Negligence: Damages, Defences and Remedy: Part 3 Flashcards
- DAMAGE has two parts that must be satisfied…
a. For Factual Causation…
b. Here…
DAMAGE has two parts that must be satisfied: Causation and Remoteness.
CAUSATION
For Factual Causation, the court will apply the ‘but for test’ and ask whether the damage would have occurred but for the defendant’s breach of duty, (BARNETT v CHELSEA).
Here, [eg. D was the factual cause of C’s damage as he would not have broken his leg but for/without D driving whilst texting].
- For Legal Causaution
a. A Reasonably Foreseeable
b. The Act could be by Claimant
c. Here…
For Legal Causaution, the court will consider whether the defendant is the operating and substantial, significant, more than minimal cause of the injury.
A reasonably foreseeable ‘Novus Actus Interveniens’ will break the chain of causation.
The act could be by the Claimant, (McKEW v HOLLAND), due to Nature as in (CARSLOGIE v ROYAL NORWEGIAN GOVERNMENT), or due to a Third Party (KNIGHTLY v JOHNS).
Here, [eg. there was no intervening act so legal causation is satisfied.
OR
Here, [eg. there was an intervening act when C ran into the busy road, but this was reasonably foreseeable and so legal causation is satisfied / D built the shed poorly, but it was a tornado that caused it to injure C, which was not reasonably foreseeable, and so legal causation is not satisfied as the chain of causation is broken].
- For Remoteness D is Liable for the type of damage that was reasonably…
a. Here…
For Remoteness, the Defendant is liable for the type of damage that was reasonably foreseeable at the time of the breach, (THE WAGON MOUND (No1)).
Here, [eg. C’s damage was not too remote as it was a type that was reasonably foreseeable at the time of D’s breach of duty because if someone drives whilst texting it is reasonably foreseeable that a pedestrian will suffer personal injury OR here, C’s damage may be considered too remote under the Wagon Mound test, as it is unforeseeable that if someone becomes ill they will lose out on a promotion at work].
- IF RELEVANT: The Defendant will be liable for the full extent of the damage even if the full extent was not reasonably foreseeable at the time of the breach…
[IF RELEVANT]
The Defendant will be liable for the full extent of the damage, even if the full extent was not reasonably foreseeable at the time of the breach, as long as the general type of damage was reasonably foreseeable, (BRADFORD v ROBINSON RENTALS).
Here [eg. D will be liable for the full extent of C’s injuries even though paralysis was not reasonably foreseeable, because some type of personal injury was reasonably foreseeable at the time of the breach.
- IF RELEVANT: The Defendant will be liable for the damage even if it was not reasonably foreseeable at the time of the breach due to a Hidden Weakness…
[IF RELEVANT] The Defendant will be liable for the damage, even if it was not reasonably foreseeable at the time of the breach due to a Hidden Weakness of the claimant, as long as the general type of damage was reasonably foreseeable. This is known as the ‘Thin Skull Rule’ where the defendant must ‘take his victim as he finds them’, (SMITH v LEECH BRAIN).
- Here, [eg. D will be liable for C’s injuries even though paralysis was not reasonably foreseeable due to a hidden weakness as some type of personal injury was reasonably foreseeable at the time of breach and D must take his victim as he finds them under the Thin Skull Rule].
TO CONCLUDE, causation and remoteness are satisfied, so the issue of damage will be proved by C. [Note: must have factual AND legal causation AND remoteness].
- There are Two Defences that may apply….
a. The Law Reform (Contributory Negligence) Act 1945 provides that any damages to the Claimant can be reduced…
Here…
There are Two DEFENCES that may apply.
[Explain and Apply only those which are Relevant]
The Law Reform (Contributory Negligence) Act 1945 provides that any damages to the claimant can be reduced by a percentage according to the extent to which the claimant has contributed to their own injuries, with even 100% a possibility, (SAYERS v HARLOW).
Here, [eg. C’s damages will be reduced by a percentage as he partly caused his own injuries when he didn’t wear a helmet].
- Volenti non fit injuria (consent) is a full defence, apart from in…
Volenti Non Fit Injuria (Consent) is a Full Defence, apart from in road traffic cases, where the claimant fully understood the nature of the risk rather than just being aware of its existence, and exercised free choice, (NETTLESHIP v WESTON).
Here, [eg. C did fully understand the nature of the risk when he walked up the ladder that he knew was broken, and clearly exercised free choice when accepting the risk, so D can rely on the defence of volenti.
- ONLY DISCUSS REMEDY IF ASKED FOR:
a. As a REMEDY, for C’s personal injury the court may award compensatory damages
b. Pecuniary (financial) losses will be claimed, such as…
ONLY DISCUSS REMEDY IF ASKED FOR:
As a REMEDY, for C’s personal injury the court may award compensatory damages under the DAMAGES ACT 1996, where the aim is to put the claimant in their pretort position.
Pecuniary (Financial) Losses will be claimed, such as medical bills, loss of earnings up to the trial and repair/replacement of property. Special damages will be awarded for these losses.
- Non-pecuniary (nonfinancial) losses will be claimed, such as loss of…
C is under a duty to mitigate loss, which means to…
- HERE [apply the losses C has suffered, and the damages C will receive as a result]
Non - Pecuniary (Non Financial) Losses will be claimed, such as loss of amenity, pain and suffering and any post trial losses. General damages will be awarded for these losses.
C is under a duty to mitigate loss, which means to keep the loss to a reasonable level by seeking prompt medical treatment [and/or getting the property repaired or replaced promptly].
- HERE [apply the losses C has suffered, and the damages C will receive as a result]
