge of the nature and extent of risk.
2. Claimant willingly consented to accept the risk of being injured due to defendants’
negligence.
Employers will rarely succeed with consent defence as employees are acting under financial
pressure. Similarly, rescuers will often not if acting under legal or moral duty and their
actions were reasonable and probable consequence of the defendant’s negligence.
by statutory provision defence of consent cannot be relied on by the driver of a motor vehicle
in a claim by one of their passengers.
Illegality
Another complete defence that applies if there is a close relationship between illegal activity
and the injury suffered and it is contrary to public policy to allow the claimant remedy (must
be substantial offence).
Contributory negligence
A partial defence to reduce damages, must show that:
1. Carelessness on the claimant’s part, and,
2. That the carelessness has contributed to claimant’s damage.
When contributory negligence is found damages should be reduced to the extent the court
thinks just and equitable, having regarded the claimants share in responsibility for the damage
which takes into account a) culpability and b) causation - extent to which carelessness caused
damage.
Children = the parents actions don’t count it has to be the claimant themselves making things
worse.
Rescuers = only if they show a wholly unreasonable disregard for their own safety.
Dilema cases = if defendants actions put claimant in life and death imminent danger then
their instinctive actions or ‘agony of the moment’ will not be held against them in the for of
contributory negligence.
Defences
Consent
This is a full defence that nullifies the claim in its entirety, knowledge alone is not consent -
must be given freely and voluntarily and must show that:
1. Claimant had full knowledge of the nature and extent of risk.
2. Claimant willingly consented to accept the risk of being injured due to defendants’
negligence.
Employers will rarely succeed with consent defence as employees are acting under financial
pressure. Similarly, rescuers will often not if acting under legal or moral duty and their
actions were reasonable and probable consequence of the defendant’s negligence.
by statutory provision defence of consent cannot be relied on by the driver of a motor vehicle
in a claim by one of their passengers.
Illegality
Another complete defence that applies if there is a close relationship between illegal activity
and the injury suffered and it is contrary to public policy to allow the claimant remedy (must
be substantial offence).
Contributory negligence
A partial defence to reduce damages, must show that:
1. Carelessness on the claimant’s part, and,
2. That the carelessness has contributed to claimant’s damage.
When contributory negligence is found damages should be reduced to the extent the court
thinks just and equitable, having regarded the claimants share in responsibility for the damage
which takes into account a) culpability and b) causation - extent to which carelessness caused
damage.
Children = the parents actions don’t count it has to be the claimant themselves making things
worse.
Rescuers = only if they show a wholly unreasonable disregard for their own safety.
Dilema cases = if defendants actions put claimant in life and death imminent danger then
their instinctive actions or ‘agony of the moment’ will not be held against them in the for of
contributory negligence.
