Absolute Defences: Overview

[Flash Card 1 of 1]

• D must prove defence on balance of probabilities
• absolute defence: completely bars claim / partial defence: contributory negligence (limits D's liability)
• absolute defences: mistake / necessity / limitation / excluded liability / consent / illegality

Mistake and Necessity

• mistake: must be reasonable / necessity: reasonable person / to avoid real & imminent danger

Limitation

• C not brought claim within time limit / general: 6yrs / personal injury & death: 3 yrs (s11 Limitation Act 1980)
• practical reasons limited: lack of reliable evidence/ unfairness to D

Excluding liability: Unfair Contract Terms Act 1977

• S(1): 'negligence' breach (a) contractual obligations or (b) any common law duty / to take reasonable care or exercise reasonable skill
• S1(3): UCTA 1977 applies to business liability only
• S2(1): no restriction liability / death or personal injury / resulting from negligence
• S2(2): notice must satisfy reasonableness test / to restrict other loss or damage
• S2(3): C's agreement or awareness of notice / not indicate voluntary acceptance of any risk
• reasonableness test: S11(3) fair & reasonable to allow reliance on non contractual notice in all circumstances / S11(5): D's burden of proof
• S14: 'notice': announcement (written or unwritten) & other or pretended communication / 'personal injury': any disease / any impairment of physical or mental condition

bits of law