Remoteness, defences and remedies Flashcards
what is the test of reasonable foreseeability for remoteness of damage?
claimant can only recover if the type of damage suffered was reasonably foreseeable at the time the D breached their duty of care.
D ought to have foreseen the ‘type’ of damage suffered. not the exact way in which damage occurred or the full extent of the damage.
does the thin skull rule apply>
yes D must take the V as they find them. This includes economic loss i.e take their financial situation as they find them.
when is the defence of consent available ? (volenti non fit injuria)
where the claiamant has consented to the risks.
- must have capacity to consent.
- full knowledge of the nature and extent of the risks.
- agreed to the risk of injury.
- agreed voluntarily.
what is the test for contributory negligence?
- the claimant failed to take reasonable steps for their own safety (required to take same degree of care that a reasonable and prudent person would take) and
- this failure contributed to the claimant’s damage suffered/
what are the extra considerations for a failure to take reasonable steps for safety and the reasonable man test?
- emergencies.
- when the claimant is a child, court will take account of their age.
- Rescuers are generally protected from contributory negligence.
- nature of the duty.
what deduction is made for contributory negligence?
court’s discretion. just and equitable.
is illegality a complete defence.
yes
what is the test for illegality?
- has the claimat committed an illegal or groslly immoral act at the time they suffered their loss caused by the D?
- whether allowing recovery for something which was illegal would produce disharmony and inconsistency in the law, so cause daamge to the integrity of the legal system? 3 conditions
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.
what are thw two principal remedies in tort?
damages and injunctions.
what is the aim of damages?
put the claimant in the position they would have been it but for the D’s tortious acts.
what are general and special damages?
special- cover specifically provable and quantifiable financial losses at the time of trial.
General- cover future financial losses, which cannot be specifically proven, and non-quantifiable losses such as compensation for physical injury. includes ongoing medical costs.
what is the PSLA?
PAIN AND SUFFERING AND LOSS OF AMENITY AWARD. OVERALL LUMP SUM.
what is the effect of the illegality defence?
prevents a claim obtaining damages for losses caused by their own illegal activities.
When injuries are a direct consequence of participating in illegal activities, claims for damages are typically barred to avoid inconsistency in the law.
what can dependents claim for the under the Fatal Accidents Act 1976?
dependents can claim for losses suffered due to the death, including loss of financial support and funeral expenses.
only a spouse, civil parnter or cohabiting partner can claim for bereavement damages.
deceased’s esrate can bring a claim for losses incurred by the deceased up to the date of death.
