Defences and Remedies Flashcards
What are the two defences on the spec?
Consent and contributory negligence
What is the Contributory negligence ao1 (3 points)
-Any damages that are awarded to the C can be reduced according to the extent or level to which the C contributed
-This is a partial defence and will only result in a reduced amount of damages (Sayers v Harlow Urban)
-There can be a 100% reduction in damages (Jayes v IMI Ltd)
What is the consent (volenti) ao1?
-Volenti provides a defence if the C consents to the damage, it must be shown that the C:
(three part test)
-Defences will not succeed where the C had no choice but to accept the risk (Smith v Baker)
-In medical cases doctor must gain consent (Montgomery)
What is the three part test of volenti?
-Had knowledge of the precise risks involved
-Exercise of free choice of the C
-Voluntarily accepted the risk
What is the remedies ao1 split into?
-Describe types of loss
-Compensatory damages
-Mitigation of loss
-Injunctions
What would the describe types of loss section of remedies ao1 include?
-Pecuniary loss is loss that can be calculated in terms of money e.g. repairing or replacing property
-Non-pecuniary loss is loss that cannot be calculated in terms of money
What would the compensatory damages section of ao1 include?
-Special damages
-General damages
-Lump sum settlements
-Structured settlements
what would the first half of compensatory damages be?
Special damages - the amount of damages/money that can be specifically calculated up to the date of settlement. It is the financial award given for pecuniary loss
General damages - this refers to the amount of damages/money that are awarded for non-pecuniary loss. They are awarded by looking forward after the trial date and estimating the financial award that the claimant might need in the future
What would the second half of compensatory damages be?
-Lump sum settlements- This is where the damages are awarded in full and the C is supposed to invest the money. The courts will always award a lump sum settlement if the claim is just for pain and suffering
-Structured settlements - This will allow the parties to agree a settlement where payments will be made for life or over a specific time period
What would you say for the mitigation of loss ao1?
The claimant is entitled to be compensated for their loss but they are under a duty to keep this loss to a reasonable level
What are the 3 available injunctions ao1?
Three available injunctions:
-Ordered in the middle of a case: The injunction will require one party to disclose documents or not to continue with a certain action until the hearing has taken place
-Perpetual injunction: It will require one person to discontinue a course of action
-Mandatory injunction: it requires one of the parties to carry out a certain type of action
What is the AO2 for defences and remedies split into?
Defences
-Contributory Negligence
-Consent (Volenti)
Remedies
-Application
What is the application for contributory negligence?
-How did the C contribute to their injury/damage that they suffered?
-Explain that the damages will only be reduced in accordance to how far the C contributed to their harm
What is the application for consent?
-How do you know the C had knowledge of the risks involved?
-Did the C exercise a free choice? Or, were they forced into making the decision
-Did the C make the decision voluntarily once they were aware of the risks?
What are the application points for remedies?
-Would special damages/general damages be suitable? why?
-Explain that these could be awarded by courts in either lump sum or structured settlement
-Courts will need to consider mitigation of loss when making decision
-If an injunction, which one best suited, why?
