Defences and Remedies Flashcards
What is contributory negligence?
When the pursuer contributed to his or her loss through their own negligence.
What is the outcome when contributory negligence is established?
Damages will be reduced by a proportion to reflect the defenders contribution.
What is the leading case in contributory negligence?
Jackson v Murray
- 13 year old girl crossed the road behind a bus and got hit by a car.
- in lower court held 90% her fault 10% defender’s fault.
- in appeal court held 70% her fault 30% defender’s fault
- in Supreme Court held 50% her fault 50% defender’s fault. (Important/unusual)
A finding of contributory negligence on the part of a child will depend on:
- the nature of the particular danger
- the child’s capacity to appreciate its danger
What is the defence of volenti non fit injuria and what happens when it is established?
- the pursuer knowingly consented to run the risk of injury
- where established this is a complete defence
What defence is Damnum Fatale?
This is an attempt to pin the blame for a harmful event on an extraordinary natural occurrence.
What happens if the defence of damnum fatale is established?
- if successful it establishes that the defender was not at fault
- unless liability in the circumstances is absolute it will exonerate the defender
What is the defence of Ex turpi causa non oritur actio? It is complete or not?
Where the pursuer was involved in some relatively serious crime or immoral activity at the time the harm occurred.
It is a complete defence.
What are the 3 remedies?
- Declarator
- Interdict
- Damages
What is declarator?
- a statement concerning the rights of the petitioner.
- accompanied by another remedy (damages or interdict)
What is interdict?
- restrains activity but must be ‘in wider than necessary’
- petitioner seeks interdict against the respondent
What is the Latin phrase for damages?
“Restitutio in integrum”
What are the 2 types of claim for damages?
- Patrimonial
- Solatium
What is raised by the victims relatives under s.6 Damages (Scotland) Act 2011?
Where the victim dies outright, the relatives’ claim for loss of services that might have been rendered to them by the victim had he lived.
Solatium damages if victim lives:
- damages incurred for pain and suffering
- common law