2B - Defences

Question 1

Contributory Negligence is found under what act?

Answer 1

s.1(1) Law Reform (Contributory Negligence) Act 1945

Question 2

What is contributory negligence?

Answer 2

It’s a partial defence where the C’s damages are reduced according to the C’s responsibility for their loss

Question 3

Contributory negligence: what happened in Froom v Butcher?

Answer 3

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%

Question 4

Contributory negligence: What happened in Jayes v IMI (Kynoch) Ltd

Answer 4

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

Question 5

Contributory negligence: What happened in Sayer v Harlow

Answer 5

C’s compensation was reduced by 25% for trying to climb out of a locked toilet by standing on the loo roll holder

Question 6

Consent: What does volenti non fit injura mean?

Answer 6

no injury is done to the one who consents to the risk

Question 7

What kind of defence is consent?

Answer 7

It’s a complete defence which means that the C will not receive a remedy

Question 8

Consent: In order to prove the defence is must be shown that the C…

Answer 8

1. Knew of the precise risk, AND

2. Voluntarily accepted the risk by free choice

Question 9

Consent: What happened in Stermer v Lawson

Answer 9

Defence failed as the C hadn’t been properly shown how to use the motorbike and so didn’t appreciate the risks - precise risk

Question 10

Consent: free choice

Answer 10

Consent must be given freely. There must be an absence of anything that interferes with free choice

Question 11

Consent: What happened in Smith v Baker

Answer 11

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

Question 12

Consent: Person is under a duty to act

Answer 12

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

Question 13

Remedy: Damages - aim of damages

Answer 13

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

Question 14

Remedy: Damages - C has a duty to mitigate their losses

Answer 14

They must take reasonable steps to prevent further deterioration in the condition of any damaged property

Question 15

Remedy: Damages - Two heads of damages

Answer 15

1. Special damages

2. General damages

Question 16

Special Damages: What are they

Answer 16

Damages which can be specifically calculated and concern the loss suffered by the C up to the date of the hearing

Question 17

Special Damages: Examples

Answer 17

• physical damage - to car/phone
• medical care - up to the date of the trial
• loss of earnings - up to the date of the trial

Question 18

General Damages: what are they

Answer 18

Concern future losses and are calculated on the basis of what the C’s future would have been had the tort not occured

Question 19

General Damages: What are the types of general damages

Answer 19

• pecuniary

- non pecuniary

Question 20

General Damages: What are pecuniary losses

Answer 20

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

Question 21

General Damages: What are non-pecuniary losses

Answer 21

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

Question 22

General Damages: The Judicial College

Answer 22

The Judicial College issues guidelines on the amount that is payable for various injuries

Question 23

Method of payment: Damages can be paid 2 ways

Answer 23

1. lump sum

2. structured settlement

Question 24

Method of payment: What is a lump sum

Answer 24

When the money is paid off in one payment.

Often appropriate for loss or damage to goods or property

Question 25

Method of payment: Structured settlement

Answer 25

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

Question 26

EXAM TIP

Answer 26

When completing a scenario, you can conclude with a remedy should the C be successful