9084 · 4.4.1
Defences flashcards
Revision flashcards for Cambridge 9084 Defences (syllabus 4.4.1). Flip, recall, then mark a real past-paper question.
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Volenti non fit injuria?
Complete defence — C voluntarily and knowingly accepts risk of harm; no claim if satisfied (Morris v Murray — passenger in doomed flight).
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Contributory negligence (LRA 1945 s1)?
Partial defence — damages reduced to extent C's fault contributed to damage; apportionment by court.
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Volenti vs contributory negligence?
Volenti = full bar (accepted entire risk); contributory negligence = partial reduction (shared blame).
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Ex turpi causa?
Illegal act defence — C cannot profit from own wrong; courts weigh public policy (Pitty v British Railways — not automatic bar).
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Consent in trespass to person?
Valid consent (medical treatment, sport within rules) defeats battery — must be informed and freely given.
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Smith v Baker?
Volenti not established merely by continuing dangerous work — need full knowledge and free acceptance of specific risk.
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What are the three essential elements for the defence of 'volenti non fit injuria'?
1. Agreement to the risk (express or implied). 2. Full knowledge of the nature and extent of the risk. 3. Voluntary choice by the claimant, free from compulsion.
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What is the legal effect of a successful plea of contributory negligence?
It is a partial defence. The court will reduce the claimant's damages to the extent it considers 'just and equitable' having regard to the claimant's share in the responsibility for the damage, under the Law Reform (Contributory Negligence) Act 1945.
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In what situation can the defence of 'volenti' NOT be used in a road traffic accident case?
Under section 149 of the Road Traffic Act 1988, a driver cannot use the defence of 'volenti' against a passenger to avoid liability for which compulsory third-party insurance is required.
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What was the principle established in Froom v Butcher (1976) regarding contributory negligence?
Failing to wear a seatbelt, if it contributes to the injuries sustained, amounts to contributory negligence. Lord Denning suggested guidelines for reductions: 25% if the seatbelt would have prevented all injury, 15% if it would have reduced it, and 0% if it would have made no difference.
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Distinguish between the defences of necessity and statutory authority.
Necessity is a common law defence where the defendant's tortious act was necessary to prevent greater harm. Statutory authority is a defence where an Act of Parliament has authorised the defendant's conduct, and the harm is an inevitable result.
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What is the modern test for the illegality defence (ex turpi causa)?
Following Patel v Mirza (2016), the court considers a 'trio of considerations': (a) the underlying purpose of the prohibition which has been transgressed, (b) any other relevant public policies, and (c) whether denying the claim would be a proportionate response to the illegality.
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Why is the defence of 'volenti' rarely successful against rescuers?
Because a rescuer acting to save life or property from imminent danger is not considered to be exercising a free choice. Their intervention is a foreseeable consequence of the defendant's negligence, not a true acceptance of the risk (Haynes v Harwood).
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What principle did Jones v Livox Quarries establish for contributory negligence?
The claimant's fault must contribute to the 'damage' suffered, not necessarily the accident itself. The claimant was contributorily negligent for riding on the towbar of a vehicle, as he exposed himself to the particular danger of being crushed from behind.
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When will the defence of statutory authority fail?
It will fail if the damage was not an inevitable consequence of the authorised act, or if the defendant was negligent in carrying out their statutory powers (Geddis v Proprietors of Bann Reservoir). The statute authorises the act, not its negligent performance.