remoteness, defences and remedies Flashcards
what is remoteness?
examines extent of liability
claimant’s damage must not be too remote from D’s breach
what question should be asked for test of remoteness?
was the damage suffered reasonably foreseeable? (objective test)
(the type of damage suffered was reasonably foreseeable)
does a defendant need to foresee the exact way that damage occurs?
no there is no need
does the defendant need to foresee the extent of the damage?
no they do not. once D is liable for the full extent of those damages, even if the extent is greater than that which would normally be expected.
what is the thin skull rule?
must take your victim as you find them.
extent of injury has been aggravated by the C’s own weakness.
does the thin skull rule apply to the lack of monetary funds from the C?
yes as the D must take the C as they find them
what is the test and who must prove a defence to a tort?
defendant needs to prove and it is on the balance of probabilities
when is the defence of consent applicable?
where C has consented to the risks involved and cannot, therefore, complain of the consequential damage
in order to prove the defence of consent what are the 4 elements which must be proved?
- C had the capacity to give valid consent to the risks
- C had full knowledge of the nature and extent of the risks (general knowledge is not enough)
- C agreed to the risk of injury
- agreed voluntarily
If a person does sport - do they consent to injury?
for sport a C agrees to the risk of injury that are inherint in that sport but not injury that is not inherit to that sport (eg, injury from serious foul play)
if a drunk driver gives a lift to a passenger and the passenger is injured - can the drunk driver say the passenger consented?
no, the drunk driver cannot rely on consent to defeat the claim of a passenger who voluntarily accepts a lift and is injured as a result
if there is a contract term and a person is injured - have they consented?
voluntary acceptance of risk cannot be assumed merely because the consumer agreed or knew about the term
when considering whether an employee’s consent is voluntary - can a claim be made?
it will be hard but not impossible for an employer to rely on the defence of consent when faced with an employee’s claim
what are the 2 things that must be established for a defence in contributory negligence?
1) that the C failed to take reasonable steps for their own safety; and
2) that this failure contributed to the C’s damage
if contributory negligence is proven - what is the effect of the defence?
reduces the liability of a D in relation to the harm their breach of duty has caused the C to reflect the C’s role in the harm they suffer.
damages are reduced by a % the court thinks is just and equitable having regard to the C’s share in the responsibility of damage.
are rescuers protected from contributory negligence?
yes generally - do what a reasonable rescuer would do
what must be considered for a defence in illegality?
- Did the C commit an illegal (or grossly immoral) act?
if yes, then apply Patel v Mirza test
a) what was the underlying purpose of the prohibition transgressed and will that purpose be enhanced by denying the claim (what are the policies supporting the defence of illegality)
b) other relevant public policies on which denial of the claim may have an impact (what are the policies for denying the defence of illegality);
c) whether denying the claim would be proportionate to the illegality
what is the test in Patel v Mirza for illegality defence?
a) what was the underlying purpose of the prohibition transgressed and will that purpose be enhanced by denying the claim (what are the policies supporting the defence of illegality)
b) other relevant public policies on which denial of the claim may have an impact (what are the policies for denying the defence of illegality);
c) whether denying the claim would be proportionate to the illegality
what are the 2 types of remedies?
damages and injunctions
what is the aim of damages?
to put the C in the position they would have been in but for the D’s tortious act
what are compensatory damages?
awarded to compensate the C for the harm they have suffered.
what are special damages?
cover specifically provable and quantifiable financial losses at the time of trial eg, loss of earning incurred before trial
what are general damages?
cover future financial losses, which cannot be specifically proven, and non-quantifiable losses such as compensation for physical injury
what is the multiplier/ multiplicand approach for calculating future losses?
take the annual expense and multiply it by the number of years the loss will continue to be suffered
what deductions can be taken from damages?
any state benefit
contractual sick pay
redundancy payment (if resulted from the injury)
if a C suffers damage and receives insurance pay-outs, ill-health pensions and any sum received by way of gifts or charity = is this deducted from their damages awarded?
no this is not deducted
if a person dies from the tort - what damages can be claimed?
their estate can claim damages made for any losses suffered by the deceased as result of an accident up to the date of death. no claim for any losses after death
can dependents of the deceased claim anything?
can claim for any losses suffered as a result of the death eg, family relied on the wages the deceased made
who are dependents for the purposes of the fatal accidents act 1976? (claim for person after death)
dependents are close blood relations and those related by marriage or who have cohabited for over 2 years
