• Shuffle
    Toggle On
    Toggle Off
  • Alphabetize
    Toggle On
    Toggle Off
  • Front First
    Toggle On
    Toggle Off
  • Both Sides
    Toggle On
    Toggle Off
  • Read
    Toggle On
    Toggle Off
Reading...
Front

Card Range To Study

through

image

Play button

image

Play button

image

Progress

1/30

Click to flip

Use LEFT and RIGHT arrow keys to navigate between flashcards;

Use UP and DOWN arrow keys to flip the card;

H to show hint;

A reads text to speech;

30 Cards in this Set

  • Front
  • Back
Main Defences in Tort
1. Contributory Negligence
2. Failure to Mitigate Loss
3. Waiver
4. Illegality
Contributory Negligence - Definition
s. 34(1) Civil Liability Act 1961 provides that the Def’s liability is reduced proportionate to the extent to whch the Pl contributed to the injury by failing to exercise reasonable care for his own safety.

s. 34(2): the defence is not limited to negligence actions; may be invoke for any wrong – tort, breach of contract/trust.

s. 34(2): applies to wrongs committed by Def or a third party for whom Def is responsible.

s. 34(2): applied whether original wrong was intentional or negligent.

Note the following qualifications:

i. Where apportioning fault is impossible, liability is apportioned equally;

ii. Where the Pl has waived rights, this is absolute: contributory negligence play no role;

iii. Where a contract or a statute sets a limit to liability, the Pl cannot receive more than that limit.
Imputed Contributory Negligence
s. 35(1) lists the three situations in which the Pl should be deemed contributorily negligent (by imputation):

i. Vicarious liability (i.e. an employer is liable for his employee’s contributory negligence);

ii. Pl is not the immediate victim (i.e. where the Pl takes a case on behalf of the deceased, the deceased’s CN counts);

iii. Pl is a concurrent wrongdoer.
Assessment of Contributory Negligence
Fundamental rule: CN is assessed under the ordinary negligence rules; negligence is essential!

As in negligence, the standard of care is generally objective. However, exceptions may be made:

Fleming v. Kerry Council (1955): the court held that for the CN of a minor, factors such as age and mental development should be considered.

Hession v. Hession (2005): The court had regard to the fact that the Plaintiff was only 14 in holding that there was no contributory negligence.

The issue of causation is also crucial: it must be shown that the Pl’s acts must be causally linked to the injury.
Fleming v. Kerry Council (1955)
The court held that for the CN of a minor, factors such as age and mental development should be considered.
Hession v. Hession (2005)
Pl’s father’s car began to move because the handbrake was off; 14-year-old Pl rushed over and tried to stop the car, but sustained leg injuries when she was crushed between the car and the wall.

The court had regard to the fact that she was only 14 in holding that there was no contributory negligence.
Apportionment
s. 34 (1) of the Civil Liability Act, 1961 empowers the court to apportion damages having regard to the degrees of fault of the Pl and Def.

O’Sullivan v. Dwyer (1971): held that fault (i.e. blameworthiness) should be measured against the standard of conduct of the reasonable person within the class or category the person being measure belongs.

s. 42 encourages the court to let costs reflect the decision on liability; however, the court retains discretion.
O’Sullivan v. Dwyer (1971)
Held that, in apportioning fault (i.e. blameworthiness), the Plaintiff should be measured against the standard of conduct of the reasonable person within the class or category the person being measured belongs.
Example of Contributory Negligence - Seat Belts
Most common area of CN; legal requirement to wear seat belts has strengthened it; Hamill v. Oliver (1977) recognises some justifications for failure to wear a seatbelt (obesity, pregnancy etc.).

Reduction in damages usually around 15%.

This is not fixed, fore example because of the life experience of an off-duty detective in O’Sullivan v. Ryan (2005), his CN in not wearing a seatbelt led to a 25% reduction in damages;

Causation is essential: in Kelly v. Hackett (2005), the court held that because leg injuries would have been sustained either way, there should be no reduction in damages.
O’Sullivan v. Ryan (2005)
Because of the life experience of an off-duty detective, his CN in not wearing a seatbelt led to a 25% reduction in damages;
Kelly v. Hackett (2005)
Causation is essential: the court held that because leg injuries would have been sustained either way, there should be no reduction in damages.
Hamill v. Oliver (1977)
Recognises some justifications for failure to wear a seatbelt (obesity, pregnancy etc.).
Example of Contributory Negligence - Drunkenness
Boyne v. Bus Atha Cliath (2002): the drunken Pl stumbled off a bus and stumbled, and the driver failed to notice this, subsequently driving over the Pl’s leg. The court held that in such cases, the Pl’s conduct must be assessed as if he were sober; a sober person with due care would have stepped out of the way, thus the Pl’s CN reduced by 25%.

Devlin v. MIBI (2006): the court reduced damages by 50% where the Pl was injured having gotten into a car knowing that the driver was drunk.
Boyne v. Bus Atha Cliath (2002)
The drunken Pl stumbled off a bus and stumbled, and the driver failed to notice this, subsequently driving over the Pl’s leg. The court held that in such cases, the Pl’s conduct must be assessed as if he were sober; a sober person with due care would have stepped out of the way, thus the Pl’s CN reduced by 25%.
Devlin v. MIBI (2006)
The court reduced damages by 50% where the Pl was injured having gotten into a car knowing that the driver was drunk.
Failure to Mitigate Loss - Duty to Mitigate
Under s. 34(2)(b) of the Civil Liability Act, 1961, the Pl is under a duty to take reasonable steps to mitigate his loss.

If the Pl unreasonably contributes to the injury after the incident causing it, he has failed to comply with s. 34(2)(b).

Bohan v. Finn (1994): held that this duty has its reasonable limits: “nobody is bound to undergo experimental or unusual remedies for the illness or disability imposed upon them by a wrongdoer”.

Leahy v. Rawon (2003): Pl sued engineers and a labourer for the defective reconstruction of a cottage she had bought; Pl claimed for losses incurred when she built a garage adjacent to the cottage in which she lived while the cottage was structurally unsafe; Def claimed a breach of s. 34(2)(b). Court reject the Def’s claim, finding that she was in an impossible situation, unable even to find local authority housing. Thus, her building of the garage in fact constitution mitigation of loss in difficult circumstances.
Bohan v. Finn (1994)
Held that this duty has its reasonable limits: “nobody is bound to undergo experimental or unusual remedies for the illness or disability imposed upon them by a wrongdoer”.
Leahy v. Rawon (2003)
Pl sued engineers and a labourer for the defective reconstruction of a cottage she had bought; Pl claimed for losses incurred when she built a garage adjacent to the cottage in which she lived while the cottage was structurally unsafe;

Def claimed a breach of s. 34(2)(b).

Court reject the Def’s claim, finding that she was in an impossible situation, unable even to find local authority housing. Thus, her building of the garage in fact constitution mitigation of loss in difficult circumstances.
Effect of Failure to Mitigate
Pl is found liable for the amount by which damage then exceeds the original damage.

Where the Pl’s contribution goes so far as to be the true cause of the injury, a case of novus actus interveniens may be found.
s. 34(2)(b) of the Civil Liability Act, 1961
Under s. 34(2)(b) of the Civil Liability Act, 1961, the Pl is under a duty to take reasonable steps to mitigate his loss.
Waiver
Civil Liability Act 1961 split up the old defence of voluntary assumption of risk into CN and waiver, which is more absolute.

Where the Def can show contractual exclusion of liability or a voluntary waiver, he has an absolute defence to liability.

O’Hanlon v. ESB: the agreement must be express or implied, and it must be reasonable for the Def to assume that the Pl had waived his right to take an action. The waiver may be non-verbal where the Pl acquiesces to a verbal disclaimer by the Def; a written disclaimer, however, requires communication by the Pl to show acceptance.

McComiskey v. McDermott: Pl navigator sued Def rally driver after an accident; the Def argued that there was a written disclaimer on the dashboard; however, evidence showed that it had been there when the car was bought, and the parties had joked about it; thus there was no valid waiver communicated.

Anderson v. Cooke (2005): Def drove around a car park at 110 mph with Pl as passenger; they had agreed to the “challenge”, with the Pl intending to photograph the speedometer and post photos online; the Def swerved into a pole, injuring the Pl; the Def argued waiver, however, the court found that the O’Hanlon criteria had not been passed; there had not been prior discussion about a waiver and no express agreement between the parties
O’Hanlon v. ESB (1969)
The agreement must be express or implied, and it must be reasonable for the Def to assume that the Pl had waived his right to take an action. The waiver may be non-verbal where the Pl acquiesces to a verbal disclaimer by the Def; a written disclaimer, however, requires communication by the Pl to show acceptance.
McComiskey v. McDermott (1974)
Pl navigator sued Def rally driver after an accident; the Def argued that there was a written disclaimer on the dashboard; however, evidence showed that it had been there when the car was bought, and the parties had joked about it; thus there was no valid waiver communicated.
Anderson v. Cooke (2005)
Def drove around a car park at 110 mph with Pl as passenger; they had agreed to the “challenge”, with the Pl intending to photograph the speedometer and post photos online; the Def swerved into a pole, injuring the Pl; the Def argued waiver, however, the court found that the O’Hanlon criteria had not been passed; there had not been prior discussion about a waiver and no express agreement between the parties.
Illegality
The principle is that where a claim was based on fraud or crime, it cannot proceed.

However, the defence is highly qualified, and generally applied according to policy considerations.

s. 57(1): it shall not be a defence to an action merely to show that the Pl is in breach of the civil or criminal law.

Thus, it is far from an absolute defence, and may simply be factored in to the examination of liability.
Clunis v. Camden & Islington HA (1998)
A mentally ill patient who fatally stabbed a man after discharge from an institution sued the institution for breach of duty in releasing him; the court applied the defence of illegality, finding the claim unsustainable because it was based on a crime; however, the court suggested that, had the man been legally insane/not known what he was doing (as opposed to mere diminished responsibility), the defence may have failed.
Anderson v. Cooke (2005)
The Def argued that the illegality of the joint venture defeated the claim in tort; the court highlighted that not every crime or tort by a Pl will sustain the use of the defence – they must be a serious affront to public policy; however, the court held that this was the case here, and the illegal actions by the Pl rendered the claim inactionable.
Civil Liability Act 1961 s. 57(1)
s. 57(1): it shall not be a defence to an action merely to show that the Pl is in breach of the civil or criminal law.
Ex Turpi Causa
Thus, as Peart J. put it in Hackett v. Calla Associates Ltd. [2004] IEHC336, the modern day ex turpi causa principle is confined to those cases where the conduct of the plaintiff has been "so egregious that he ought not to be allowed recover damages for an injury sustained which results from that behaviour."
Hackett v. Calla Associates Ltd. [2004] IEHC336
Peart J. put it in Hackett v. Calla Associates Ltd. [2004] IEHC336, the modern day ex turpi causa principle is confined to those cases where the conduct of the plaintiff has been "so egregious that he ought not to be allowed recover damages for an injury sustained which results from that behaviour."