Chapter 4: Remedies and defences in negligence Flashcards
What is the principle remedy in any case involving negligence?
An award of damages.
What is a requirement of the damage caused to the claimant?
That it is ‘reasonably foreseeable’.
The Wagon Mound (1961)
Facts of ‘The Wagon Mound (1961)’
The defendant company’s ship spilt some oil in Sydney harbour.
The oil drifted to a wharf where the claimant company was carrying out some welding.
A spark from the welding fell onto a piece of cotton wool which was in the oil.
This caught light and started a fire damaging the claimant’s wharf.
Held in ‘The Wagon Mound (1961)’
The claimant failed as it was held that pollution was the foreseeable consequence of the oil spillage not fire.
Facts of ‘Hughes v Lord Advocate (1963)’
The defendants telephone engineers left an inspection hole covered only by a tent and surrounded by paraffin lamps.
A child claimant was badly injured when he fell down the hole carrying a lamp which exploded on impact causing a fireball.
Held in ‘Hughes v Lord Advocate (1963)’
The defendants were liable as they should reasonably have foreseen that a child would be attracted by the lamps and might be burned when playing with them.
It was irrelevant that they could not have foreseen the explosion or the severity of the burn damage.
What are the three main defences to a charge of negligence?
Contributory negligence
Volenti non fit injuria
Exclusion clauses
What is the ‘contributory negligence’ defence?
If the claimant is partly responsible for his or her own injuries, the defendant can plead this defence.
What is the effect on the outcome if the defence of contributory negligence is accepted?
The court may reduce any damages it awards to the claimant depending on the degree to which he or she is judged responsible for his or her losses.
What is the ‘volenti non fit injuria’ defence?
This applies where the claimant has freely consented to the risk of loss or damage due to the defendant’s actions.
What is the ‘exclusion clauses’ defence?
If an exclusion clause is found to be valid, this constitutes a valid defence against any action for negligence.
Liability is excluded if it is possible to say that the act occurred in the course of nature; something beyond human foresight which the defendant could not have been expected to provide against.
