Defences and Remedies Flashcards
What are the requirements for the defence of consent?
The defence of consent is applicable in cases where the claimant has consented to the risk(s) involved and cannot, therefore, complain of the consequential damage.
In order to succeed in this defence the defendant must show that the claimant:
(a) Had capacity to give valid consent to the risks
(b) Had full knowledge of the nature and extent of the risks
(c) Agreed to the risks of injury
(d) Agreed voluntarily
If successful, consent acts as a complete defence. The claimant gets no damages.
What constitutes the capacity to give valid consent to the risks?
The first requirement for the defence of consent that the defendant must prove is that the claimant had the mental capacity to consent to the risk(s). This is normally straight forward, unless the claimant is, for example, a young child.
Key case: Reeves v Commissioner of Police for the Metropolis [2000] 1 AC 360
A prisoner took his own life whilst in police custody. It was alleged that the police were responsible for his death. The police were aware that he was at risk of taking his own life. Having confirmed that the police owed a duty of care to the prisoner to prevent him from taking his own life, the House of Lords stated that the defendants could not use an argument of consent in relation to the deceased’s action as this was the very action that they were required by their duty of care to prevent. The claimant did not have the requisite capacity to consent to the risk associated with taking his life. However, damages were reduced by 50% for contributory negligence.
What constitutes full knowledge of the nature and extent of the risks?
Key case: Morris v Murray [1991] 2 QB 6
The claimant accepted a lift with a drunken pilot. The claimant was also drunk, and this had to be taken account of by the court in determining whether he appreciated the danger involved. The court held that the claimant was not so drunk as to be incapable of understanding the nature and
extent of the risk, and he willingly embarked on the flight knowing the defendant was drunk and likely to be negligent.
What constitutes agreeing to the risk of injury?
The third requirement for the defence of consent, is that the claimant agreed to run the risk of injury due to the defendant’s negligence. This agreement can be express or implied. Like the previous requirement, this is also subjective. Knowledge of the risk alone is not the same as consenting to it.
Key case: Dann v Hamilton [1939] 1 KB 509
The claimant was a passenger who knew the driver was under the influence of drink but the defence of consent failed when the driver negligently caused an accident: knowing the risk did not mean that she (the claimant) had impliedly consented to the risk (ie agreed to waive any liability for any negligence on the driver’s part).
So what sort of conduct does indicate implied agreement to the risk?
The case of Morris v Murray [1991] 2 QB 6, previously discussed, is an example where the agreement was implied. That judgment suggests that where the activity was ‘like engaging in an intrinsically and obviously dangerous occupation, [like] intermeddling with an unexploded bomb or walking on the edge of an unfenced cliff’ then that is going to make it much easier to argue
that agreement is implied. In Morris, the claimant accepted a lift with an obviously drunken pilot, and so the risk of injury was so great that this was indeed the equivalent of ‘meddling with an unexploded bomb’, and an implied agreement to run the risk of injury could be established. The claimant had been drinking with the pilot beforehand, helped the pilot prepare the plane and conditions were so bad, flights had been suspended that day. The risks were so glaring that the claimant agreed to the risk of injury.
It seems unlikely that any risk short of engaging in an intrinsically and obviously dangerous occupation will give rise to implied consent. The defence of consent therefore appears difficult to establish.
In sport, the courts have held that by willingly engaging in the sport, the claimant voluntarily agrees to the risks inherent in that sport but not to risks which are not inherent in that sport eg serious foul play in football.
What constitutes agreeing voluntarily?
The fourth requirement for the defence of consent, is that the claimant agreed to run the risk of injury due to the defendant’s negligence voluntarily. The defence cannot succeed unless the claimant acted voluntarily ie the claimant decided to subject themselves to the risk free of any
constraint.
Key case: Smith v Charles Baker & Sons [1891] AC 325
The claimant was hit by a rock from a crane whilst at work. It was stressed that the requirement of voluntary consent was in addition to knowledge of the risk. Employees who know of the risks of
their jobs are not necessarily voluntarily running those risks, since they may have little real option if they wish to keep their job. It is therefore very difficult (although not impossible) to succeed with the defence of consent where the claimant is an employee.
The concept of voluntarily agreeing to risks is relevant in considering rescue cases.
Key case: Baker v T.E. Hopkins & Sons Ltd [1959] 1 WLR 966 A doctor was held to be a rescuer when trying to save some workmen trapped down a mine. Dr Baker knowingly descended into a well containing poisonous fumes in an attempt to rescue two of
the workers and died from the fumes. Dr Baker had capacity, knowledge of the nature and extent of the risk and had agreed to the risk. However, the agreement to the risk was not voluntary. He acted out of an impulsive desire to save life rather than freely agreeing to the risk created by the defendant’s negligence.
How may consent be negated by statute?
(a) Section 149 of the Road Traffic Act 1988 prevents the use of consent by motorists facing claims from their passengers. For example, a drunk driver cannot rely on consent to defeat the claim of a passenger who voluntarily accepts a lift and is injured as a result.
(b) Section 2 of the Unfair Contract Terms Act 1977 applies to defendants acting in the course of business (but does not apply where the claimant is a consumer). Section 2(1) prohibits defendants excluding or restricting liability for death or personal injuries resulting from negligence. Under s 2(2) other types of loss may be excluded, subject to a test of reasonableness. Section 2(3) makes it clear that a person’s agreement to or awareness of a
contract term or notice purporting to exclude or restrict liability for negligence will not of itself be taken as indicating voluntary acceptance of any risk.
(c) Section 65(1) of the Consumer Rights Act 2015 prohibits traders, when dealing with
consumers, from using contract terms/notices limiting or excluding liability for death or personal injury through negligence. Other damage is subject to s 62 - an exclusion clause is only binding if it is fair. Section 65(2) states that voluntary acceptance of risk cannot be assumed merely because the consumer agreed or knew about the term.
What is the legal test for contributory negligence?
The defendant will need to show that:
- The claimant failed to take reasonable steps for their own safety; and
- This failure contributed to the claimant’s damage.
In relation to the first requirement, the claimant is less likely to be found at fault if they needed to act in an emergency, if they are a child or if they are a rescuer.
* In relation to the second requirement, the claimant’s fault must have contributed to the damage suffered, although it need not contribute to the accident.
* If contributory negligence is established, then the damages are reduced by a percentage which is just and equitable, and the court has considerable discretion.
A finding of contributory negligence reduces the liability of a defendant in relation to the harm their breach of duty has caused the claimant to reflect the claimant’s role in the harm they suffer.
In practice, this means the claimant’s damages are reduced by a percentage the court thinks just and equitable having regard to the claimant’s share in the responsibility for the damage. Contributory negligence is therefore a partial defence.
What is the test for illegality?
- Did the claimant commit an illegal (or grossly immoral) act?
- If yes, apply the Patel v Mirza test taking into account earlier decisions which turn on similar facts:
(i) What was the underlying purpose of the prohibition transgressed and will that purpose be enhanced by denying the claim (what are the policies supporting the defence of illegality);
(ii) Other relevant public policy on which denial of the claim may have an impact (what are the policies that favour denying the defence of illegality); and
(iii) Whether denying the claim would be proportionate to the illegality.
Potentially relevant factors when considering proportionality: seriousness of the conduct, its centrality to the tort or contract, whether it was intentional and whether there was marked disparity in the parties’ respective culpability. It seems the loss must be directly caused by the illegal act, making it contrary to public policy to award the claimant damages.
Pre Patel case law generally remains good law where the facts are materially the same.
What is the legal test for necessity?
- Necessity is a complete defence meaning if the defence is successful, the claimant will not receive any damages.
- Necessity is rarely argued as a defence to negligence, and it is unclear as to whether it applies to negligence.
- In order to succeed with the defence of necessity, the defendant must prove that they:
(i) Were acting in an emergency to prevent harm to the claimant, third party and/or the
defendant themselves. This test is subjective; and
(ii) Were not at fault in causing the emergency. The necessity to act must arise without the defendant’s negligence.
What are general damages?
General damages cover future financial losses, which cannot be specifically proven, and nonquantifiable losses such as compensation for physical injury.
Compensation for the pain and suffering.
The pain and suffering are non-quantifiable in money terms, but money is provided to compensate for them. The technical term for this is the award for ‘pain, suffering and loss of amenity’.
* Loss of earnings after the date of the trial.
* Cost of adapting house.
* Any medical expenses that the claimant will incur after the date of the trial.
What are special damages?
Special damages cover specifically provable and quantifiable financial losses at the time of trial. For example, loss of earnings incurred before trial.
What is the PSLA?
There are two parts to this award. The element of ‘pain and suffering’ covers just that, whereas the ‘loss of amenity’ attempts to compensate for the effect of the injury on the claimant’s lifestyle, for example if they can no longer swim or walk. The size of the ‘loss of amenity’ element of the award will, of course, depend on how active the claimant was prior to the injury and what
they have been prevented from doing as a result of the injury.
Despite there being two elements to the PSLA, the award will always be expressed as an overall single lump sum.
Whilst it is impossible to attach a specific value to any particular injury and its effects, in the absence of any better method this is precisely what the courts have attempted to do. A body of case law has built up which is used as a source of reference by the courts in determining the level of compensation a claimant may receive. Such case law can be found in a publication known as Kemp & Kemp.
How are general damages calculated?
For one-off future expenses a lump sum will be given, eg the cost of adapting the home.
The situation is more complex when there is a continuing loss such as future loss of earnings or recurring expenses of medical treatment or care. The basic approach is to take the annual expense and multiply it by the number of years the loss will continue to be suffered. This is known as the multiplier/multiplicand approach. However, to simply use, as the multiplier, the claimant’s life expectancy or predicted number of years they will continue working would be unrealistic. As already stated, damages are designed to be compensatory. The court is also wary to avoid overcompensation. The court works on the assumption that the lump sum award it will make will be invested and the figure it awards, in effect, aims to provide the claimant with a sufficient income
from the investment to replace what they have lost. If an actual number of years were to be used as a multiplier, the sum awarded, when invested, would result in the claimant being massively over-compensated.
What deductions will be made from damages?
Once the damages have been calculated it may be appropriate to make one or more of the following deductions from the sum assessed:
* Any state benefits received by the claimant as a result of their injury, such as unemployment benefit if they have been prevented from working. State benefits can be deducted from compensation for lost earnings; cost of care; and loss of mobility. The defendant pays the amount deducted back to the State.
* Any contractual sick pay they have received as a result of their injury.
* Any redundancy payment, if the redundancy resulted from the injury.
These deductions are made to avoid the claimant receiving two sums of money for the same reason.
The overall sum reached may be further reduced by virtue of any finding of contributory negligence.
Insurance pay-outs, ill-health pensions and any sums received by way of gifts or charity will not be deducted.
What damages are available if someone dies as a result of a tort?
- Under the Law Reform (Miscellaneous Provisions) Act 1934, their estate can claim for any losses suffered by the deceased up to the date of death.
- Under the Fatal Accidents Act 1976, certain family members may be able to claim
compensation if they depended on the deceased. They may also be able to claim a
bereavement award and/or funeral expenses.
