Tort Law Causation and Defences PDF

**Unit 2 -- Tort Law -- Causation and Defences** **Causation** - They're treating causation in a common-sense manner and that they're trying to satisfy the man in the street rather than the philosopher - This means that the arguments used are not always rigorously analysed and the dec...

**Unit 2 -- Tort Law -- Causation and Defences** **Causation** - They're treating causation in a common-sense manner and that they're trying to satisfy the man in the street rather than the philosopher - This means that the arguments used are not always rigorously analysed and the decisions reached may not always be easy to reconcile - Claimants must satisfy the judge on 3 points - They would not have been harmed if the defendant had not been negligent - No significant intervening event broke the chain of causation between the defendant's breach and the claimants suffering harm - The kind of harm suffered was reasonably foreseeable **The 'but for' Test** - If the claimant would have suffered harm regardless of what the defendant did, then its common sense to say that the defendants not the cause of the claimant's harm - 'But for the defendants act would the claimant have suffered harm?' - Leading cases -- *Barnett v Chelsea and Kensington Hospital* leading medical negligence case and *McWilliams v Sir William Arrol* illustrates a case where when the defendant argued that it was the probable behaviour of the claimant himself and not the defendants breach that as the true cause of the claimants harm - *Barnett v Chelsea & Kensington Hospital* - Barnett -- presented himself at the hospital feeling very unwell and later died - It was agreed by all parties that - The hospital owed him a duty of care - The wholly inadequate response of the hospital amounted to a breach of duty - However, it emerged that Barnett had unwittingly consumed a considerable amount of arsenic. The hospital claimed that even if its treatment had been appropriate he would have died anyway - *McWilliams v Sir Wiliam Arrol* - The claimant was a steel-erector. The defendant employers were obliged to prove such employees with safety harnesses. They failed to do so, and McWilliams fell to his death - However, he had a history of not wearing his harness, even when it was supplied **Industrial Disease** - There are times when it's impossible for the claimant to prove exactly what part the defendants breach played in the claimants injury - Must the claimants case always fail or if the claimant shows that the defendant's breach probably made a material contribution to harm suffered, should the claimant succeed - This issue is most see in the context of industrial diseases - *Bonnington Castings v Wardlaw* 1956 - Facts*:* - The claimant worked in a factor where he was exposed to two different sources of dust - One source was produced without negligence by his employers but the other source did arise from their negligence - Wardlaw suffered pneumoconiosis -- a lung disease. It wasn't possible to tell whether the disease would have been caused solely by the so called 'guilty' dust - Court Decision - The claimant could only establish that the guilty dust made a material contribution to the disease and the House of Lords decided that this was sufficient - McGhee v National Coal Board 1973 - Facts - In McGhee and the National Coal Board, the claimant was exposed to dust and dirt during the working day. The employers had a duty to provide showers, but did not do so - McGhee had to cycle home at the end of his shift covered in dust, and he eventually developed dermatitis.  - He couldn't establish how much difference the journey home actually made, but he could establish that it significantly increased the risk of his suffering dermatitis. - Court Decision - House of Lords decided that this was sufficient for the claimant to succeed against his employers - Mesothelioma Cases - Cancer cause by exposure to asbestos - Most difficult cases arose where the claimant had been exposed to asbestos by more than one former employer and so had to pursue more than one defendant. The defendants: - Accepted they owed a duty of care - They had breached it - But **[contested]** the issue of causation - Argued that the claimant **failed the 'but for' test.** The claimant couldn't show that the breach of any specific employer had cause their cancer -- it might have been triggered by other employers - *Fairchild* case came to the appellate courts on this exact point - Businesses who were vulnerable to claims feared huge payouts if a precedent was established in holding the employers liable - **Scenarios A -- D** - A. C cannot prove which of the defendants was responsible for triggering the mesothelioma. Therefore C fails the \'but for\' test. - B. It would be unfair to find any of the Ds liable for all C's damages because each D only exposed C to asbestos for a limited amount of time - C. All the Ds owed C a duty of care and all breached it. It is justifiable to ignore the technical problems of the \'but for\' test and find all them liable - D. As each D increased the risk of the claimant contracting mesothelioma it is justifiable to apply McGhee and find them all liable - E. If the decision must be unfair to one party, it is better to be unfair to the employer than the employee. - Court Decision - Court of Appeal agreed with the arguments for the defendants at A and B, it applied the 'but for' test strictly and concluded that the claims failed - The House of Lords disagreed -- decided that the claimants could succeed against any or all of the defendants - Some considered it to be an application of the rule in McGhee -- that each defendant had materially increased the risk of the claimants suffering mesothelioma - Others took the view that it was sometimes necessary (for justice) to depart from strict principles and if the decision was going to be unfair to anyone, it should be unfair to the businesses who breached their duty and not to the dying workers -- significant and consequences of the decision didn't stop with a decisions on liability - F. If all the Ds are found liable, any D who has to pay damages can seek a contribution from the others under the Civil Liability Contribution Act 1978 - G. If all the Ds are found liable, each D should only have to pay a proportion of the damages equal to the percentage of time for which that D exposed C to asbestos. - H. If Ds only had to pay damages based on the proportion of time for which they had exposed C to asbestos, C will only be fully compensated if all Ds can be found and are still solvent. - As a result of the decision in *Fairchild* mesothelioma victims sought out the surviving businesses who were solvent or those with solvent insurers and pressed their claims against these (any individual defendant could seek a contribution from any or all other defendants who were still solvent - Defendants being pursued argued it was unfair for a defendant who'd only exposed the claimant to risk for a short time to be liable for all damages. They proposed that each defendant should only pay damages based on the proportion of time for which it had exposed the claimant to the risk - The Courts Decision - The House of Lords considered this argument in a case *Barker v Corus* -- judgements looked carefully at the whole issue of suing someone who has increased the risk for the claimants loss - Such defendant have only increased the risk of harm to the claimant by a certain percentage -- should they only be liable to pay the same percentage of the claimants total damages - The House of Lords were persuaded by this argument and decided in favour of the defendants - In reaction -- swift reaction from Parliament who created a Statute -- Compensation Act 2006 -- which restored the pre-Barker legal position in mesothelioma cases (claimants to sue any defendant for the full extent of their losses) - However, the extent to which the House of Lords' reasoning in Barker will be applied in cases which do not involve mesothelioma is hotly debated, and adds another layer of complexity to arguments about causation. **Medical Negligence** - *Hotson v East Berkshire* 1985 - Hotson fell from a tree, suffering injuries which made it 75 per cent likely that he would be permanently disabled. So when he went to hospital he had a 25 per cent chance of recovery.  - At first he was negligently misdiagnosed by the hospital, and when the hospital finally diagnosed him correctly, he had lost any chance of avoiding permanent disability. The boy sued for the loss of his 25 per cent chance of recovery. - **Court Decision** - The Court of Appeal found in the boys favour but the House of Lords reversed their decision accepting the argument that, on the balance of probabilities -- it was the fall not the misdiagnosis that caused the permanent disability - *Wilsher v Essex* 1988 - The House of Lords were faced with a difficult problem. A baby was born very prematurely, was then negligently treated while in hospital -- a catheter was inserted into a vein rather than an artery and the baby subsequently became blind - The hospital argued that there were many possible causes of blindness in such premature babies and the hospitals error had simply added one more possible cause - **Courts Decision** - The House of Lords agreed that, on the balance of probabilities he claimant had not proved that the hospitals error caused the blindness - Hoston was decided more than 20 years ago and the House of Lords has since had the opportunity to review the law in the case of *Gregg v Scott* -- claimant argued that misdiagnosis had caused the loss of some chance of correct, life-prolonging treatment for cancer - The House of Lords confirmed that claims for the loss of chance of below 50% are not going to succeed in personal injury actions, however in cases of pure economic loss such claims will often be successful - The flexibility of judgments in medical negligence cases is well illustrated in *Chester v Afshar* 2003 - The claimant needed an operation on her spine. The patient asked about the risks, but the surgeon failed to warn her of a very small risk of serious injury. The operation was carried out carefully, but serious injury nonetheless occurred.  - The surgeon clearly owed a duty of care to advise of the risks and had breached it. But had his breach caused the harm? - Mrs Chester admitted that she would probably have gone ahead and had the operation, even if she had been properly warned. - **Courts Decision** - Despite Mrs Chester admitting that she would have probably gone ahead and had the operation even if warned, the court decided that the failure to warn had caused the harm - This seems illogical -- it appears that the court simply decided to find there was liability in spite of the hurdles posed by strict application of the rules of causation - Probably the most important thing is to understand the arguments that were used in all these causation cases, and to know which ones were persuasive in the House of Lords -- even if the decisions themselves may depend on the particular constitution of the court, and the facts and circumstances surrounding each case. **Breaking the Chain** - Sometimes its not a single even but a chain of them resulting in harm to the claimant - The court then has to consider whether any event subsequent to the tortious act of the defendant has broken the chain of causation -- hard to do ex. pile up on the motorway or when a series of mistakes leads to a specific disaster - **[Rules]** - An instinctive natural response will not break the chain - Nor will the negligent act of a third party provided that its foreseeable - And even the deliberate act of a third party wont break the chain, provided that it was foreseeable and that the defendant was responsible for the behaviour of the third party - Finally the claimants own behaviour will only break the chain if its unreasonable - An event which is considered by law to break the chain of causation is a new intervening act known as novus actus interveniens (NAI) - **Activity** - Question 1 a. A driver negligently jackknifes his lorry and blocks the road. Another driver stops to help.  b. A third also stops and illuminates the scene with the headlights of his lorry.  c. A fourth then arrives, driving too fast, smashes into the back of the third driver's lorry and shunts it forward.  d. It hits and kills the second driver. Is the original lorry driver the cause of the second driver's death? - Yes - No - Question 2 a. A car negligently crashes at the far end of a one way tunnel. The police attend.  b. The officer in charge at first forgets to stop drivers entering the tunnel. He then remembers and tells a police motorcyclist to drive down the tunnel in the wrong direction.  c. The motorcyclist is hit and injured by an oncoming car. Is the original driver liable for this injury? - Question 3 a. A claimant's leg has been negligently injured by a defendant and is in danger of giving way at any time.  b. The claimant is well aware of this, but decides to descend a steep stairway with no banister.  c. His injured leg gives way and he falls, breaking his ankle. Is the original defendant who injured the claimant's leg also liable for the broken ankle?  - Question 4 a. One foggy night on a dual-carriageway, a mini breaks down. The driver stops in the nearside lane and does not push her car off the road.  b. Minutes later, a huge lorry going at 60 mph smashes into the back of the mini, crosses the road, and blocks the opposite carriageway.  c. Four cars then pile into the lorry.  d. Was the mini driver the cause of the four vehicles' crashing into the lorry? - Question 5 a. C is injured by D.  C goes to hospital.  b. The hospital treats C in a way that is technically negligent.  c. Is D liable for the full extent of C's injury? Yes No - Question 6 a. A football match is about to take place between two fiercely opposed teams.  b. There is some unfinished work in the stadium and various lumps of concrete are negligently left lying around c. In violent clashes between the fans these lumps of concrete are thrown at the police and several officers are injured. d. Is the club responsible for the injuries to the officers? Yes No The subsequent behaviour is foreseeable.  **Kind of Harm** - Third question the court will be asked to consider is - Was the kind of harm suffered by the claimant foreseeable - This is often framed as a question of remoteness -- were the claimants injuries too remote from the defendants breach? - Two approaches - Defendants are liable for the direct consequence of their conduct - Defendants are liable for foreseeable kinds of harm, but the precise manner in which the harm is caused doesn't have to be foreseeable - The second approach is the present rule and is derived from *The Wagon Mound* case - This gives rise to opportunities for subtle arguments about what is mean by kind of harm -- arguments for each side - Claimant -- they will try to argue for a very broad interpretation (ex. a case where physical injury is suffered that the kind of harm should simply be any personal injury, not an injury arising from a specific event - Defendant -- they will try to argue for a very narrow interpretation - *Jolly v Sutton* 2000 - Facts - A boat was left to rot on land owned by the London Borough of Sutton - The council failed to remove it and two boys came across it -- thye decided to try and repair it. One of them took a jack from his family garage and they jacked the boat up to work on it - While one of the boys was under the boat and the jack slipped. Boat fell, crushing his back - How would each party try to classify the kind of harm? - Claimant's arguments - Argued that the kind of harm that had occurred was either - Personal injury -- a highly foreseeable kind of harm - Personal injury by boys playing on a boat -- foreseeable kind of harm - Defendant's arguments - The defendants argued that this was a case of - Injury as a result of a jack slipping as the boys tried to repair or work on the boat -- an **unforeseeable** kind of harm - Court's decision - The Court of Appeal found for the defendants, but the House of Lords agreed with the judge at first instance and found for the claimants - The defendant's arguments - So once the claimant has established that all the elements of tort have been made out, then the onus shifts to the defendant to raise any relevant defences - It is helpful to distinguish between defence arguments intended to show that the claimant has not established duty, breach and causation and the true defences - Although there are a number of possible defences to negligence actions -- two most common - Volenti non fit injuria - Contributory negligence **Activity** **Your client, D, is being sued in negligence by C, who was injured while working for D. C was told to wear a hard hat at work, but ignored the instruction. There was a freak storm and a tile was blown off the roof. By chance, it hit C on the head. In addition to a head injury, C suffered depression, and, after nine months, he committed suicide. ** **How might the law of negligence save your client from liability, or, at least, from paying full compensation? ** **Consider how you would use the rules on Duty, Breach, Causation and Defences to help your Defendant client.** - Based on the facts how might the law of negligence save your client from liability or at least from paying full compensation. First consider how you would use the rules on Duty to help your defendant (client). Try to make at least one point about Duty - **D owed a duty to C (employed)** - **D may have breached their duty by not ensuring employees wore their hats** - **however, a freak storm is unforeseeable which breaks the chain of causation and the injury, depression and suicide are unforeseeable kind of harm** - based on the facts how might the law of negligence save your client from liability, or at least from paying full compensation? Now consider how you would use the rules of Breach. Try to make at least one point about Breach - **My answer**: D gave hard hats and instructed that their employees use them. they have satifised their duty as they took necessary precautions - not their fault the employee didnt follow instruction. they would not have been harmed if they followed their instruction, there was a significant intervening event, the freak storm which caused the harm and the harm was not reasonably foreseeable - **Suggested answer:** as D only has to guard against foreseeable risks, you could argued that the chances of the tile being blown off in a freak storm were negligible and therefore that D is not in breach of duty - Based on the facts how might the law of negligence save your client from liability or at least from paying full compensation? Now consider how you would use the rules on causation to help your Defendant (client). Try to make at least one point for each of the three elements of causation - Applying the 'but for' test you could argue that C's injury was caused by his failure to wear a hard hat. D provided the hard hat and C refused to wear it. - Is there a new intervening act? You could argued that two decisions of C not to wear a hard hat and to commit suicide are so unreasonable that they break the chain of causation. - Was the kind of harm foreseeable? You could argue that C's suicide was an unforeseeable kind of harm - Based on the facts how might the law of negligence save your client from liability or at least from paying full compensation. Now consider how you would use the rules on Breach to help your Defendant (client). Try to make at least one point about breach - As D only has to guard against foreseeable risks, you could argue that the chances of the tile being blown off in a freak storm were negligible and therefore D is not in breach of his duty **Defences** - The essence of volenti defence is that the claimant knowingly and willingly accepted the risk of being injured by the defendants actions. Conditions are: - C knew the risk - C willingly accepted it - The individual may know that a certain undertaking is inherently dangerous or risky but that doesn't mean they accept that the defendant will perform their part in it negligently - Its one thing to go on a mountaineering expedition knowing the risks and its dangerous but its not the same as accepting that your guide will behave carelessly - Sport - People who play contact sports accept certain inherent risks of injury, but that doesn't mean they're agreeing not to sue another player who deliberately or negligently injures them - That said, where the claimant's fully aware of the risk and knows what the defendant's done or is likely to do, the "volenti" defence can be used - Employer -- Employee - Employers used to argue that, by continuing to come to work where there was a danger of injury, the employee knowingly and willingly accepted the risk of injury. For many years now, this argument has been rejected - even for obviously dangerous forms of employment.  - The court sometimes explains this by holding that employees need to work, and so, in truth, don't have complete freedom of choice when they face the risks they must run in any job - This means it's rare for the defence of volenti to succeed against an employee.  - But, that's not the last word on employer/employee litigation. Often, when an employee's injured at work, it's partly their own fault. - On the whole, the courts are generous to the employee in such cases, and rarely reduce the damages by much, particularly, as was said in *Caswell v Powell Duffryn*,  \'where the employee has to perform dull, repetitive work. - Rescuers - A legal fiction, similar to the worker's lack of choice, applies to rescuers. Rescuers often act heroically and pose a problem for the courts because they appear to be accepting the risk of injury willingly - But the courts have usually refused to allow the defendant to escape liability by using the defence of volenti. They resort to the fiction that the rescuer was compelled by his moral instinct to go to the victim's rescue. - Sign saying 'at your own risk' - One way in which defendants try to set up the volenti defence is by putting up signs saying that people do things \'at their own risk\'. But the courts will not simply accept what is, in effect, the defendant's say so - Instead they'll consider whether the claimant really did both know and accept the risk of the defendant's negligence - Trespassers - But contrast this with trespasser cases where the courts have been robust in finding that the trespassing claimant did know the risk, and so should be defeated by this total defence. - Diving into Water - In *Ratcliff v McConnell, Tomlinson v Congleton, and Donoghue v Folkstone,* all cases with similar facts, the courts considered that anyone diving into water generally knows the extent of the risk they are running. **Illegality** - One final defence that can be used in extreme cases is illegality -- here the defendant argues that the claims arise out of an illegal action by the claimant which is so serious that it should prevent the claimant succeeding - Clearly, if a driver was slightly exceeding the speed limit and was hit by another driver who was driving negligently, their claim would succeed, subject only to the possibility of some degree of contributory negligence being found. A curious version of the illegality defence arises when a passenger is engaged in a joint criminal enterprise with the driver and sues the driver for injuries caused by negligent driving. - The Road Traffic Act prevents any driver from using volenti as a defence against a claim brought by a passenger - *Ashton v Turner* 1981 and *Pitts v Hunt* 1990 - *Ashton v Turner* - Facts - The getaway driver in a robbery drove negligently and injured one of his partners in crime who sued - Courts decision - Not surprisingly his claim failed, but there was a dispute as to why. One judge argued that it would simply be abhorrent to the public if it succeeded. Another pointed out the evident absurdity of judging breach in such a case, as it would require the trail judge to consider the standard to be expected of the 'reasonable getaway driver' - *Pitts v Hunt* - Facts - Two young men had been drinking and then decided to take a motor bike ride home. The driver (Hunt) was underage, drunk and uninsured - Pitts the claimant pillion rider, knew this and furthermore encouraged the driver to drive recklessly and terrorise pedestrians. Eventually Hunt crashed, killing himself and injuring Pitts who sued - Courts Decision - The court held that the claim was defeated because of the illegality of the joint enterprise **Burden and Standard of Proof** - To establish the tort of negligence you need to show that the defendant owes the claimant a duty of care, which the defendant has breached, causing the claimant damage and of course the damage suffered must be reasonably foreseeable - Who actually has to prove all this - Road traffic incident with Claire and Patrick Facts: Claire suffers whiplash injuries, and her car is damaged. Claire alleges negligence by Patrick. - Does Claire have the burden of proving Patrick was negligent or does Patrick have the burden of proving he was not negligent - As claire is alleging the tort, she has the burden of proving the tort -- she must discharge the burden of proof - What if Patrick raises a defence? Say, for example, Patrick says Claire is partly to blame because Claire was driving too fast.  - Who would have the burden of proving Claire is partly to blame? What do you think? - If you think Patrick would have to prove that Claire was partly to blame then you'd be quite right -- Patrick would have the burden of proving any defences he raises - The General Rule - Whoever raises an allegation has the burden of proving it - To what extent do they have to prove this - In tort, as in all civil cases the standard of proof is on **the balance of probabilities**. - Bear in mind however, that even if the prosecution doesn't succeed against the driver who's caused the accident, the civil claim may succeed because of the different standards of proof which apply in the criminal and in the civil courts. - How does the claimant prove it - Evidence and it is part of the job of the lawyer acting for either the claimant or defendant would be to collect the evidence necessary to discharge the burden of proof - Activity Claire sues Patrick for injury and loss arising out of the road traffic accident.  - Claire's own evidence about what happened. - Yes - Claire's own recollection of what happened is clearly relevant. This eye witness account is an important piece of evidence. - Evidence that Patrick has been convicted of driving without due care and attention in relation to this accident. - Yes - Evidence that Patrick's been convicted of driving without due care and attention in relation to this accident with Claire can be used by Claire. The conviction is clearly relevant to the negligence claim. - A criminal court, applying a higher standard of proof, has decided that Patrick was driving carelessly -- that is, negligently. And Claire can use the conviction to help prove Patrick was in breach of his duty of care. - Evidence that Patrick has been convicted of dangerous driving in relation to a different road traffic accident last year. - No - Claire can\'t use as evidence Patrick's previous conviction. The fact that Patrick was convicted of dangerous driving in relation to a different road traffic accident last year is not valid evidence for our case. It's not relevant to the issue of whether Patrick drove negligently on the morning he crashed into Claire. - Evidence of Ian, the driver of a red car Patrick was overtaking, as to what happened. - Yes - Ian's evidence is clearly relevant. This eye witness account is an important piece of evidence. If Ian's account is favourable to Claire, it will be extremely helpful to her because it's independent evidence. - Ian has no link to Claire -- he will therefore be giving unbiased evidence and the court is likely to place a high value on this. - Evidence from Claire's employer that Claire is a reliable employee. - No - Claire also can't use the evidence from her employer that Claire is a reliable employee. This might well persuade the judge to think favourably of Claire, but it's not relevant to the issue the court's got to decide - whether Patrick drove negligently. So, because it's not relevant evidence, it can't be used. **Other Types of Evidence** - Documents - Relevant and may be critical - If Claire is going to claim for her loss of earning while she was off work, she'd need to provide documentary evidence of her earnings to establish how much she'd lost because of her absence through injury - Experts - Evidence provided by experts -- lawyers often instruct expert witnesses to help prove elements of a case - In Claire's case you may possibly want to instruct an accident reconstruction expert to give expert advice on how the accident happened. It may well be that, considering the particular facts, you don't actually need this type of expert here. - Instructing experts can be very expensive. So, if the other evidence makes it clear how the accident happened, you probably shouldn't incur the extra costs of an accident reconstruction expert. - You will, however, have to instruct a medical expert - Claire has suffered a whip-lash injury. You need to provide a medical report to explain how serious the injury is and its effect on Claire. **Defendants Defence** - Brian, a 20-year-old, dives into the defendant's lake. He has read but ignored a sign warning people not to dive because of shallow water. He is injured. The defendant would have the defence of consent to this claim. - False - The first defence is consent or volenti. Why do you think consent would work as a defence in this scenario?  - Did you think the notice warning him not to do so was important? It certainly is. - But do you think the defence would've worked if Brian had been a three-year old jumping into the lake?   - Well, no it wouldn't, but why not?  - What do you think is the critical difference between these two cases? - Well, for consent, or volenti non fit injuria to give it its full legal dignity, to operate as a defence, the claimant must have full knowledge of the nature and extent of the risk and voluntarily agreed to run the risk - The twenty- year old Brian had read the sign and therefore knew of the risk of injury from diving into a shallow lake. The three-year old Brian however, wouldn't be aware of any such risk. - - A 12-year-old child trespasses on to the defendant's land and injures himself on a hidden electric fence. The defendant clearly has a defence of trespass. - False - In this scenario the defendant wouldn't have the defence of trespass for the simple reason it doesn't exist. So, a trespasser may be able to sue an occupier successfully if the trespasser is injured while on the occupier's land. And, the child in our example might well bring a successful claim. - Does that mean that you can never raise as a defence the conduct of the claimant, however wrong? No, that would be going too far as the next scenario demonstrates. - The claimant and defendant are in the process of blowing up a safe during a burglary. The defendant negligently injures the claimant in the explosion. The defendant would have the defence of illegality. - True - if the claimant is injured whilst committing a crime, the defendant may well be able to use the defence of illegality. What do you think about this? Do you think there should be such a defence - The defence of illegality is at least partly a matter of public policy. The thinking is - why should a claimant who is committing an illegal act be able to recover compensation? Isn't it right for there to be a defence barring compensation in this situation? - But how far should this extend?  - If Claire in our accident case was driving slightly over the speed limit, should the defence of illegality apply so that she's barred from claiming any compensation?  - Well, it's all a matter of degree - so the answer is -- probably not. It's very unlikely that the defence of illegality would be successful against Claire in that situation. - The defendant company negligently injures the claimant on the company's land. The company had posted a notice at the entrance to its land stating \'No liability for any injury caused by the owner's negligence, whatsoever\'. This will operate as a defence for the company as it has excluded its liability. - False - This scenario raises the possibility of the defendant company excluding or disclaiming liability. Here, the company can't exclude its liability as you can't exclude liability for personal injury caused by your negligence.  - However an exclusion clause covering other harm caused by negligence will be a valid defence. But there are restrictions on the defendant being able to exclude liability in this way. - First you need to check that the defendant brought the disclaimer to the claimant's attention. - You must also look at the wording of the disclaimer to check what exactly it is trying to disclaim. - If the defendant is giving his disclaimer during his business activity then there are further restrictions laid down by a statute called The Unfair Contract Terms Act 1977. The Act says that the defendant cannot disclaim liability for personal injury or death caused by the defendant's negligence. - This is why the defendant won't be able to disclaim liability successfully here. It would be different if, say, the claimant had simply broken his camera. In that kind of situation, the statute does allow a defendant to disclaim liability in so far as it's reasonable to do so. - Monty, a 50-year-old, crosses the road after being beckoned across by a driver. He fails to check for himself whether the road is clear. He is knocked down by another driver, the defendant, who is driving negligently. The defendant would have a defence of contributory negligence - True - In this scenario Monty's failed to take reasonable care of his own safety. He's an adult and so he should check the road is clear before he crosses it. He hasn't done so, and because of this he's contributed to his own misfortune.  - The car driver was driving negligently but also Monty is clearly partly to blame for his injuries. Monty's compensation will be reduced because of his contributory negligence - - An 8-year-old child, Freddie, crosses the road after being beckoned across by a driver. He fails to check for himself whether the road is clear. He is knocked down by another driver, the defendant, who is driving negligently. The defendant would have a defence of contributory negligence - False - In our second scenario, we've concluded that Freddie is not at fault. So what's the difference between Monty and Freddie? Clearly there's a difference in age. Monty's failed to take the care that a reasonable adult should. But, should we judge Freddie against the reasonable adult -- after all, he's only eight.  - Well, obviously not. But how should we decide whether a child has been contributory negligent? We still need to establish the link between the carelessness and the loss -- that is his injuries here.  - But how do we work out whether that child has been careless? We look at the average child of that age. Has Freddie been careless when judged by the standard of the average eight year old? The answer is no, so that's why Freddie won't be regarded as contributory negligent. - **Contributory Negligence** - Following defences are complete defences - Consent - Illegality - Disclaimers - They are all or nothing -- if they succeed, they wipe out the defendants liability to the claimant - If they don't succeed then provided the claimant proves their case and there aren't any other defences, the claimant wins outfright and will get full compensation - Contributory negligence is different - It's a partial defence - If the defendant succeeds in showing the claimant is contributory negligent the defendant will still be liable to the claimant but the defendant will pay the claimant less compensation - It is about claimants failing to take reasonable care for their own safety and so contributing to injuries or other damages they suffer - Patrick drives into Claire's car. Because Claire is not wearing her seat belt Claire bangs her head against the windscreen and suffers head injuries. Patrick would have the defence of contributory negligence. - True - In this scenario involving Claire and Patrick, Claire\'s failure to wear a seat belt is undoubtedly careless. But what is the link with the damage suffered? Well in this scenario Claire bangs her head against the windscreen and that can be said to be a direct result of not wearing a seatbelt.  - So in this scenario Claire has contributed to her injuries by her carelessness, and her compensation will be reduced accordingly. - Patrick drives into Claire's car. Claire, who is not wearing her seatbelt, breaks her leg in the crash. Patrick would have the defence of contributory negligence. - False - In this second version of events involving Claire and Patrick, again we need to ask what is the link with Claire\'s carelessness in not wearing her seatbelt and the damage suffered? - Claire breaks her leg. Arguably this would've happened even if she had been wearing her seatbelt. So here, unlike in the previous scenario, we can say there's no link between Claire's carelessness in not wearing her seatbelt and the injury.  - As there's no link there's no contributory negligence so compensation for the broken leg won't be reduced. - Shane negligently parks his car, resulting in it rolling down a hill. Ricky leaps in front of the car to rescue a child who was directly in the car's path. Ricky is injured by the car. Shane would have the defence of contributory negligence against Ricky because Ricky voluntarily leapt in front of the car. - False - In this scenario, Ricky has rescued a child and been injured in the process. The child needed rescuing because of Shane's negligence.  - Should Ricky have his compensation reduced because he voluntarily put himself in front of the car? Surely not.  - This could result in people turning a blind eye to others in danger -- not something the courts would want to encourage. They certainly don't want to discourage sensible rescues. -  As long as Ricky has acted reasonably and it looks as though he has, there's no contributory negligence. -