Defences and shared liability Negligence Defences and shared liability

Negligence The defendant owed the claimant a duty of care The defendant breached the duty of care The claimant suffered an injury or damage to property as a result of the breach (= causation). To succeed in a negligence claim, a claimant must establish three elements. What are they? The defendant owed the claimant a duty of care The defendant breached the duty of care The claimant suffered an injury or damage to property as a result of the breach (= causation). They must prove all three elements on a balance of probabilities If a defendant is accused of negligence, the first step is for him to consider each of these elements. If he can show on a BOP that anu of them are not established, he is not liable in negligence.

(“the thing speaks for itself”) The court may infer negligence when res ipsa loquitur (“the thing speaks for itself”) The court may infer negligence when damage occurred which could not have occurred without negligence the situation was under the control of the defendant. An exception to this is provided by res ipsa loquitor res ipsa loquitur (rays ipsa loquitur) (“the thing speaks for itself”) The court may infer negligence when damage was caused the damage could not have occurred without negligence the situation was under the control of the defendant. An example is given by the case which led to this doctrine: Scott v London & St Katherine's Docks (1865): the plaintiff was injured after being hit by six bags of sugar, which fell from the defendant's warehouse. Scott v London & St Katherine's Docks (1865): the plaintiff was injured after being hit by six bags of sugar, which fell from the defendant's warehouse.

Defences If someone is accused of negligence there are a number of defences they can use

Defences If a defence is proved, then D is not liable. In the first part of the presentation we will look at defences – complete defences Which means? If a defence is proved, then D is not liable.

1. Novus actus interveniens An intervening act breaks the chain of causation An act of a third party ii) An act of the claimant: the claimant’s act were “unreasonable in the circumstances” The first is Novus actus interveniens (intervene iens) An intervening act breaks the chain of causation This may be An act of a third party: An act of a third party constitutes a NAI if the damage is no longer a “reasonably foreseeable” result of the original breach A NAI can also be An act of the claimant: if the claimant’s act were “unreasonable in the circumstances” e.g. John has an accident at work caused by his employers negligence which makes him blind. Six months later he decides to drive his car on the motorway and has an accident. Is his employer liable? However, if the employer negligently causes an employees depression and then the employee commits suicide – its not so clear – the suicide can be seen as a reasonably foreseeable consequence of the original breach

2. Volenti non fit injuria (= consent) Requires an entirely free and voluntary agreement, made in full knowledge of the nature and extent of the risk. This brings uus onto Volenti non fit injuria ( a voluntary assumption of risk ) This means that the claimant consented to the injury or (more usually) to the risk of being injured It requires a voluntary agreement, made in full knowledge of the nature and extent of the risk. Morris v. Murray [1991]: claimant got into plane with pilot who was very very drunk However, you must remember that If the agreement is not entirely free and voluntary, this defence does not apply sciens is non volent: knowing is not consent Means the volenti defence is unlikely to succeed if the claimant is: a rescuer an employee someone who committed suicide Why? A rescuer – constrained by circulsta,nces - not regarded as having freely and voluntarily accepted the risk An employee – not entirely free Suicide – generally not of sound mind

3. Necessity D must have acted as a reasonable person would have done to avoid a real and imminent danger. There is also a defence of necessity

4. Ex turpi causa non oritur actio = Illegality C cannot recover compensation for loss which he has suffered in consequence of his own criminal act An a defence usually reduced to « ex turpi »

Apportionment of liability Those are the main defences. In teh second part of the presentation, we will consider apportionment of liability.

Apportionment of liability Adapts the quantum of damages to reflect each party’s contribution to the damage This is a partial defence. How is it different from a complete defence? Adapts the quantum (=amount) of damages to reflect each party’s contribution to the damage

i) Contributory negligence Liability is shared between D and C. The burden of proof is on D to demonstrate: C failed to take proper care in the circumstances to ensure his own safety The failure to take care was a contributory cause of the damage suffered Damages are reduced in proportion to the extent that C contributed to his own harm. One aspect of this is the doctrine of Contributory negligence What is this? Liability is shared between D and C. The burden of proof is on D to demonstrate: C failed to take proper care in the circumstances to ensure his own safety The failure to take care was a contributory cause of the damage suffered What happens when teh court accepts that there is CN? Damages are reduced in proportion to the extent that C contributed to his own harm. In the past the complete defences were used quite often. Today courts are reluctant to use the complete defences. Much more likely to fnd contributory negligence. Why? Fairer – in many situations where a full defence could apply, there generally there is some responsibility on both sides

ii) Multiple tortfeasors Joint liability: each TF is liable for 100% of the damages Several liability: the liability of each TF is separate and distinct Joint and several liability: Multiple TFs contributed to the damage. C may pursue all or any of the TFs to recover damages. If one TF pays, he may then pursue the other TF/s for a contribution (in proportion to their liability) . The second aspect of approtionment of liability is when there are multiple tortfeasors There are different ways this can occur Joint liability: participants acted together to commit the tort “” – each TF is liable for 100% of the damages Several liability: different damage is caused by different TFs – the liability of each is separate and distinct Joint and several liability: Multiple TFs contributed to the damage. C may pursue an obligation against all or any of the TFs. If one TF pays the full damages, he may then pursue the other TF/s for a contribution (in proportion to their liability) . JOINT TORTFEASORS MEANS THIS USUALLY