Defences and Remedies

Question 1

What is the defence of consent?

Answer 1

Complete defence. Arises in two situations:

1) C consents to the specific harm caused by D (e.g. inviting D to damage C’s property); and

2) C consents to the risk of harm (e.g. getting into a plane with a drunk pilot)

Question 2

What is the test to establish the defence of consent?

Answer 2

To establish the defence, C at the time must have:

1. Had full knowledge of the nature and extent of the risk (meaning claimant must know what the risk is and the potential harm it could cause); AND
2. Willingly consented to accept the risk of being injured due to the defendant’s negligence

This is a subjective test - you must see if the claimant themselves knew of the full extent of the risk and consented to it.

Question 3

When will the defence of consent not operate?

Answer 3

1) Section 149 Road Traffic Act 1988: defence of consent is invalid for drivers of motor vehicles against claimant passengers

2) Defence will only apply where C chooses to run the risk voluntarily. Therefore, cannot apply in employer- employee situations and rescue situations (on basis that rescuer acted out of moral compulsion).

Question 4

What is the defence of illegality?

Answer 4

Complete defence. C cannot recover damaged for losses they suffer while engaging in a criminal act. The injury must have occurred at the time the criminal act was done.

But, if the illegal act is trivial or only forms the background to D’s negligence, illegality will not apply.

Question of fact + common sense and public policy

Question 5

What is contributory negligence?

Answer 5

Reduced the damages owed to C if C’s own negligence contributed to their injury (eg not wearing a seatbelt). It is not a defence that defeats a claim.

Question 6

How do you establish contributory negligence?

Answer 6

1) C must have failed to have taken reasonable care for their own safety: use an objective standard: ask whether a reasonable person in C’s position would have done what C did

2) The failure must have contributed to C’s loss: some contribution must have been made to the injuries C suffered. eg not wearing a seatbelt

If C is careless but it doesn’t have any effect on the injury this doesn’t count.

The court then decides by how much the damaged should be reduced. The court looks at the proportion by which C’s carelessness contributed to the injury. If it contributed 33% to the injury - 33% reduction etc.

Question 7

What is the defence of necessity?

Answer 7

A defence for medical professionals who act on incapacitated patients (and cause injury)

Question 8

What is the test for the defence of necessity?

Answer 8

A medical professional will not incur liability for treating a patient permanently or temporarily incapacitated provided that:

• they take reasonable steps to establish that the patient lacks capacity
• they reasonably believe that the patient lacks capacity
• it is in the best interests to act

Note: If the incapacity is only temporary the professional should still act if in best interests, but if there is a long-term problem/decision that can be decided later, they should take that into account before acting.

Question 9

What are the different kinds of damages the court can award the claimant?

Answer 9

1. Exemplary damages: to punish D
2. Aggravated damages: to award C for a greater degree of suffering than would be expected
3. Contemptuous damages: C won but acted poorly during proceedings or did not settle
4. Nominal damages: a legal wrong has been committed but C suffered no harm
5. Compensatory damages: designed to put C in the position they would have been in had the tort not occurred

Question 10

What compensation will a claimant be awarded if they are injured and can no longer work?

Answer 10

• A sum that reflects what they would have earned had they not been injured.
• Damages for the specific injury according to court guidelines
• Damages for expenses (such as medical expenses) incurred as a result of the injury, both up to trial and in the future
• Any cost of care, past and future (such as carers), provided that such costs are reasonable
• Non-pecuniary losses (pain, suffering, distress)

Question 11

What are the types of compensatory damages?

Answer 11

There are two:

1) Special damages: to cover costs (eg medical costs)/loss of earnings plus interest already incurred by C up to the date of trial. These are easily quantifiable. They are past costs.

2) General damages: future loss of earnings, future medical costs and other general losses such as emotional pain, suffering and amenity. These are not easily quantifiable. They are future losses. The cost of future care is recoverable provided that is is reasonably incurred.

Question 12

How does the court calculate future loss of earnings?

Answer 12

1. The court uses a multiplicand (the salary lost as a result of not being able to work because of the injury)
2. Multiplies it by the multiplied (how many years C can no longer work)
3. Applies a discount to the multiplier to reflect the fact the money could be invested.

Note: courts can also impose a Periodical Payment Order

Question 13

What is a Periodical Payment Order?

Answer 13

These provide periodical payments to a claim over time to compensate them for a loss of earnings due to injury, rather than a lump sum being given.

They allow for flexibility as they can be adjusted by the court (eg if C’s condition worsens)

Question 14

How is the death estate of a claimant who dies as a result of the defendant’s negligence compensated?

Answer 14

The claimant’s death estate can bring the claim, and the dependants of C can get compensation for their pecuniary losses as a result of D’s actions

Dependants can make a claim for:
- Bereavement
- Loss of earnings provided to the household by the deceased (up to date of natural death)
- “Value of service” of the deceased (e.g. childcare costs)

Question 15

Can children make a claim for bereavement?

Answer 15

No, children are not on the statutory list of people who can claim.

Question 16

What are the four defences?

Answer 16

1. Consent (complete defence)
2. Illegality (complete defence)
3. Contributory negligence
4. Necessity (rare in negligence)

Question 17

What are the four elements to proving the defence of consent?

Answer 17

1. Had capacity to give valid consent to the risks
2. Had full knowledge of the nature and extent of the risks
3. Agreed to the risk of the injury
4. Agreed voluntarily e..g employees who know of the risks of their jobs are not necessarily voluntarily running those risks.

Question 18

How is illegality as a defence proved?

Answer 18

1) Has the claimant committed an illegal (or possibly grossly immoral) act at the time they suffered their loss caused by the defendant? If no such illegal act, defence does not apply.

2) Apply test in Patel v Mirza:
- what is the underlying purpose of prohibition which has been transgressed and will that purpose be enhanced by denial of the claim?
- other relevant public policy considerations
- would denying the claim be a proportionate response to the illegality?

Consider: seriousness of the conduct, is it central to the tort (causal link between tort and illegality?), intentional, marked disparity in the parties’ respective culpability?

Question 19

How do you establish contributory negligence?

Answer 19

Claimant failed to take reasonable steps for their own safety; and

This failure contributed to the claimant’s damage

Question 20

What is the legal test for necessity?

Answer 20

Applicable acted to save life, limb or property.

Defendant must prove:
1. Were acting in an emergency to prevent harm to the claimant, a third party and/or defendant themselves; and
2. Were not at fault in causing the emergency

Question 21

What are the two principle remedies for tort?

Answer 21

1. Damages: means an award of money. It is by far the most common remedy for a claim in tort.
2. Injunctions: an order forcing the defendant to act or preventing the defendant from acting in a certain way - rare, usually only suitable for certain cases such as land-based torts.

Question 22

On what basis are damages awarded in tort?

Answer 22

Usually on a compensatory basis - to put the claimant in the position they would have been in had the tort not happened.

Can be categorised into:
- Special damages; and
- General damages

Question 23

Who bears the burden of proving consent?

Answer 23

It is for the defendant to prove a defence on the balance of probabilities.

Question 24

When might consent be negated by statute?

Answer 24

s149 Road Traffic Act 1988 - prevents use of consent by motorists facing claims of passengers - ie drunk driver cannot rely on consent to defeat claim of passenger who voluntarily accepts lift. (note: can claim contributory negligence)

s2 Unfair Contract Terms Act 1977 - applies to defendants in course of business.
- Prohibits defendants excluding or restricting liability for death or personal injuries resulting from negligence.
- Other types of losses may be excluded subject to test of reasonableness.
- A person’s agreement to or awareness of a contract term or notice to exclude/restrict liability for negligence will not of itself be taken as indicating voluntary acceptance of any risk.

S65(1) Consumer Rights Act 2015 - prohibits traders from using contract terms/notices limiting or excluding liability for death or personal injury through negligence.
- An exclusion clause for other damage will only be binding if it is fair.
- voluntary acceptance cannot be assumed merely because the consumer agreed or knew about the term.

Question 25

What is the effect of contributory negligence?

Answer 25

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.

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.

Partial defence.

Question 26

How is the claimant’s failure to take reasonable steps for contributory negligence assessed?

Answer 26

Claimant is required to take the same degree of care that a reasonable and prudent person would take. Objective standard.

Allowances are made for claimants who have been placed in an emergency or difficult dilemma (eg claimants who are injured whilst trying to save themselves).

If claimant is a child, court will take into account their age in determining standard of care.

Rescuers generally protected from contributory negligence - unless helped to create emergency in first place.

Question 27

What deduction during contributory negligence is made?

Answer 27

Court has a discretion on how great a reduction to make.

Where the defence of contributory negligence has been established damages are reduced by a percentage which is just and equitable considering both the claimant’s and defendant’s culpability.

25% reduction if wearing a seatbelt would have avoided injury.

15% if it would have reduced injury.

0% if it would have made no difference.

Question 28

What are the special considerations for contributory negligence?

Answer 28

1. Emergencies/difficult dilemmas
2. Age of claimant
3. Rescuers
4. Nature of duty

Question 29

What are special damages?

Answer 29

Cover specifically provable and quantifiable financial losses at the time of trial. For example, loss of earnings incurred before trial.

Question 30

What are general damages?

Answer 30

Cover future financial losses, which cannot be specifically proven, and non-quantifiable losses such as compensation for physical injury.

Question 31

What is PSLA

Answer 31

Pain, suffering and loss of amenity award.

Pain and suffering - evident

Loss of amenity - compensate for the effect of the injury on the claimant’s lifestyle, eg can no longer swim or walk.

Despite two elements, expressed as an overall single lump sum.

Question 32

How are future losses calculated

Answer 32

Annual expense and multiply by the number of years the loss will continue to be suffered.

Works off assumption that lump sum will be invested - avoids over-compensation.

Question 33

What deductions can be made to damages?

Answer 33

• Any state benefits (eg unemployment benefit from not working) - paid back to state
• Any contractual sick pay as a result of injury
• Any redundancy payment if resulted from injury

Overall sum pay be reduced by any finding of contributory negligence.

Not deducted: insurance pay-outs, ill-health pensions, any sums received by way of gifts or charity.

Question 34

What damages can be brought when a claimant dies?

Answer 34

The estate may bring a claim for any losses (both pecuniary and non-pecuniary) suffered by the deceased as a result of an accident up to date of death.

Calculated on same basis as a normal personal injury award.

No claim can be made for any losses that might have arisen after the date of death.

No claim for death itself, nor can someone bring a claim for loss of life expectancy if about to die.

Question 35

Who can bring a claim under the Fatal Accidents Act 1976?

Answer 35

1. Must be on statutory list of people who can claim.
2. Must be financially dependant on the deceased.

Any dependants of the deceased to claim for any losses suffered as a result of the death.

Can also recover funeral expenses if paid for by the dependants.

Dependants are close blood relations and those related by marriage or who have cohabitated for over two years.

Question 36

Who can claim bereavement damages?

Answer 36

The spouse, civil partner or cohabitating partner of the deceased or the parents of an unmarried minor (mother only if child is illegitimate).

Amount payable is a fixed sum.

Cohabitating partner must have been living with deceased at time of death and for at least two years before that date.