Remoteness, Defences and Remedies

Question 1

What is the test for remoteness?

Answer 1

A claimant can only recover for loss that was reasonably foreseeable at the time the defendant breached their duty of care

Question 2

Is the remoteness test objective or subjective?

Answer 2

Objective

Question 3

Must the extent of damage caused be foreseeable?

Answer 3

No need to foresee the extent of damage as long as the type of harm was foreseeable

Question 4

Does the ‘no need to foresee the extent of damage’ rule apply even if the damage or extent of injury has been aggravated by the claimant’s own weakness?

Answer 4

Yes - thin skull rule - must take your victim as you find them

Question 5

What standard must defendant’s prove their defences?

Answer 5

On the balance of probabilities

Question 6

What must the defendant show for the defence of consent (volenti non fit injuria) to succeed?

Answer 6

D must show the claimant:

1. Had capacity to give valid consent to the risks
2. Had full knowledge of the nature and extent of the risks
3. Agreed to the risk of injury
4. Agreed voluntarily

Question 7

Can consent be negated by statute?

Answer 7

Yes

Question 8

What examples are there of consent being negated by statute?

Answer 8

• s 149 of the Road Traffic Act 1988 prevents the use of consent by motorists facing claims from their passengers;
• s 2 of the Unfair contract terms Act 1977 prevents defendants excluding or restricting liability for death or personal injuries from negligence; and
• similar terms included in s 65(1) of CRA 2015

Question 9

What must D establish for defence of contributory negligence to apply?

Answer 9

1. That the claimant failed to take reasonable steps for their own safety (special consideration for emergencies/difficult dilemmas, age of claimant, rescuers, and nature of duty); and
2. That this failure contributed to the claimant’s damage

Question 10

How will a successful defence of contributory negligence affect the claimant’s claim?

Answer 10

The court at their discretion will make a deduction to the claimant’s damages as they see fit

Question 11

Is the defence of illegality (Ex turpi causa non oritur actio) a full or partial defence?

Answer 11

Full

Question 12

Why should the claimant not be able to bring a claim if they were involved in an illegal activity at the time they suffered their loss?

Answer 12

As to do so would harm the integrity of the legal system

Question 13

What is the test for illegality?

Answer 13

1. Has the claimant committed an illegal or possibly grossly immoral act at the time they suffered their loss caused by the defendant?
2. Would allowing recovery for something which was illegal would produce inconsistency and disharmony in the law, so cause damage to the integrity of the legal system? Consider:

a. The underlying purpose of the prohibition which has been transgressed and whether that purpose will be enhanced by denial of the claim;

b. Other relevant public policy which may be rendered ineffective or less effective by denial of the claim; and

c. Whether denying the claim would be a proportionate response to the illegality. Consider seriousness of the conduct, it centrality to the tort, whether it was intentional and whether there was a marked disparity in the parties’ respective culpability.

Question 14

Is the defence of necessity a full or partial defence?

Answer 14

Full defence

Question 15

When is the defence of necessity available?

Answer 15

Where the defendant acted to save life, limb or property

Question 16

What must the defendant prove for a defence of necessity?

Answer 16

1. They were acting in an emergency to prevent harm to the claimant, a third party and/or themselves;

a. Emergency must generally involve preventing death or serious injury. Subjectively defendant must believe at the time of the negligence that it was necessary to act to prevent death or serious injury; and

2. They were not at fault in causing the emergency

a. The defendant must show they acted reasonably and the necessity to act arose without the defendant’s negligence

Question 17

What are the two main remedies for negligence claims?

Answer 17

Damages and injunctions

Question 18

What is the aim of damages in tort cases?

Answer 18

To put the claimant in the position they would have been in but for the defendant’s tortious act

Question 19

What are special damages?

Answer 19

Cover specifically provable and quantifiable financial losses at the time of trial. For example, loss of earnings incurred before trial

Question 20

What are general damages?

Answer 20

Cover future financial losses, which cannot be specifically proven, and non-quantifiable losses such as compensation for physical injury

Question 21

What deductions can be made from any calculation of damages?

Answer 21

• any state benefits received by the claimant as a result of their injury, such as unemployment benefit if they have been prevented from working, compensation for lost earnings, cost of care, and loss of mobility. D pays the amount deducted back to the state
• any contractual sick pay they have received as a result of their injury
• any redundancy payment, if redundancy resulted from the injury

Question 22

What will not be deducted from any damages?

Answer 22

• insurances pay-outs
• ill-health pensions and
• any sums received by way of gifts or charity

Question 23

Under the Law Reform (Miscellaneous Provisions) Act 1934, who may bring a claim for death and in relation to what?

Answer 23

The estate of the deceased may bring a claim for any losses (both pecuniary and non-pecuniary) suffered by the deceased as a result of an accident up to the date of death

No claim can be made in relation to losses that might have arisen after the date of death

Question 24

Can someone who is still alive but going to dies as a result of tort bring a claim for their loss of life expectancy?

Answer 24

No

Question 25

Who may bring a claim in respect of the death of the deceased caused by tort under the Fatal Accidents Act 1976?

Answer 25

The dependants of the deceased who have suffered any losses as a result of the death

Question 26

What dependants can bring a claim under the Fatal Accidents Act 1976?

Answer 26

Close blood relations and those related by marriage or who have cohabited for over two years

Question 27

What specific provision is there for spouse, civil partner or cohabiting partner (at time of death and for two years before) of the deceased, or parents of an unmarried minor?

Answer 27

Can claim bereavement damages - fixed sum

Question 28

Under the Fatal Accidents Act 1976 can funeral expenses be recovered?

Answer 28

Yes, if paid by the dependants