remoteness, defences & remedies Flashcards
Define remoteness.
Once causation has been established it is necessary to examine the extent of the defendant’s liability.
- damage must not be too remote
from the defendant’s breach.
What is the test for reasonable foreseeability?
A claimant can only recover if the type of damage suffered was reasonably foreseeable at the time the defendant breached their duty
of care.
Name and explain the key case for remoteness- reasonable foreseeability.
The Wagon Mound 1-
- leaked fuel near wharf, sparks from nearby ignited oil and so fire destroyed wharf + many boats.
HELD= Damage wasn’t reasonably foreseeable- Pollution damage was foreseeable, but fire damage was not.
Can D be liable for all types of damage?
No, D ought to have foreseen the ‘type’ of damage suffered
- D will only be liable if particular type of damage was reasonably foreseeable.
Is there a requirement to foresee the exact way damage occurs and the extent?
no
What is the thin skull rule?
- need to foresee the extent’ principle applies even if the damage or extent of injury has been aggravated by the claimant’s own weakness.
-D takes victim as they find them.
How is a defence proved?
On the balance of probabilities
Which 4 elements must be shown to prove that C gave consent as a defence?
- C had capacity to give valid consent to risks
- C had full knowledge of extent and nature of risk
- C agreed to risk of injury
- C agreed voluntarily
To establish the defence of consent, a defendant must show that the claimant consented to the risk concerned ‘voluntarily’. When considering whether an employee’s consent is voluntary…
…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 is the legal test for contributory negligence?
D must establish:
- C failed to take reasonable steps for their own safety; and
- this failure contributed to C’s damage
** it’s a partial defence
How does failure to take reasonable steps differ for emergencies and children?
emergencies= 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.
children= court will take into account their age in determining the standard of care to be expected
How is contributory negligence calculated?
The court has a discretion on how great a reduction to make to the claimant’s damages.
- C’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 damages will then be deducted from the claimant’s award.
What is the defence of illegality?
ex turpi causa non oritur actio = ‘no action may be based on an illegal cause.
- If the defence of illegality is established, it is a complete defence.
Which case established test for illegality and what is the test?
Patel v Mirza:
1- what was purpose of law on which D seeks to rely
2- were there any relevant public policy considerations to be applied?
3- was denial of claim proportionate to illegality
What is the defence of necessity?
applicable where the defendant acted to save life, limb or property.
**complete defence
