Defences

IAL LAW EDEXCEL PAPER 2 CONTENT

Volenti non fit injuria

 Stands for “to a willing person, injury is not done”

 To use volenti the defendant must prove that the claimant had
knowledge of the risk and willingly consented to accept that risk.
 This is a complete defence that will mean there is no liability for
injury or loss.
Contributory Negligence

 Where any person suffers damage as the result partly of his own
fault and partly of the fault of any other person or persons, a claim in
respect of that damage shall not be defeated by reason of the fault
of the person suffering the damage, but the damages recoverable
in respect thereof shall be reduced to such extent as the court thinks
just and equitable having regard to the claimant’s share in the
responsibility for the damage …
 Contributory negligence will reduce the damages payable by the
defendant according to the extent to which the claimant’s own
carelessness contributed to his or her injuries.
Ex turpi causa

 This is Latin for “no action arises from a dishonourable claim”

 This means that there is no liability in tort for injuries sustained in an
unlawful course of action or immoral act.
 Such claims would be against public policy.
Exclusion of Liability

 This excludes all of your liability for certain events or consequences

 It Anticipates that there will be a breach of contract, and then
excludes all liability for that breach
 A common way of apportioning risk in a contract is for the parties to
exclude or restrict their liability to one another in the event of
default. Such exclusions can take a number of forms. Some clauses
seek to exclude liability altogether. Others put a limit on liability,
perhaps by capping the amount payable in damages on a breach;
restricting the types of loss recoverable or the remedies available; or
imposing a short time limit for claims.
 Any analysis of a particular exclusion or limitation clause should take
a three-step approach:
 Is the clause incorporated into the contract?
 Is the liability in question covered by the clause?
 Are there any cases or legislation regulating its effect?
Res ipsa loquitur
 Means “the thing speaks for itself”.
 This is to create a “prima facie” (At first sight) presumption of Negligence against
the defendant
 However, the claimant has still to prove the burden of proof (Balance of
Probabilities)
 Scott v The London and St. Katherine Docks Company (1865) Facts: The claimant
was near the door of the defendant’s warehouse and under a crane when some
sugar bags fell on him. The only witness was the claimant. The judge directed the
jury to find for the defendant on the grounds of lack of evidence. The claimant
appealed and a new trial was ordered. The defendant appealed against the
ordering of the new trial.Held: The Court of Exchequer Chamber dismissed the
appeal and a new trial was ordered.
 A claimant can use res ipsa loquitur if:
 The thing that caused the damage was under the control of the defendant.
 The cause of the accident is unknown.
 The accident is such that would not normally happen without negligence.