Damages, defences and remedies

Question 1

Damage has two parts that must be satisfied:

Answer 1

causation and remoteness

Question 2

For factual causation the court will apply the

Answer 2

‘but for test’ and ask whether the damage would have occurred but for the defendant’s breach of duty, as in BARNETT v CHELSEA

Question 3

Here D was the factual cause of C’s damage

Answer 3

as

Question 4

For legal causation the court will consider whether a

Answer 4

not reasonably foreseeable ‘novus actus interveniens’ - an intervening act - breaks the chain of causation between the defendant’s breach of duty and the damage. The act could be by the claimant, as in McKEW v HOLLAND, due to nature as in CARSLOGIE v ROYAL NORWEGIAN GOVERNMENT or due to a third party as in Knightley v Johns.

Question 5

Here there

Answer 5

was

Question 6

For remoteness,

Answer 6

the defendant is liable for the type damage that was reasonably foreseeable at the time of the breach of duty, as in THE WAGON MOUND (No1).

Question 7

IF RELEVANT: Here D will be liable for the full extent of C’s injuries

Answer 7

even though

Question 8

The defendant will be liable for the damage,

Answer 8

even if it was not reasonably foreseeable at the time of the breach due to a hidden weakness of the claimant, as long the general type of damage was reasonably foreseeable This is known as the ‘Thin Skull Rule’ where the defendant must ‘take his victim as he finds them’, as in SMITH v LEECH BRAIN.

Question 9

IF RELEVANT: Here D will be liable for C’s injuries

Answer 9

even though

Question 10

TO CONCLUDE,

Answer 10

causation and remoteness are satisfied, so the issue of damage will be proved C.

Question 11

TO CONCLUDE OVERALL,

Answer 11

all 3 parts of negligence are satisfied, so D will be liable.

Question 12

There are two

Answer 12

defences that may apply.

Question 13

The Law Reform

Answer 13

(Contributory Negligence) Act 1945 provides that any damages to the claimant can be reduced by a percentage according to the extent to which the claimant has contributed to their own injuries, even with 100% a possibility, as in SAYERS v HARLOW.

Question 14

IF RELEVANT: Here C’s damages will be reduced by a percentage

Answer 14

as

Question 15

Volenti non fit injuria (consent) is a full defence, apart from in road traffic cases,

Answer 15

where the claimant fully understood the nature of the risk rather than just being aware of its existence, and exercised free choice, as in NETTLESHIP V WESTON.

Question 16

IF RELEVANT: Here C did fully understand the nature of the risk

Answer 16

when

Question 17

As a REMEDY, for C’s personal injury

Answer 17

the court may award compensatory damages under the damages act 1996, where the aim is to put the claimant in their prertort position.

Question 18

Pecuniary (financial) losses will claimed,

Answer 18

such as medical bills. Non-pecuniary (nonfinacial) loses will be claimed, such as loss of amenity for the loss of chance to enjoy hobbies/activities.

Question 19

General damages (cannot be precisely calculated)

Answer 19

may be awarded for loss of amenity, pain and suffering, a ‘tariff’ award for the injury itself, future loss of earnings and medical care after the trial.

Question 20

Special damages (can be calculated precisely)

Answer 20

may be awarded for loss of earnings and medical care up to the trial, and for any damage to property based on the cost of repair or replacement using the market value at the time of damage.

Question 21

C is under a duty to

Answer 21

mitigate loss, which means to keep the loss to a reasonable level by seeking prompt medical treatment [and/or getting the property repaired or replaced promptly].

Question 22

Here

Answer 22

C will be able to claim

Question 23

here C’s damages was not too remote

Answer 23

as it was a type that was reasonably foreseeable at the time of D’s breach of duty because

Question 24

The defendant will be liable for the full extent of the damage,

Answer 24

even if the full extent was not reasonably foreseeable at the time of the breach of duty, as long as the general type of damage was reasonably foreseeable, as in BRADFORD v ROBINSON RENTALS.