2B - Defences Flashcards
Contributory Negligence is found under what act?
s.1(1) Law Reform (Contributory Negligence) Act 1945
What is contributory negligence?
It’s a partial defence where the C’s damages are reduced according to the C’s responsibility for their loss
Contributory negligence: what happened in Froom v Butcher?
The driver of a car suffered greater injuries than would have been the case if he was wearing a seat belt. His damages were reduced by 20%
Contributory negligence: What happened in Jayes v IMI (Kynoch) Ltd
There was a 100% reduction in damages when the C lost a finger when cleaning a machine. The employers had provided a guard, however, the C admitted that he had pulled this off when he cleaned the machine
Contributory negligence: What happened in Sayer v Harlow
C’s compensation was reduced by 25% for trying to climb out of a locked toilet by standing on the loo roll holder
Consent: What does volenti non fit injura mean?
no injury is done to the one who consents to the risk
What kind of defence is consent?
It’s a complete defence which means that the C will not receive a remedy
Consent: In order to prove the defence is must be shown that the C…
- Knew of the precise risk, AND
2. Voluntarily accepted the risk by free choice
Consent: What happened in Stermer v Lawson
Defence failed as the C hadn’t been properly shown how to use the motorbike and so didn’t appreciate the risks - precise risk
Consent: free choice
Consent must be given freely. There must be an absence of anything that interferes with free choice
Consent: What happened in Smith v Baker
C was an employee who worked on a railway line. For several weeks a crane had been swinging material overhead. C was injured and D tried to argue the due to the C continuing to work he had consented to the risk of the injury. Court rejected this as simply knowing of the risk didn’t amount to consent especially where the C had little choice but to continue to work as he needed the job
Consent: Person is under a duty to act
Where a person is under a duty to act, eg for his job (Ogwo v Taylor) and is then injured due to the D’s negligence then content will not be a defence, as the C had no choice but to act
Remedy: Damages - aim of damages
The most common remedy is damages which aims to compensate the C and put them in the position that they would have been in had the tort not occurred, as far as money can do. However, they must not gain from their losses
Remedy: Damages - C has a duty to mitigate their losses
They must take reasonable steps to prevent further deterioration in the condition of any damaged property
Remedy: Damages - Two heads of damages
- Special damages
2. General damages
Special Damages: What are they
Damages which can be specifically calculated and concern the loss suffered by the C up to the date of the hearing
Special Damages: Examples
- physical damage - to car/phone
- medical care - up to the date of the trial
- loss of earnings - up to the date of the trial
General Damages: what are they
Concern future losses and are calculated on the basis of what the C’s future would have been had the tort not occured
General Damages: What are the types of general damages
- pecuniary
- non pecuniary
General Damages: What are pecuniary losses
They are the future losses that can have a monetary value placed on them (easily calculated)
- loss of earnings - AFTER date of trial
- medical treatment/care - AFTER date of trial
General Damages: What are non-pecuniary losses
They are future losses that dont easily have a monetary value placed on them (not easily calculated)
- pain and suffering
- loss of amenity
- damages for the injury itself
General Damages: The Judicial College
The Judicial College issues guidelines on the amount that is payable for various injuries
Method of payment: Damages can be paid 2 ways
- lump sum
2. structured settlement
Method of payment: What is a lump sum
When the money is paid off in one payment.
Often appropriate for loss or damage to goods or property
Method of payment: Structured settlement
Since the Damages Act 1996, the money can be paid off in a structured settlement. This is where the amount awarded is given a periodical payment eg per month. More appropriate for personal injuries where there is a large sum of money and the C is going to need a regular income during his life, or where the condition is likely to deteriorate or even get better
EXAM TIP
When completing a scenario, you can conclude with a remedy should the C be successful
