Negligence Part Two Flashcards
What 2 parts of DAMAGE must be satisfied?
DAMAGE has 2 parts that must be satisfied: causation and remoteness
What will the court apply for factual causation?
For factual causation the court will apply for the “but for test” and ask whether the damage would have occurred but from the defendant’s breach of duty, (BARNETT v CHELSEA)
What will the court consider for legal causation?
For legal causation the court will consider whether the defendant is the operating and substantial, significant, more than minimal cause of the injury.
What will break the chain of causation?
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 GOVT), or due to a third party KNIGHTLY v JOHNS)
What is the defendant liable for, for remoteness?
For remoteness, the defendants liable for the type of damage taken was reasonably foreseeable at the time of the breach, (THE WAGON MOUND (No1))
(IF RELEVANT) What if the full extent of the damage wasn’t reasonably foreseeable at the time of the breach?
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)
(IF RELEVANT) What if there is a hidden weakness of the claimant?
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)
How does the Law Reform (Contributory Negligence) Act of 1945 affect damages?
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).
What is required for the defence of consent (volenti non fit injuria) to succeed?
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).
(IF RELEVANT) What is the purpose of compensatory damages under the Damages Act 1996?
As a remedy, for C’s personal injury the court may award compensatory damages under the DAMAGES AC 1996, where the aim is to out the claimant in their pre tort position.
(IF RELEVANT) What are examples of financial (pecuniary) losses in a negligence claim?
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.
(IF RELEVANT) What are examples of non-financial (non-pecuniary) losses in a negligence claim?
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.
(IF RELEVANT) What does the duty to mitigate loss mean for a claimant?
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).
