Remoteness, Defences and Remedies

Question 1

Remoteness - the test of reasonable foreseeability

Answer 1

A claimant can only recover if the type of damage suffered was reasonably foreseeable at the time the defendant breached their duty of care.
This is an objective test: what was reasonably foreseeable.
This legal test was established by the Privy Council in The Wagon Mound (No 1) [1961] AC 388.

Question 2

Remoteness - the same type of harm

Answer 2

The claimant can only recover if the defendant ought to have foreseen the ‘type’ of damage suffered (hence in Wagon Mound, despite pollution damage being foreseeable, fire damage was not, and so the type of harm suffered was not foreseeable). The courts have varied their approach to the type of damage that has to be foreseeable, with some cases taking a broad approach, whereas others have taken a narrow view as to the type of harm that is foreseeable.

the case law does indicate a prevailing attitude of the judiciary to take a broad approach to the type of damage that must be foreseeable, particularly in relation to personal injury. In Page v Smith [1996] AC 155 the claimant suffered psychiatric harm following a road traffic accident. The court held that the type of harm that had to be foreseeable was personal injury, physical or psychiatric (ie the type of harm was defined very broadly). The claimant’s psychological symptoms were therefore foreseeable and recoverable.

Question 3

Remoteness - No need to foresee the exact way damage occurs

Answer 3

Once it is established that the type of damage was reasonably foreseeable, there is no need for the defendant to foresee the exact way in which the damage occurred.

Key case: Hughes v Lord Advocate [1963] AC 837
Workmen negligently left oil lamps surrounding a hole in the road. The claimant, aged 8, picked up one of the lamps and dropped it into the manhole, where it exploded, causing the claimant to fall into the manhole and suffer severe burns. The type of damage, being damaged from burns, was foreseeable – for example, it was foreseeable that the claimant might knock over and break the lamp, causing a burn. However, the events as they unfolded were probably not foreseeable.

HELD: the harm was not too remote. As long as the type of damage is reasonably foreseeable, there is no need to foresee the exact way in which the burns occurred.

Question 4

Remoteness - No need to foresee the extent of damage

Answer 4

Once it is established that the type of damage was reasonably foreseeable, the defendant is liable for the full extent of those damages, even if the extent is greater than that which would normally be expected.
Key case: Vacwell Engineering v BDH Chemicals [1971] 1 QB 88
The claimant suffered extensive property damage following the defendant’s negligence in causing a chemical explosion. A minor explosion was reasonably foreseeable as a result of the defendant’s breach. However, the explosion that did occur was of a magnitude which was not reasonably foreseeable.
HELD: the damage was not too remote for the claimant to recover the full extent of the loss. The type of damage that was foreseeable was property damage caused by an explosion. It was irrelevant that the defendant could not foresee the magnitude of such an explosion and so they were liable for the full extent of the property damage.

Question 5

‘Thin skull’ rule

Answer 5

The ‘no need to foresee the extent’ principle applies even if the damage or extent of injury has been aggravated by the claimant’s own weakness. This is the ‘thin skull’ or ‘egg shell skull’ rule; the defendant must take their victim as they find them.
Key case: Smith v Leech Brain [1962] 2 QB 405
The defendants negligently burned the claimant. The burn provoked the onset of a pre-existing malignant cancer from which the claimant subsequently died.
Held: if the defendant can foresee the original injury ie the type of harm (here, burns), they are responsible for anything that flows from that injury even if the claimant suffers to a greater extent because of a pre-existing condition. The defendant was liable for all physical damage to the claimant (the type of damage) and this included the cancer and death (the extent of the damage).

Question 6

consent

Answer 6

Defences do not become relevant until a tort has been established. Only at that point is it necessary to see if any defences are available that might completely remove liability, or at least partially reduce it. It is for the defendant to prove a defence on the balance of probabilities.
There are several defences, but the one considered in this element is consent (also known as volenti non fit injuria).
Translated this means ‘that to which a man consents cannot be considered an injury’. It is usually shortened to volenti or ‘consent’.
The defence of consent is applicable in cases where the claimant has consented to the risk(s) involved and cannot, therefore, complain of the consequential damage.
In order to succeed in this defence the defendant must show that the claimant:
· Had capacity to give valid consent to the risks
· Had full knowledge of the nature and extent of the risks
· Agreed to the risk of injury
· Agreed voluntarily
If successful, consent acts as a complete defence. The claimant gets no damages.

Question 7

consent - Had capacity to give valid consent to the risks

Answer 7

The first requirement for the defence of consent that the defendant must prove is that the claimant had the mental capacity to consent to the risk/s. This is normally straight forward, unless the claimant is say, a young child.
Also, in the case of Reeves v Commissioner of Police for the Metropolis [2000] 1 AC 360 a prisoner took his own life whilst in police custody. It was alleged that the police were responsible for his death. The police were aware that he was at risk of taking his own life. Having confirmed that the police owed a duty of care to the prisoner to prevent him from taking his own life, the House of Lords stated that the defendants could not use an argument of consent in relation to the deceased’s action as this was the very action that they were required by their duty of care to prevent. The claimant did not have the requisite capacity to consent to the risk associated with taking his life. However, damages were reduced by 50% for contributory negligence.

Question 8

consent - Had full knowledge of the nature and extent of the risks

Answer 8

The second requirement for the defence of consent, is that the claimant must have had full knowledge of the nature and extent of the risk/s that materialised. General knowledge will not suffice.
This is subjective ie the question is whether the particular claimant knew the risk.
For example, in the case of Morris v Murray [1991] 2 QB 6 the claimant accepted a lift with a drunken pilot. The claimant was also drunk, and this had to be taken account of by the court in determining whether he appreciated the danger involved. The court held that the claimant was not so drunk as to be incapable of understanding the nature and extent of the risk, and he willingly embarked on the flight knowing the defendant was drunk and likely to be negligent.

Question 9

consent - Agreed to the risk of injury

Answer 9

The third requirement for the defence of consent, is that the claimant agreed to run the risk of injury due to the defendant’s negligence. This agreement can be express or implied. Like the previous requirement, this is also subjective.
Knowledge of the risk alone is not the same as consenting to it. In Dann v Hamilton [1939] 1 KB 509 the claimant was a passenger who knew the driver was under the influence of drink, but the defence of consent failed when the driver negligently caused an accident: knowing the risk did not mean that she (the claimant) had impliedly consented to the risk (ie agreed to waive any liability for negligence on the driver’s part).

In sport, the courts have held that by willingly engaging in the sport, the claimant voluntarily agrees to the risks inherent in that sport but not to risks which are not inherent in that sport eg serious foul play in football.

Question 10

consent - Agreed voluntarily

Answer 10

The fourth requirement for the defence of consent, is that the claimant agreed to run the risk of injury due to the defendant’s negligence voluntarily. The defence cannot succeed unless the claimant acted voluntarily ie the claimant decided to subject themselves to the risk free of any constraint.
In Smith v Charles Baker & Sons [1891] AC 325 (in which the claimant was hit by a rock from a crane whilst at work) it was stressed that the requirement of voluntary consent was 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. It is therefore very difficult (although not impossible) to succeed with the defence of consent where the claimant is an employee.

Question 11

Consent may be negated by statute

Answer 11

S 149 of the Road Traffic Act 1988 prevents the use 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 of the Unfair Contract Terms Act 1977 applies to 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.

Section 65(1) of the Consumer Rights Act 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 12

The legal test for contributory negligence

Answer 12

for a finding of contributory negligence the defendant must establish:
(a) That the claimant failed to take reasonable steps for their own safety; and
(b) That this failure contributed to the claimant’s damage.

Question 13

Effect of contributory negligence

Answer 13

A finding of contributory negligence reduces the liability of a defendant in relation to the harm their breach of duty has caused the claimant to reflect the claimant’s role in the harm they suffer. In practice, this means the claimant’s damages are reduced by a percentage the court thinks just and equitable having regard to the claimant’s share in the responsibility for the damage. Contributory negligence is therefore a partial defence.
As a result, it is the most commonly raised and successful defence given it produces a ‘fair’ result ie the claimant still receives damages, but the damages are reduced to reflect their part in any loss suffered.
The defence is available to other torts in addition to negligence, and possibly to breach of contract claims.

Question 14

Failure to take reasonable steps for safety

Answer 14

The first stage of the legal test for contributory negligence, is that the claimant failed to take reasonable steps for their safety. The claimant is required to take the same degree of care that a reasonable and prudent person would take. The standard is objective.

Allowances are made for claimants who have been placed in an emergency or difficult dilemma ie claimants who are injured whilst trying to save themselves.
In Jones v Boyce (1816) 1 Stark 493 the claimant was a passenger on the defendant’s coach. When a horse started to run away with the carriage due to the defendant’s negligence, the claimant reasonably believed that the coach was about to overturn and so jumped off and broke his leg.
There was no contributory negligence. The claimant had acted reasonably in the situation. The defendant could not criticise the claimant’s attempts to avoid the danger created by the defendant.

Rescuers are generally protected from contributory negligence.

The nature of the duty must also be considered. In St George v Home Office [2008] EWCA Civ 1068 the claimant was a prisoner who fell out of a top bunk bed during a seizure caused by withdrawal from drugs. Prison staff had failed to adequately look after him, despite knowing of the risk of withdrawal seizures.
It was held that it was inappropriate to reduce the claimant’s damages on the basis that his own role in creating the addiction amounted to contributory negligence, because having told the prison officers about the risk of seizures, it would not be equitable to reduce his damages for that reason.

Question 15

Failure contributed to the claimant’s damage

Answer 15

The claimant’s fault must contribute to the damage suffered, although it need not contribute to the accident. Therefore, failure to wear a seat belt will be contributory negligent if wearing a seat belt would have reduced or avoided injury (Froom v Butcher [1976] QB 286) even though failing to wear the seat belt does not cause the accident.
The same applies to failing to wear a crash /cycle helmet or not wearing it properly.

Question 16

The deduction which is made

Answer 16

The court has a discretion on how great a reduction to make to the claimant’s damages. The claimant’s degree of culpability will generally be expressed in percentage terms, taking into account the respective culpability of the defendant and claimant. An equivalent percentage of the damages will then be deducted from the claimant’s award.
The court looks at what is just and equitable in all the circumstances and will likely order a greater reduction if the claimant has contributed to the accident as well as their injury.
In Froom v Butcher [1976] QB 286, 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.
If there are several defendants, the court first determines whether the claimant’s claim against the defendants as a whole should be reduced as a result of contributory negligence. Once that is determined, and it is known what the defendants as a whole should pay, the court determines how liability is shared between the defendants (Fitzgerald v Lane [1989] AC 328).

Question 17

‘Special considerations’ for:

Answer 17

(1) Emergencies / difficult dilemmas
(2) Age of claimant
(3) Rescuers
(4) Nature of duty’

Question 18

illegality

Answer 18

illegality (also known as ex turpi causa non oritur actio, meaning ‘no action may be based on an illegal cause’). If the defence of illegality is established, it is a complete defence.

Why have the defence?
Illegality might apply where the claimant was involved in an illegal activity at the time they suffered their loss. At the heart of this defence is a desire to avoid granting a claim where this would produce inconsistency and disharmony in the law, harming the integrity of the legal system. Allowing a claim which is intertwined with a crime could mean the law appearing to allow and prohibit something simultaneously. If the law dictates a person should be imprisoned or fined as punishment for their criminal wrongdoing, they should not then be able to seek compensation for that imprisonment or fine by bringing a claim against a defendant they claim caused them to commit that wrong.
In a wider sense, a claimant should not be able to recover damages for losses they suffer while engaged in a criminal activity; this is based on the idea that it would be “offensive to public notions of the fair distribution of resources that a claimant should be compensated (usually out of public funds) for the consequences of his own criminal conduct” Patel v Mirza [2016] UKSC 42

Question 19

illegality - Difficulty in defining the limits of the defence

Answer 19

Whilst the need for the defence might be clear, it is not always easy to determine when it should apply. In Delaney v Pickett [2011] EWCA Civ 1532 the claimant sued the defendant after he was seriously injured in a road traffic accident caused by the negligence of the defendant. The claimant and defendant were together transporting a large quantity of cannabis at the time of the accident. In this case the Court of Appeal rejected the illegality defence and the Claimant succeeded in his claim against the defendant. The criminal activity (the transporting of cannabis) did not cause the accident and was incidental to the negligent driving.

Question 20

Suggested legal test for illegality

Answer 20

A lack of certainty as to how to apply the defence of illegality led to judicial calls for reform and clarity. The Supreme Court took the opportunity to do this in Patel v Mirza [2016] UKSC 42. This case was a breach of contract/unjust enrichment claim but the court confirmed the same principles apply whether the illegality is being argued in relation to a claim for breach of contract, tort or unjust enrichment.

Step 1:
Has the claimant committed an illegal (or possibly grossly immoral) act at the time they suffered their loss caused by the defendant? For example, in Ashton v Turner [1981] QB 137 (where the defence was successful) the parties were escaping from a burglary when the claimant was injured by the defendant’s negligent driving. If no such illegal act has been committed, the defence does not apply. If it has, move on to Step 2.

Step 2:
Apply the test in Patel v Mirza [2016] UKSC 42 taking into account earlier decisions which turn on similar facts. Patel is the current leading authority for the defence of illegality. In this case, the Supreme Court confirmed that the underlying policy question which needed to be answered when determining whether illegality applied is, ‘whether 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’. In order to determine this question, the court identified the following ‘trio of necessary 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.
In relation to (c), the assessment of proportionality, the court identified a list of non-exhaustive factors: the seriousness of the conduct, its centrality to the tort (whether there is a causal link between the illegality and the tort), whether it was intentional and whether there was a marked disparity in the parties’ respective culpability.

These three considerations should be applied to the facts to determine whether or not the defence should be allowed to proceed.

Question 21

two principle remedies

Answer 21

In tort there are two principal remedies that a court can award in a successful action, namely damages and injunctions.
An injunction is an order forcing the defendant to act or preventing the defendant from acting in a certain way. They are rare and only suitable for certain kinds of cases, for example, in land-based torts.
Damages means an award of money. It is by far the most common remedy for a claim in tort. This element focuses on damages.

Question 22

Damages

Answer 22

Generally, in tort actions, a claimant will be seeking compensation for the wrong perpetrated on them and any consequences that have followed from that wrong. This is achieved by awarding compensatory damages.
The aim of damages in the law of tort is to put the claimant in the position they would have been in but for the defendant’s tortious act, as far as this is possible with an award of money. It is backwards looking, seeking to restore the claimant to the position before the tort happened.

Question 23

General and special damages

Answer 23

Key definition: ‘compensatory damages’
Damages awarded to compensate the claimant for the harm they have suffered. The vast majority of awards of damages in tort claims are awards of compensatory damages.

Compensatory damages are subdivided into two categories: general damages and special damages.
Special damages cover specifically provable and quantifiable financial losses at the time of trial. For example, loss of earnings incurred before trial.
General damages cover future financial losses, which cannot be specifically proven, and non-quantifiable losses such as compensation for physical injury.

Question 24

Remedies - Pain, suffering and loss of amenity award (PSLA)

Answer 24

There are two parts to this award. The element of ‘pain and suffering’ covers just that, whereas the ‘loss of amenity’ attempts to compensate for the effect of the injury on the claimant’s lifestyle, for example if they can no longer swim or walk. The size of the ‘loss of amenity’ element of the award will, of course, depend on how active the claimant was prior to the injury and what they have been prevented from doing as a result of the injury.
Whilst it is impossible to attach a specific value to any particular injury and its effects, in the absence of any better method this is precisely what the courts have attempted to do. A body of case law has built up which is used as a source of reference by the courts in determining the level of compensation a claimant may receive. Such case law can be found in a publication known as Kemp and Kemp.

Question 25

calculation of future loss

Answer 25

For one-off future expenses a lump sum will be given, eg the cost of adapting the home.
The situation is more complex when there is a continuing loss such as future loss of earnings or recurring expenses of medical treatment or care. The basic approach is to take the annual expense and multiply it by the number of years the loss will continue to be suffered. This is known as the multiplier/multiplicand approach. However, to simply use, as the multiplier, the claimant’s life expectancy or predicted number of years they will continue working would be unrealistic. As already stated, damages are designed to be compensatory. The court is also wary to avoid over- compensation. The court works on the assumption that the lump sum award it will make will be invested and the figure it awards, in effect, aims to provide the claimant with a sufficient income from the investment to replace what they have lost. If an actual number of years were to be used as a multiplier, the sum awarded, when invested, would result in the claimant being massively over-compensated.

Question 26

Deductions from damages

Answer 26

Once the damages have been calculated it may be appropriate to make one or more of the following deductions from the sum assessed:
* Any state benefits received by the claimant as a result of their injury, such as unemployment benefit if they have been prevented from working. State benefits can be deducted from compensation for lost earnings; cost of care; and loss of mobility. The defendant 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 the redundancy resulted from the injury.
These deductions are made to avoid the claimant receiving two sums of money for the same reason.
The overall sum reached may be further reduced by virtue of any finding of contributory negligence.
Insurance pay-outs, ill-health pensions and any sums received by way of gifts or charity will not be deducted.

Question 27

Damages when the claimant dies

Answer 27

Law Reform (Miscellaneous Provisions) Act 1934
· Under this Act the ‘estate’ (ie legal representatives of the deceased person) 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. This will be calculated on the same basis as a normal personal injury award. No claim can be made for any losses that might have arisen after the date of death (s 1(2)(a)).
· Note that there is no claim for the death itself. Nor can someone who is going to die as a result of a tort, but has not yet died (eg someone negligently exposed to a fatal disease but who has not yet died from it) claim for their loss of life expectancy.

Question 28

Legislation: Fatal Accidents Act 1976

Answer 28

· This Act allows for any dependants of the deceased (ie people who depended on the deceased) to claim for any losses suffered as a 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)). Their claim is assessed in much the same way as a personal injury claim. Their losses arising from the date of the death to the date of assessment will be specifically calculated and any loss continuing after the date will be awarded, either as a lump sum or on a multiplier/multiplicand basis as appropriate.
· As the court is trying to cope with even more uncertainties in this sort of claim (primarily because it will be dealing with the future of a number of dependants rather than just a victim) multipliers will be lower than in personal injury cases. End of legislation.