Defences & Principles of Remedies for PI and Death Claims Flashcards
What kind of defence is consent?
A complete defence
What are the two elements to be established for the defence of consent?
- Claimant had full knowledge of the nature & extent of the risk, and
- Claimant willingly consented to accept the risk of being injured due to defendant’s negligence
What kind of defence is contributory negligence?
Partial defence
To what extent will judges reduce damages upon a finding of contributory negligence?
Just and equitable extent; considering claimant’s share in responsibility for the damage
What are the two elements of contributory negligence?
- Carelessness from claimant
- Carelessness contributed to claimant’s damage
What standard is a child judged on for carelessness?
Reasonable child of the same age
In what event would rescuers be likely to be found contributorily negligent?
If they have shown a “wholly unreasonably disregard for their own safety”
What will judges take into account on the behalf of an employee when considering if they were contributorily negligent?
The nature of the job and the impact that would have on being more careless, i.e. if it is repetitive / boring
What is the standard for claimants acting in “agony of the moment” situations regarding contributory negligence?
Whether their actions were reasonable in the moment (disregarding hindsight)
What kind of a defence is illegality?
Full defence
In what way is public policy a consideration for the defence of illegality?
Damage should arise directly out the illegal activity in such a way that it would be contrary to public policy for court to allow the claimant a remedy
What are the two non-pecuniary losses which make up personal injury?
Pain and suffering (which they were aware of, i.e. not if they were unconscious)
Loss of amenity
How do courts quantify non-pecuniary damages?
Have to consider individual facts of the case
Amount of compensation determined using the Judicial College Guidelines, Kemp and Kemp and previous case law
If a claimant has paid for private medical, does this have any impact of their duty to mitigate losses?
No
What is the formula for the courts to calculate loss of earnings post-trial?
NET Annual Loss (gross salary minus tax, NI and pension contributions; can include promotion prospects but not inflation) LESS Period of Future Loss (considering interest rates and inflation)
