Remedies + defences

Question 1

When can D rely on an exclusion of liability defence?

Answer 1

Reasonable steps must have been taken to bring the exclusion notice to C’s attention before the tort was committed; and

The wording of the notice must cover the loss suffered by C.

Question 2

The exclusion of liability defence is limited by the Unfair Contract Terms Act and the Consumer Rights Act.
Explain the limitations to the defence

Answer 2

It is not possible for D to exclude liability for death or personal injury.

Question 3

It is possible for D to disclaim liability for negligent acts causing damage other than death or personal injury. What criterion is required for such a disclaimer to be effective?

Answer 3

It must be reasonable.

Consider:
1. Were the parties of equal bargaining power?
2. In the case of advice, would it have been reasonably practicable to obtain the advice from an alternative source taking into account considerations of cost and time?
3. How difficult is the task being undertaken for which liability is being excluded?
4. What are the practical consequences, taking into account the sums of money at stake and the ability of the parties to bear the loss involved, particularly in the light of insurance?

Question 4

What are the likely defences to an employer’s breach of duty of care?

Answer 4

(a) Contributory negligence.
(b) Consent (voluntary assumption of risk).

Question 5

What are the general defences in tort?

Answer 5

(a) Consent (voluntary assumption of risk).
(b) Contributory negligence.
(c) Illegality.
(d) Exclusion of liability.

Question 6

What is the defence of consent? How is it established?

Answer 6

Consent (volenti non fit injuria) is a complete defence, preventing C from recovering at all.

To succeed, must establish:

(a) That C had full knowledge of both the nature and extent of the risk; and

(b) That C willingly consented to accept risk of being injured due to D’s negligence.

Question 7

Why is consent so hard to raise as a defence?

Answer 7

Because knowledge =/= consent.

Thus, C cannot be said to willingly consent to a risk of being injured by D’s negligence if he merely has knowledge of the risk.

Thus, merely getting in a car with D after D has had some cocktails is only knowledge of a risk. Only where a risk is so glaring that consent must be imputed (for example getting into an aircraft with someone incredibly intoxicated) will the defence apply.

Question 8

Why can’t consent be relied on in road accidents?

Answer 8

Under the Road Traffic Act, in any motor vehicle where insurance for passengers is compulsory, any acceptance of risk by the passenger is invalid and the consent defence cannot be relied on.

Question 9

Why can’t consent generally be relied on by employers as a defence against negligence?

Answer 9

Employees act under a duty and so have no real freedom when carrying out a dangerous task requested by an employer. Refusal risks losing their job.

Even if an employee continues to work knowing the risks involved, it does not mean he consents in law to the risk.

Question 10

Why can’t consent generally be relied on where rescuers sue for negligence?

Answer 10

Because rescuers act under moral compulsion.

Rescuers will not have consented to the risk where:
(a) They were acting to rescue persons or property endangered by D’s negligence.
(b) They were acting under a compelling legal, social, or moral duty.
(c) Their conduct in all circumstances was reasonable and natural and probable consequence of D’s negligence.

Question 11

What is the defence of contributory negligence? How is it established?

Answer 11

Contributory negligence is a partial defence, allowing the damages to C to be reduced.

To succeed, must establish:
(a) Carelessness of C; and
(b) That carelessness has contributed to C’s damage.

(Note: C’s carelessness need not have contributed to the accident itself, only damage to C e.g., not wearing a seatbelt).

Question 12

How are damages reduced where there has been contributory negligence?

Answer 12

The court will take into account:
(a) Culpability, i.e., the relative blameworthiness of the parties;
(b) Causation, i.e., the extent to which C’s carelessness has caused or contributed to the loss suffered.

Question 13

What kind of conduct will amount to contributory negligence?

Answer 13

(a) Failure to wear a seatbelt.
(b) Failure to wear crash helmets.
(c) Accepting a lift from a drunken driver.

Question 14

The test for contributory negligence is whether the claimant has failed to take reasonable care for their own safety. Explain how this will apply with regard to children, rescuers, and employees.

Answer 14

(a) Children - whether an ordinary child of C’s age would have taken more care for his safety than C did.

(b) Rescuers - judged against the standard of the reasonable rescuer. Only if a rescuer has shown a ‘wholly unreasonable disregard for his or her own safety’ is there likely to be a finding of contributory negligence.

(c) Employees - all relevant circumstances must be taken into account e.g., the noise, repetition etc., of the role. A different degree of care is to be expected of e.g., a mine worker vs an ordinary person.

Question 15

What happens where D’s negligence puts C in imminent danger, compelling C to take some action to save themselves, resulting in contributory negligence?
.

Answer 15

A claimant who acts in the ‘agony of the moment’ due to the defendant’s negligence will not be contributory negligent if the court is satisfied that the claimant’s actions were a reasonable response to the danger

Question 16

What is the defence of illegality? How is it met?

Answer 16

The fact that C was involved in an illegal enterprise at the time they were injured may sometimes provide D with a defence.

Must be a very close connection between C’s illegal activity and the injury which they suffer, so that the damage arises directly out of the illegal activity in such a way that it would be contrary to public policy.

E.g., C, who had been drinking and encouraged a driver with no license to drive recklessly, was injured in a collision with a car. C sued for damages but the case failed because the reckless driving was an integral part of their joint criminal enterprise, and C’s actions were an inherent part of the illegality.

Question 17

What is the exclusion of liability defence?

Answer 17

A person may try to exclude or limit his liability to another in tort e.g., through a disclaimer notice.

This defence is primarily relevant to pure economic loss and occupiers’ liability. Special rules apply to the defence in these cases.

Question 18

A cause of action for defective products may lie in which areas relating to tort?

Answer 18

The tort of negligence; and

Under the Consumer Protection Act.

Question 19

What is the aim of damages?

Answer 19

To put C in the same position they would have been in if the tort had not been committed.

Re personal injuries, payment will not restore C to his previous position, so damages are compensatory.

C should also be no better off than he was previously - C cannot profit. C must mitigate damage by taking all reasonable steps to keep his losses to a minimum e.g., if C loses his job due to D’s negligence, he should seek alternate employment; same with medical care etc.

Question 20

What is the one action rule?

Answer 20

Once an award of damages has been made, a claimant cannot go back to court with a second claim simply because the injury worsens rather than improves. When a court assesses the claimant’s damages, it must award a single lump sum to cover both losses already suffered up to the time of trial and losses which the claimant is expected to suffer in the future.

Question 21

What are general vs specific damages?

Answer 21

General - losses which are not capable of being calculated precisely and are therefore left to the court to determine. Includes pain, suffering and loss of amenity and all losses incurred after the trial.

Specific - losses which are capable of being calculated precisely at the time of the trial and which are stated in the form of a calculation

Question 22

When are damages paid for personal injury?

Answer 22

Damages in personal injury claims are awarded in one lump sum at the date of trial, and this should cover past, present and future losses which the claimant might suffer.

Question 23

In relation to personal injury damages, damages fall under two categories. What are they?

Answer 23

Pecuniary losses - calculable money losses suffered by D pre- or post-trial e.g., medical expenses, loss of earnings.

Non-pecuniary losses - losses not capable of being calculated in money terms e.g., C’s personal injury.

Question 24

The key non-pecuniary loss is C’s personal injury, which is made up of what?

Answer 24

C’s pain and suffering - covers present, past, and future pain/suffering, including mental anguish in relation to surgery, shortened lifespan. Subjective test - C must be aware of the injuries to claim pain and suffering; if C is unconscious, C would not be able to.

C’s loss of amenity - covers cost to C for loss of enjoyment of life e.g., freedom of movement, loss of sight, loss of smell, loss of marriage prospects, inability to pursue hobbies etc.

Question 25

How are non-pecuniary losses quantified?

Answer 25

These are general damages because they are not capable of being calculated precisely.

Question 26

How are pecuniary losses quantified in relation to medical expenses?

Answer 26

C can claim for any reasonable medical expenses which result from the accident including e.g., wheelchairs, travel to hospital etc.

Pre-trial medical expenses are calculated by adding together expenses, post-trial expenses = general damages.

If C chooses to pay for private treatment, this will not be a failure to mitigate loss.

Question 27

How are pecuniary losses quantified in relation to loss of earnings expenses?

Answer 27

Pre-trial - calculate the net earnings pre-trial (salary less tax, national insurance, and pension contributions). If C regularly worked overtime, this should factor into the calculation.

Post-trial - general damages (since they are not capable of precise calculation). Court must make an assessment at date of trial. Should look closely at C to e.g., determine if they can never work again.

Question 28

What formula does the court apply to calculate future loss of earnings of C?

Answer 28

Multiplicand - determine C’s gross annual income, factoring in e.g., promotions (but not inflation) less tax, pensions, national insurance.

Multiplier - calculate for how long C will lose the money and multiply annual net income by this number e.g., 25 years x £56,000.

Discount rate - the multiplier is increased by 0.25%. so 25 years + 0.25 = 25.2.

Percentage deductions for lost years - 25% deduction for someone who is married with dependent children; 33% deduction for someone who has no dependents.

Further deductions from damages - C is required to pay back benefits to the State they receive for lost earnings, cost of care, and loss of mobility if recovering for these heads of damage from D, which C will.

Exemptions - insurance payments, ill-health pensions, and charitable payments (e.g., charitable payments to C by someone other than the tortfeasor), are not deducted from the damages which C receives.

Question 29

What are the ‘lost years’?

Answer 29

When a person’s life expectancy is reduced due to an injury, they may still be entitled to compensation for the “lost years” of potential earnings. The calculation involves deducting a portion of their earnings that would have been spent on themselves, and the specific percentage depends on the individual circumstances of the claimant. This compensation is necessary to ensure that the claimant can provide for their dependents or allocate the funds as they would have if they had lived longer.

E.g., a solicitor has a client aged 35. Prior to the accident the client was expecting to work to age 60. They had 25 years left to work. However, the medical evidence shows that now, as a result of their injury, they are likely to live and work for only another five years. The client has lost 20 years’ earning capacity. These are the ‘lost years’.

Question 30

What are vs are not lost years?

Answer 30

Future loss of earnings are not lost years.

Future loss of life expectancy are lost years.

Question 31

What other situations can damages be paid for losses of earnings?

Answer 31

Injured children can claim for loss of earnings (although determining its future earnings will prove challenging).

C can recover the cost of services e.g., help with housework, shopping etc. (amount claimed depends on a multitude of factors e.g., how long the services are needed for, what level of service, can family help, does spouse need to quit work or take time off to help).

C can recover for loss of earning capacity where they still remain employed e.g., where the disability hinders job prospects if they perchance lost their current job.

Other pecuniary expenses - C can recover for any other pecuniary expenses they have incurred due to the incident e.g., their property might be damaged in the accident.

Question 32

If a family member will retire to care for C because C needs care, will they be covered by a head of loss under which C can expect to receive damages for personal injury?

Answer 32

Yes, as the loss of the person is to fulfil C’s need for care.

Cannot exceed the commercial rate for providing services.

Question 33

There are two limited exceptions to the rule that damages are paid singly as a lump sum at the time of trial. What are they?

Answer 33

Provisional damages.

Periodic payments.

Question 34

Which causes of action continue after C and/or D’s death?

Answer 34

All causes of action continue after C and/or D’s death for the benefit of the estate, except defamation and bereavement damages.

Question 35

n relation to damages claimed by C’s estate, are damages deducted for money received/paid on death?

Answer 35

No, these sums e.g., insurance do not reduce the damages claimed by the estate.

Also, no account is taken for money paid out of the estate because of the death except from reasonable funeral expenses which can be claimed if paid from the estate.

Question 36

What are the two statutes related to claiming damages after death?

Answer 36

Law Reform (Miscellaneous Provisions) Act:

Estate can sue on behalf of C after C has died for non-pecuniary loss of amenity and pain and suffering, as well as pecuniary medical and other expenses, loss of income up to death etc.

Fatal Accidents Act:

Claims made by persons affected by C’s death in relation to loss of dependency, bereavement, and funeral expenses.

Question 37

What does the Law Reform Act cover?

Answer 37

Where C dies before they have received an award of compensation, and the estate wishes to make a claim.

Look for beneficiaries under C’s estate.

Question 38

What can a deceased C’s claim cover?

Answer 38

Law Reform (Misc Provisions) Act:

Non-pecuniary losses

• Pain and suffering and loss of amenity (these end at the date of death).

Pecuniary losses

• Damage to property, eg clothes or a car damaged in an accident.
• Medical and other expenses. Naturally, these will end at the date of death.
• Loss of income up to the date of death.

Question 39

Does it matter when C dies?

Answer 39

If C dies after launching proceedings, PRs can continue claim on behalf of estate.

If C dies before launching proceedings, PRs can commence a claim on C’s estate’s behalf.

If C dies after receiving damages for D’s negligence, PRs cannot commence a claim.

Question 40

What does the Fatal Accidents Act cover?

Answer 40

Allows dependents of a deceased to claim for damages.

Question 41

The Fatal Accidents Act created three additional possible claims for when C dies. What are they?

Answer 41

• A claim on behalf of dependents for loss of dependency.
• A claim for damages for bereavement - limited to certain persons only.
• A claim for funeral expenses - if paid by the dependents.

Question 42

How does one claim for loss of dependency?

Answer 42

• they must be a current/former married spouse/civil partner, cohabitee who lived with C for at least two years, parent, children, or sibling; and
• they must have been actually financially dependent on the deceased (they must show that they had a reasonable expectation of pecuniary benefit from the deceased). ‘Pecuniary benefit’ does not simply mean provision of money. Dependants can claim for the cost of replacing services which were provided by the deceased. This would cover, for example, child care, DIY, gardening and housework.

Question 43

How is loss of dependency calculated?

Answer 43

Multiplicand - determine C’s gross annual income, factoring in e.g., promotions, job perks, cheaper holidays, as well as household services e.g., gardening (but not inflation) less tax, pensions, national insurance, and money t that C would’ve spent on themself e.g., rent, bills (conventional deduction 25% for married person with children, 33% for married person without dependent children).

Multiplier - calculate for how long the dependency period might have continued

Question 44

Who can claim for damages for bereavement?

Answer 44

the wife, husband or civil partner of the deceased;
* the parents (or mother if illegitimate) of a minor who was never married or a civil partner;
* the cohabiting partner of the deceased, who: (a) was living with the deceased in the same household immediately before the date of the death; and
(b) had been living with the deceased in the same household for at least two years before that date; and
(c) was living during the whole of that period as the wife or husband or civil partner of the deceased.

Question 45

Who cannot claim for damages for bereavement?

Answer 45

Children of the deceased

Question 46

What can be claimed under the Damages Act 1966?

Answer 46

Dependants of someone who has died may be able to claim for losses not compensated by an initial award of damages

Claims can be brought for the loss of intangible benefits of a spouse or parents

Award depends on several factors, such as length of marriage and dependancy