Defences & Remedies

Question 1

Damages are the primary remedy for…

Answer 1

Damages are the primary remedy for negligence, trespass (to land and to the person), defamation, and claims against manufacturers for defective products.

Question 2

Injunction

Answer 2

Orders of the court directing a party either to do something (i.e. mandatory injunctions) or to refrain from doing something (i.e. prohibitory injunctions).
In a sense, these come before harm and operate to prevent it from materialising (or at least to its worst potential).

Question 3

Damages

Answer 3

Monetary compensation. Generally aimed at putting the injured party in the same position as they would have been if the tort had not occurred (restitutio in integrum).
Beyond compensatory damages, other types exist, including exemplary damages, aggravated damages, contemptuous damages and nominal damages.

Question 4

Default remedy for nuisance

Answer 4

An injunction, unless D convinces the court otherwise
see Coventry v Lawrence
The grant of planning permission is not in itself a defence to nuisance, but its terms are relevant to assessing reasonable user
The existence of planning permission could justify refusal of an injunction and the award of damages in lieu

Question 5

Shelfer v City of London Electric Lighting Co

Answer 5

Smith LJ’s four conditions to grant damages in lieu of an injunction:

 - Injury to C is small; 
 - Capable of estimation
 - Capable of being compensated
 - Injunction is oppressive to D.

Cf Coventry v Lawrence – Shelfer is too restrictive.

Question 6

Miller v Jackson [1977]

Answer 6

damages in lieu because of public interest in cricket.

Question 7

Kennaway v Thompson [1981]

Answer 7

Shelfer’s approach is preferred where the default is an injunction in nuisance.

Question 8

Raymond v Young

Answer 8

full injunction + damages for historical nuisance possible.

Question 9

Damages in lieu of injunction

Answer 9

Hunter v Canary Wharf [1997]
For the decrease in land value

Question 9

Bone v Searle [1975]

Answer 9

damages in lieu of injunction for loss of amenity

Question 10

Damages in lieu of injunction for economic loss

Answer 10

Has to be consequential economic loss and tied to the land

Question 11

Interim injunctions and abatement

Answer 11

American Cynamid v Ethicon [1975]

Question 12

Compensatory Damages

Answer 12

Awarded for C’s loss.

The purpose is to put C (the party who has been injured or who has suffered—as far as money can do so) in the same position they would have been in if they had not sustained the wrong, paraphrasing Lord Blackburn in Livingstone v Rawyards Coal Co [1880].

Question 13

Compensatory damages:
Pecuniary vs non-pecuniary losses

Answer 13

Pecuniary losses: related to money – loss of income, care expenses, medical expenses, etc.

Non-pecuniary losses: compensation for pain and suffering, loss of amenity (enjoyment), distress, injury, disfigurement or impairment.

E.g. in loss of amenity, money may be awarded to reflect the loss of happiness (enjoyment).

Injuries have prices

Question 14

Exemplary (Punitive) damages

Answer 14

(Higher than usual) amount of money awarded to C to punish the tortfeasor (D) and to deter D and other wrongdoers from engaging in unlawful conduct in the future.

Purpose: set an example or punish

Question 15

Huckle v Money [1763]

Answer 15

Explemary punitive damages given.
King George III attempted to muzzle dissent. He authorised a non-specific warrant, which the court saw as being against the whole nation.

Question 16

Aggravated damages

Answer 16

Damages to compensate for mental distress or injury to feelings caused by the manner or motive with which a wrong was committed or by the defendant’s conduct subsequent to the wrong

WCC v Steer [2019] – action for sexual assault in childhood. The Court awarded £10,000 in aggravated damages.

Question 17

Contemptuous damages

Answer 17

A minimal sum of damages when, although the claimant is technically entitled to succeed, the court thinks that the action should not have been brought.

Dering v Uris [1964] – libel in the footnote of a novel that C participated in medical experiments at Auschwitz. C argued about context (duress) and disputed a few details, but they did participate

Question 18

Nominal damages

Answer 18

Awarded where a legal wrong has been committed, but C has not suffered a consequential (recognised) loss.

i.e. C’s rights have been infringed, but C suffers no damage.

It may be awarded to recognise the legal wrong.

Relevant for torts actionable per se.

Constantine v Imperial Hotels Ltd [1944] – black cricketer refused accommodation. He was able to secure accommodation elsewhere.

Question 19

Volenti non-fit injuria

Answer 19

‘[one] who has invited or assented to an act being done towards him cannot, when he suffers from it, complain of it as a wrong’
- (Smith v Baker [1981] at 360, per Lord Herschell)

- C either agreed to harm that materialized (e.g. consent in medical cases);  C voluntarily took the risk of harm that materialized.

Question 20

Second requirement

Answer 20

2. C voluntarily agreed to it; genuine freedom of choice, provided expressed or implied consent.
   Scott LJ in Bowater v Rowley Regis Cop [1944] KB 476 - Hard to prove in employer liability cases as the constraints of work tend to impose on free will. Meaning the claimant is likely to succeed in the claim.

    Smith v Baker (1891) – HL rejected the Volenti defence where C complained about the danger to his employee.

Cf ICI v Shatwell (1965) – HL accepted the defence where shotfirers ignored safety precautions while testing detonators.

Question 20

Volenti Non Fit Injuria
First requirement

Answer 20

1. C knew the nature and extent of the risk of harm;
   Knowledge of risk is necessary but not enough:
   Dann v Hamilton [1939] – Even though C knew driver had been drinking, she did not absolve him from liability in the event of injury.
   Held: knowledge of risk not sufficient.

Cf Morris v Murray [1991] – C went on a ride on D’s light airplane knowing he had consumed half a bottle of whiskey – Held: C was not so drunk as to not appreciate nature and extent of risk and he willingly went along with D knowing he is very likely to be negligent.

Question 21

Volenti Non Fit Injuria
Agreement can be express or implied.

Answer 21

For the defence to operate, Lord Denning in Nettleship v Weston [1971] stated ‘[N]othing will suffice short of an agreement to waive any claim for negligence. The plaintiff must agree, expressly or impliedly, to waive any claim for any injury that may befall him due to the lack of reasonable care by the defendant.’

However, statute restricts exclusion clauses that aim to waive liability for injury as a result of negligence.

1 & 2 Unfair Contract Terms Act 1977

Question 22

Volenti Non Fit Injuria
context of sport

Answer 22

Blake v Galloway [2004] – Defence will succeed (in relation to players) where the conduct complained off is a necessary part of the game e.g. tackle in Rugby.

Question 23

Ex turpi causa non oritur action

Answer 23

No action may be founded on a bad cause.
Complete defence.
Applies to other causes of action besides negligence and beyond Tort Law.

Question 23

Ex turpi causa non oritur action
Gray v Thames Trains [2009]

Answer 23

C suffered psychiatric illness as a result of D’s negligence. Two years later, he stabbed and killed a man in a road rage. He was convicted on manslaughter and brought an action against D for loss of earnings and losses occasioned by detention and conviction and indemnity against action by victim’s family. Held: He cannot recover.

Question 24

Ex turpi causa non oritur action
Rationale for defence

Answer 24

Patel v Mirza [2016] UKSC 42

The essential rationale of the illegality doctrine is that it would be contrary to the public interest to enforce a claim if to do so would be harmful to the integrity of the legal system, or, possibly, certain aspects of public morality

Question 25

Contributary negligence

Answer 25

D has to prove both:
1. C was at fault
Did C fail to exercise reasonable care for their own safety?
Standard is reasonable person

Jones v Livox Quarries Ltd [1952] – C rode at back of slow-moving vehicle at work. Another vehicle driven negligently hit C’s vehicle and injured him. Held: C must take into account the probability of others being negligent.

2. C’s fault was a cause of the damage Did C’s failure contribute to their injury/loss?

Question 26

Contributory negligence
St George v. Home Office [2008] CA

Answer 26

C (prisoner) fell from his bunk bed during epileptic seizure brought on by alcohol and drug withdrawal. Held: ‘ [C’s] fault not sufficiently closely connected with [D’s] negligence. (cf Badger v MoD [2006] – C’s choice as smoker contributed to his cancer.)
Note: if wearing seat belt, crash helmet or protective gear would not have prevented the injury, there will be no CN – Stanton v Collinson [2010]

Question 27

Reduction of damages for contributary negligence

Answer 27

S.1(1): “…the damages recoverable in respect thereof shall be reduced to such extent as the court thinks just and equitable having regard to the claimant’s share in the responsibility for the damage.”