remoteness, defences and remedies

Question 1

what is remoteness?

Answer 1

examines extent of liability

claimant’s damage must not be too remote from D’s breach

Question 2

what question should be asked for test of remoteness?

Answer 2

was the damage suffered reasonably foreseeable? (objective test)

(the type of damage suffered was reasonably foreseeable)

Question 3

does a defendant need to foresee the exact way that damage occurs?

Answer 3

no there is no need

Question 4

does the defendant need to foresee the extent of the damage?

Answer 4

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.

Question 5

what is the thin skull rule?

Answer 5

must take your victim as you find them.
extent of injury has been aggravated by the C’s own weakness.

Question 5

does the thin skull rule apply to the lack of monetary funds from the C?

Answer 5

yes as the D must take the C as they find them

Question 6

what is the test and who must prove a defence to a tort?

Answer 6

defendant needs to prove and it is on the balance of probabilities

Question 7

when is the defence of consent applicable?

Answer 7

where C has consented to the risks involved and cannot, therefore, complain of the consequential damage

Question 8

in order to prove the defence of consent what are the 4 elements which must be proved?

Answer 8

1. C had the capacity to give valid consent to the risks
2. C had full knowledge of the nature and extent of the risks (general knowledge is not enough)
3. C agreed to the risk of injury
4. agreed voluntarily

Question 9

If a person does sport - do they consent to injury?

Answer 9

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)

Question 10

if a drunk driver gives a lift to a passenger and the passenger is injured - can the drunk driver say the passenger consented?

Answer 10

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

Question 11

if there is a contract term and a person is injured - have they consented?

Answer 11

voluntary acceptance of risk cannot be assumed merely because the consumer agreed or knew about the term

Question 12

when considering whether an employee’s consent is voluntary - can a claim be made?

Answer 12

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

Question 13

what are the 2 things that must be established for a defence in contributory negligence?

Answer 13

1) that the C failed to take reasonable steps for their own safety; and
2) that this failure contributed to the C’s damage

Question 14

if contributory negligence is proven - what is the effect of the defence?

Answer 14

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.

Question 15

are rescuers protected from contributory negligence?

Answer 15

yes generally - do what a reasonable rescuer would do

Question 16

what must be considered for a defence in illegality?

Answer 16

1. 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

Question 17

what is the test in Patel v Mirza for illegality defence?

Answer 17

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

Question 18

what are the 2 types of remedies?

Answer 18

damages and injunctions

Question 19

what is the aim of damages?

Answer 19

to put the C in the position they would have been in but for the D’s tortious act

Question 20

what are compensatory damages?

Answer 20

awarded to compensate the C for the harm they have suffered.

Question 21

what are special damages?

Answer 21

cover specifically provable and quantifiable financial losses at the time of trial eg, loss of earning incurred before trial

Question 22

what are general damages?

Answer 22

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

Question 23

what is the multiplier/ multiplicand approach for calculating future losses?

Answer 23

take the annual expense and multiply it by the number of years the loss will continue to be suffered

Question 24

what deductions can be taken from damages?

Answer 24

any state benefit
contractual sick pay
redundancy payment (if resulted from the injury)

Question 25

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?

Answer 25

no this is not deducted

Question 26

if a person dies from the tort - what damages can be claimed?

Answer 26

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

Question 27

can dependents of the deceased claim anything?

Answer 27

can claim for any losses suffered as a result of the death eg, family relied on the wages the deceased made

Question 28

who are dependents for the purposes of the fatal accidents act 1976? (claim for person after death)

Answer 28

dependents are close blood relations and those related by marriage or who have cohabited for over 2 years