Remoteness, Defences and Remedies

Question 1

Which one of the following is a correct summary of the thin skull rule from Smith v Leech Brain?

(a) 
The defendant need only pay damages up to the amount a reasonable person would have suffered but not any additional damage which arises from the victim’s thin skull.

(b) 
The defendant must take their victim as they find them, regardless of any pre-existing illness.

(c) 
The defendant will pay less damages if the victim has a thin skull.

(d) 
The defendant must take their victim as they find them, regardless of whether the injury suffered during the act is more than expected.

(e) 
The defendant must pay additional damages where the victim has a skull injury.

Answer 1

(b) 
The defendant must take their victim as they find them, regardless of any pre-existing illness.


Question 2

Larry, a model, suffers facial injuries as a result of falling from a theme park ride. The theme park had negligently failed to install appropriate safety measures. Larry is taken to hospital where a surgeon operates on his face. Larry has an allergic reaction to the anaesthetic and suffers additional nerve damage. Larry is unable to accept any modelling work for six months. Which of the following is most accurate in relation to remoteness?

(a) 
Larry’s personal injury was a reasonably foreseeable consequence of the breach but the consequential economic loss was not.

(b) 
Neither Larry’s personal injury nor the consequential economic loss were reasonably foreseeable consequences of the breach.

(c) 
Larry’s consequential economic loss was a reasonably foreseeable consequence of the breach but the personal injury was not.

(d) 
Larry’s personal injury and consequential economic loss were reasonably foreseeable consequences of the breach but he has acted unreasonably so the losses will be too remote.

(e) 
Both Larry’s personal injury and the consequential economic loss were reasonably foreseeable consequences of the breach.

Answer 2

(e) 
Both Larry’s personal injury and the consequential economic loss were reasonably foreseeable consequences of the breach.

The facial injuries and nerve damage are a reasonably foreseeable consequence of the breach (personal injury is a single indivisible type of harm – Page v Smith) and it is reasonably foreseeable that, as a result of personal injury, a victim may not be able to work for a period of time.

Question 3

Which of the following is not one of the four elements which the defendant must show to establish the defence of consent?

(a) 
The claimant had full knowledge of the nature and extent of the risks.

(b) The claimant could have benefitted from the risks, or avoided a loss.

(c) 
The claimant had capacity to give valid consent to the risks.

(d) 
The claimant agreed to the risk of injury.

(e) 
The claimant’s agreement to the risk was voluntary.

Answer 3

(b) The claimant could have benefitted from the risks, or avoided a loss.


Question 4

To establish the defence of consent, a defendant must show that the claimant consented to the risk concerned ‘voluntarily’. When considering whether an employee’s consent is voluntary…

(a) 
…it will be hard but not impossible for an employer to rely on the defence of consent when faced with an employee’s claim.
(b) 
…it is not possible to establish that an employee consented to risks when it comes to a claim against the employer.

(c) 
…an employee will have consented to risks that it was fully informed of when choosing to start / continue working

Answer 4

(a) 
…it will be hard but not impossible for an employer to rely on the defence of consent when faced with an employee’s claim.

It would be wrong to say that ‘…an employee will have consented to risks that it was fully informed of when choosing to start / continue working’ because Smith v Charles Baker & Sons makes clear that the requirement of voluntary consent is in addition to knowledge of the risk. Employees who know of the risks of their jobs are not necessarily voluntarily running those risks, since they may have little real option if they wish to keep their job.


Question 5

To establish the defence of contributory negligence, the defendant must show:

(a) 
(a) The claimant breached a duty owed to the defendant; and (b) this failure contributed to the accident happening.

(b) 
(a) The claimant failed to take reasonable steps for their own safety; and (b) this failure contributed to the claimant’s damage.

(c) 
(a) The claimant breached a duty owed to the defendant; and (b) this failure contributed to the claimant’s damage.

(d) 
(a) The claimant failed to take reasonable steps for their own safety; and (b) this failure contributed to the accident happening.

Answer 5

(b) 
(a) The claimant failed to take reasonable steps for their own safety; and (b) this failure contributed to the claimant’s damage.


Question 6

Pete, a passenger on Saraf’s motorbike, refuses to wear a helmet and is seriously injured when Saraf’s negligent driving leads to a crash. Which one of the following is correct?

(a) 
Pete has been contributorily negligent and s1(1) Law Repeal (Contributory Negligence) Act 1946 will apply

(b) Pete has been contributorily negligent and s1(1) Law Reform (Contributory Negligence) Act 1946 will apply

(c) 
Pete has been contributorily negligent and s1(1) Law Repeal (Contributory Negligence) Act 1945 will apply

(d) 
Pete has been contributorily negligent and s1(1) Law Reform (Contributory Negligence) Act 1945 will apply

Answer 6

(d) 
Pete has been contributorily negligent and s1(1) Law Reform (Contributory Negligence) Act 1945 will apply

Question 7

Where the defence of contributory negligence has been established…

(a) 
…the claim fails.

(b) 
…damages are reduced by a percentage which is just and equitable considering both the claimant’s and defendant’s culpability.
(c) 
…damages are reduced by a percentage which is just and equitable considering the number of parties who contributed to the injury.

(d) 
…damages are reduced by 50%.

(e) 
…damages are reduced by 25%.

Answer 7

(b) 
…damages are reduced by a percentage which is just and equitable considering both the claimant’s and defendant’s culpability.

Whilst percentages of 50% / 25% will be appropriate in certain cases, there is no set rule. The number of parties who contributed to the injury is not the best way to approach the relevant question.


Question 8

The defence of illegality is also known as:

(a) 
Volenti non fit injuria

(b) 
Ex turpi causa non oritur actio

Answer 8

(b) 
Ex turpi causa non oritur actio

This translates approximately to ‘no action may be based on an illegal cause’, as it is another way of referring to the defence of illegality.
Volenti non fit injuria is another way of referring to the defence of consent.

Question 9

Which of the following best expresses the first part of the two-part approach that we recommend in considering the defence of illegality?

(a) 
Has the claimant committed a tort?

(b) 
Has the claimant committed an illegal (or grossly immoral) act? 

(c) 
Has the claimant committed an illegal act?

(d) 
Has the defendant committed an illegal (or grossly immoral) act?

(e) 
Has the defendant committed a tort?


Answer 9

(b) 
Has the claimant committed an illegal (or grossly immoral) act?

Whilst in almost all cases the defence involves illegality, it appears that gross immorality may also allow the defence to be raised.
It is neither necessary, nor sufficient, that the claimant has committed a tort.
It is true that unless the defendant had committed a tort, you would not be looking at defences at all: but the defendant committing a tort is not part of the defence itself.
The illegality must be on the part of the claimant.


Question 10

If the claimant has committed an illegal (or grossly immoral) act, the next part of the test is to consider the three considerations identified in Patel v Mirza in order to determine whether allowing the claim would harm the integrity of the legal system. Which of the following is not one of the three considerations as set out in that case?


(a) Any other relevant public policy on which the denial of the claim may have an impact.

(b) 
Whether denial of the claim would be a proportionate response to the illegality.

(c) 
Whether the claimant’s claim is founded upon their own criminal or immoral act.
(d) The underlying purpose of the prohibition which has been transgressed and whether that purpose will be enhanced by denial of the claim.


Answer 10

(c) 
Whether the claimant’s claim is founded upon their own criminal or immoral act.

Prior to Patel v Mirza it was generally thought that the defence only arises if the facts which give rise to the claim are inextricably linked with the criminal activity. The court made clear that that was no longer the test, but this is still likely to be a relevant consideration when considering proportionality. The other three answers are the three considerations identified in Patel v Mirza.


Question 11

Which of the following is NOT one of the elements which the defendant must show to establish the defence of necessity?

(a) 
The defendant was not at fault in causing the emergency.

(b) 
The claimant was acting in an emergency.

(c) 
The defendant was acting in an emergency.

Answer 11

(b) 
The claimant was acting in an emergency.


Question 12

Which of the following is correct in relation to step one of the legal test for necessity, that the defendant was acting in an emergency to prevent death or serious injury?

(a) 
The test is subjective; that defendant must believe by the time of the trial that it was necessary to act to prevent death or serious injury.

(b) 
The test is objective; a reasonable person would have believed by the time of the trial that it was necessary to act to prevent death or serious injury.

(c) 
The test is objective; a reasonable person would have believed at the time of the negligence that it was necessary to act to prevent death or serious injury.

(d) 
The test is subjective; that defendant must believe at the time of the negligence that it was necessary to act to prevent death or serious injury.

Answer 12

(d) 
The test is subjective; that defendant must believe at the time of the negligence that it was necessary to act to prevent death or serious injury.

In order to succeed with the defence of necessity, the defendant must prove that they:
Were acting in an emergency to prevent harm to the claimant, a third party and/or the defendant themselves; and
Were not at fault in causing the emergency.
Whilst the captain can satisfy step 1, they cannot satisfy step 2 – the captain’s acts caused the emergency.

Question 13

The aim of damages in the law of tort is to…


(a) … award fair compensation for the harm caused to the claimant.

(b) 
… put the claimant in the position they would have been in but for the defendant’s tortious act.
(c) 
… put the claimant in the position they were in prior to their engagement / interaction with the defendant.

(d) 
…. restore to the claimant any benefit obtained from the defendant.

Answer 13

(b) 
… put the claimant in the position they would have been in but for the defendant’s tortious act.

Whilst it is fair to say that damages aim to award fair compensation, this is too vague to be a good summary of the aim of damages in the law of tort. The aim of damages may often mean that the damages put the claimant in the position they were in prior to their engagement / interaction with the defendant, but this is not always the case, and this is not the best way of explaining the aim of the damages in the law of tort. It would be wrong to say that the aim is to restore to the claimant any benefit obtained from the defendant. In many cases that would lead to no damages at all, as often the defendant does not benefit at all from (for example) its negligence.


Question 14

Which one of the below correctly describes the position in relation to damages following death?

(a) 
It is not possible to claim for damages following death because the deceased cannot bring the claim, and no-one can bring it on their behalf.

(b) 
Only parents of the deceased may bring a claim (under the Fatal Accidents Act 1976).

(c) 
The estate of the deceased may bring a claim for losses suffered by the deceased under the Law Reform (Miscellaneous Provisions) Act 1934.
(d) 
Only spouses of the deceased may bring a claim (under the Fatal Accidents Act 1976).

(e) 
The estate of the deceased may bring a claim for losses suffered by the deceased under the Fatal Accidents Act 1976

Answer 14

(c) 
The estate of the deceased may bring a claim for losses suffered by the deceased under the Law Reform (Miscellaneous Provisions) Act 1934.

The damages in relation to the losses suffered by the deceased will be calculated on the same basis as a normal personal injury award. Remember that certain dependants of the deceased may also bring a claim under the Fatal Accidents Act 1976 – this includes both parents and spouses (and potentially some other categories of dependants).


Question 15

Which of the following is not an example of special damages?

(a) 
The value of a mobile phone damaged in an accident.

(b) 
The cost of medical care already incurred before trial.

(c) 
The cost of repairing a car before trial.

(d) 
Loss of future earnings.

Answer 15

(d) 
Loss of future earnings.

This would be general damages, because it cannot be specifically proven. The others are all good examples of special damages.


Question 16

What are the main principles of remoteness?

Answer 16

• Damage must not be too remote from D’s breach
• C can only recover if type of damage suffered was reasonably foreseeable at time - D breached DOC - objective test
• C can only recover if D ought to have foreseen type of damage suffered
• Courts have varied approach to type of damage - some cases take broad approach, others take narrow view
• Remember
  1. There is no need to foresee the exact way in which damage occurs
  2. There is no need to foresee the full extent of damage
• Thin skull rule still applies

Question 17

When is consent applicable and what is the legal test for it?

Answer 17

• Only become relevant when tort established
• It is for D to prove on balance of probabilities
• Consent ie volenti non fit injuria
• Applicable in cases where C has consented to risk(s) involved and cannot, therefore complain of consequential damage
• If successful, is complete defence - C gets no damages
• Four elements: D must show that C
  1. Had capacity to give valid consent to risks
  2. Had full knowledge of nature and extent of risks
  3. Agreed to risk of injury
  4. Agreed voluntarily

Question 18

Can consent be negated as a defence and if so how?

Answer 18

Can be negated by statute:

s. 149 RTA 1988
Prevents of consent by motorists facing claims from their passengers. For example, a drunk driver cannot rely on consent to defeat the claim of a passenger who voluntarily accepts a lift and is injured as a result.

s. 2 UCTA 1977
“Applies defendants acting in the course of business (but does not apply where the claimant is a consumer).
Section 2(1) prohibits defendants excluding or restricting liability for death or personal injuries resulting from negligence.
Under s 2(2) other types of loss may be excluded, subject to a test of reasonableness.
Section 2(3) makes it clear that a person’s agreement to or awareness of a contract term or notice purporting to exclude or restrict liability for negligence will not of itself be taken as indicating voluntary acceptance of any risk.”

s. 65(1) CRA 2015 Prohibits traders, when dealing with consumers, from using contract terms/notices limiting or excluding liability for death or personal injury through negligence. Other damage is subject to s 62 - an exclusion clause is only binding if it is fair. Section 65(2) states that voluntary acceptance of risk cannot be assumed merely because the consumer agreed or knew about the term.

Question 19

When does contributory negligence apply and what is the legal test for it?

Answer 19

• Argued where C is at fault too and that fault has contributed to C’s loss
• D must establish (Jones v Livox):
  1. That C failed to take reasonable steps for their own safety and
  2. That this failure contributed to C’s damage

About point 1
- Allowances are made for Cs who have been placed in emergency or difficult dilemma ie Cs who are injured whilst trying to save themselves
- Where C is child, court will take into account their age in determining standard of care expected
- Rescuers are generally protected from contributory negligence
- Nature of duty must also be considered

About point 2
- C’s fault must contribute to damage suffered, although it need not contribute to accident
- So failure to wear seat belt will be contributory negligent if wearing seat belt would have reduced or avoided injury, even though failing to wear it does not cause accident - same applies to helmet

Question 20

What is the effect of contributory negligence?

Answer 20

• Reduces liability of D in relation to harm their breach has caused C to reflect C’s role in harm they suffer
• So C’s damages are reduced by percentage court thinks just and equitable having regard to C’s share in responsibility for damage - so it is a partial defence

Question 21

Is contributory negligence a full or partial defence?

Answer 21

Partial

Question 22

In contributory negligence, does the failure have to contribute to the damage or the accident itself?

Answer 22

C’s fault must contribute to damage suffered, although it need not contribute to accident

So failure to wear seat belt will be contributory negligent if wearing seat belt would have reduced or avoided injury, even though failing to wear it does not cause accident - same applies to helmet

Question 23

How will the courts consider deduction in contributory negligence?

Answer 23

Court has discretion on how great a reduction to make to C’s damages - C’s degree of culpability will generally be expressed in percentage terms, taking into account respective culpability of D and C

Court looks at what is just and equitable in all circumstances and will likely order greater reduction if C contributed to accident as well as their injury

Froom v Butcher: Lord Denning suggested a 25% reduction if the wearing of the seat belt would have avoided injury, 15% if it would have reduced it and 0% if it would have made no difference. However, these figures are not cast in stone and vary depending on all the circumstances.

Question 24

What happens where there are several Ds in contributory negligence?

Answer 24

If there are several Ds, court first determined whether c’s claim against Ds as whole should be reduced as result of contributory negligence - once that’s determined, and it is known what Ds as whole should pay, court determines how liability is shared between Ds

Question 25

When does illegality apply and what is the legal test for it?

Answer 25

• Ex turpi causa non oritur actio - no action may be based on an illegal cause
• If established, complete defence

Process to be followed:
1. Has C committed illegal or possibly grossly immoral act at time they suffered their loss caused by D?
2. Patel v Mirza trio:
(a) Underlying purpose of prohibition which has been transgressed and whether that purpose will be enhanced by denial of claim
(b) Other relevant public policy which may be rendered ineffective or less effective by denial of claim and
(c) Whether denying claim would be proportionate response to illegality

In relation to (c), court will consider:
1. Seriousness of conduct
2. Its centrality to tort - whether there is causal link between illegality and tort
3. Whether it was intentional
4. Whether there was marked disparity in parties’ respective culpability

Question 26

When does necessity apply and what is the legal test for it?

Answer 26

• Complete defence
• For D to prove on balance of probabilities
• Defence applicable where D acted to save life, limb or property
• Rare for D to rely on defence and unclear whether it applies to negligence
• If it is argued by D, they must prove that they:
  1. Were acting in emergency to prevent harm to C, a TP and/or D themselves; and
  2. Were not at fault in causing emergency
  (a) They acted reasonably and
  Necessity to act arose without (b) D’s negligence

Question 27

What are the two principal remedies that court can award in successful action?

Answer 27

1. Injunction = order forcing D to act or preventing D from acting in certain way - rare and only suitable in certain kinds of cases, eg in land-based torts
2. Damages = award of money - most common

Question 28

What is the aim of damages and what are the different types of damages that may be awarded?

Answer 28

• Compensatory damage for wrong perpetrated on C
• Aim is to put C in position they would have been in but for D’s tortious act, as far as this is possible with award of money - backwards looking ie seeking to restore C to position before tort happened

Two categories:
1. Special damages = cover specifically provable and quantifiable financial losses at time of trail eg loss of earnings incurred before trial
2. General damages = cover future financial losses, which cannot be specifically proven and non-quantifiable losses eg compensation for physical injury

Question 29

What is PSLA?

Answer 29

Pain, suffering and loss of amenity award (PSLA)

Two parts to this:
1. Pain and suffering
2. Loss of amenity = attempts to compensate for effect of injury on C’s lifestyle eg if they can no longer swim or walk - size of this element will depend on how active C was prior to injury and what thy have been prevented from doing as result of injury
PSLA will always be expressed as overall single lump sum

Question 30

How does the court calculate future losses for damages?

Answer 30

• For one-off future expenses, lump sum will be given eg cost of adapting home
• Situation more complex where continuing loss eg future loss of earnings/recurring expenses of medical treatment or care
• Basic approach: take annual expense and multiply it by number of years loss will continue to be suffered ie multiplier/multiplicand approach
• But unrealistic to simply use as multiplier C’s life expectancy or predicted number of years they will continue working - court is also wary of over-compensation
• Court works on assumption that lump sum award it will make will be invested and figure it awards aims to provide C with sufficient income from investment to replace what they’ve lost

Question 31

What is deducted and what is not deducted from damages?

Answer 31

Once damages calculated, may be appropriate to make one or more deductions from sum assessed:
1. Any state benefits received by C as result of injury eg unemployment benefit if they have been prevented from working - state benefits can be deducted from compensation for lost earning, cost of care and loss of mobility - D pays amount deducted back to state
2. Any contractual sick pay they have received as result of injury
3. Any redundancy payment if redundancy resulted from injury

What is not deducted?
Insurance pay-outs, ill-health pensions and any sums received by way of gifts or charity will not be deducted

Question 32

What acts should we consider for damages when D dies and when do they apply

Answer 32

Damages when C dies - LRMPA 1934
Under Act the ‘estate’ (ie legal representatives of the deceased person) may bring claim for any losses (both pecuniary and non-pecuniary) suffered by deceased as result of an accident up to date of death.

Damages when C dies - FAA 1976
- Act allows for any dependants of deceased (ie people who depended on the deceased) to claim for any losses suffered as result of the death. For example, a claim by a family when the deceased was earning wages which were shared with the family, and the family has now lost that support.
- The Act defines dependants as close blood relations and those related by marriage or who have cohabited for over two years (s 1(3)).