Remoteness, defences & remedies Flashcards
What is the test for remoteness?
The reasonable foreseeability test-a C can only recover if the type of damage suffered was reasonably foreseeable at the time the D breached their duty of care.
Describe the outcome of The Wagon Mound (No 1) (1961) case.
The D negligently caused oil to spill in Sydney Harbour, which spread 600 feet into the vicinity of a ship at the C’s wharf.
Two days later welding operations at the ship caused a spark to come into contact with debris on the oil and a fire ensued, causing extensive damage to C’s premises.
Court held that the damage was not reasonably foreseeable as the welders had sought expert advice before welding and were told there was no risk of fire.
What must the Defendant have foreseen in order for the Claimant to recover the damage?
The C can only recover if the D ought to have foreseen the type of damage suffered.
Describe the outcome of the cases of Bradford v Robinson Rentals (1967) & Tremain v Pike (1969).
Bradford v Robinson Rentals (1967): C suffered from frostbite after the heater in his work van provided by the D was not working. It was held that it was reasonably foreseeable if the D did not maintain their vehicles that the C could suffer a cold-related injury.
Tremain v Pike (1969): C contracted Weil’s disease whilst employed by the D, allegedly after coming into contact with rat urine. It was held that this injury was a remote possibility as it was a very rare disease and nobody knew it could be contracted after handling rat urine.
Does the Defendant need to foresee the exact way in which damage occurs-refer to Hughes v Lord Advocate (1963).
Once it is established that the type of damage was reasonably foreseeable, there is no need to foresee the exact way in which the damage occurred.
Hughes v Lord Advocate (1963): D negligently left oil lamps surrounding a hole in the road and the C picked it up and dropped it where it exploded causing personal injury. Court held harm was not too remote, as damage from burns was foreseeable.
Does the Defendant need to foresee the extent of the damage?
No, the D is liable for the full extent of the damage once it is established that the type of damage was reasonably foreseeable (even if it is greater than expected).
What is the ‘thin skull’ rule-refer to Smith v Leech Brain (1962)?
The D must take their victim as they find them, it is irrelevant if the damage or extent of injury has been aggravated by the C’s own weakness.
Smith v Leech Brain (1962): D negligently burned the C, which provoked the onset of a pre-existing malignant cancer from which the C subsequently died. The D was liable as the initial burn injury was foreseeable and they are responsible for anything that flows from the injury.
Does the ‘thin skull’ rule apply even if the damage has been aggravated by the C’s own impecuniosity-refer to Lagden v O’Connor (2004)?
Yes, it applies in this instance too.
Lagden v O’Connor (2004): C hired a vehicle on credit while waiting for D’s insurers to repair his car and he couldn’t afford the hire charges so agreed to pay later incurring interest.
It was reasonably foreseeable that the C would have to borrow money to mitigate his damage and therefore the D was liable for the full extent of the C’s economic loss.
What are the 3 key defences to tort/negligence claims and what is the burden of proof regarding a defence?
-Consent (volenti non fit injuria)
-Contributory negligence
-Illegality
The D has to prove a defence on the balance of probabilities.
Is the defence of consent (volenti non fit injuria) a complete defence?
Yes, it is a complete defence to a claim in tort/negligence.
In order to succeed with a defence of consent, what must the Defendant 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
In relation to capacity to give valid consent to the risks, describe the case of Reeves v Commissioner for the Metropolis (2000).
The C did not have the requisite capacity to the risk associated with taking his life whilst in custody as he had a mental illness.
In relating to having full knowledge of the nature and extent of the risks, describe the case of Morris v Murray (1991).
The C accepted a lift with a drunken pilot and was also drunk. The Court held that the C was not so drunk and willingly embarked on the flight knowing the C was drunk and likely to be negligent therefore the defence of consent applied.
In relation to agreeing to the risk of injury, describe the case of Dann v Hamilton (1939).
C was a passenger who knew the D driver was under the influence of alcohol.
Consent defence failed as she knew the risk but did not agree to wave any liability on the D’s part.
In relation to agreeing voluntarily to the risk of injury, describe the case of Smith v Charles Baker & Sons (1891).
Difficult to succeed with defence of consent when the C is an employee, as they have to agree to the risks of their job in fear of maybe losing their job. The agreement to risk of injury is therefore not necessarily voluntary in nature.
How may the defence of consent be negated by statute?
S149 RTA 1988: prevents the use of consent by motorists facing claims from their passengers.
S2 UCTA 1977: prohibits Ds excluding or restricting liability for death or personal injuries from negligence.
S65(1) CRA 2015: prohibits traders, when dealing with consumers, from using contract terms limiting or excluding liability for death or personal injury through negligence.
Describe the defence of contributory negligence as outlined in S1(1) Law Reform (Contributory Negligence) Act 1945.
Where any person suffers damage as the result partly of his own fault and partly the fault of any other person or persons, a claim in respect of that damage shall not be defeated by reason of the fault of the person suffering the damage, but the damages recoverable in respect thereof shall be reduced to such extent as the court thinks just and equitable having regard to the claimant’s share in the responsibility for the damage.
What must a Defendant establish in order to succeed with a defence of contributory negligence-refer to Jones v Livox (1952).
-That the C failed to take reasonable steps for their own safety; and
-That the failure contributed to the C’s damage
Is a Claimant contributorily negligent where they knew the driver had consumed excessive alcohol or had been drinking with the driver and a crash occurs?
Yes, as per the case of Owens v Brimmell (1977)-although allowances are made for a C who has been placed in an emergency or difficult dilemma.
Can rescuers be found contributorily negligent?
Yes, if they negligently helped to create the emergency situation in the first place-Harrison v BRB (1981).
Does a Claimant’s contributory negligence need to contribute to the accident-refer to Froom v Butcher (1976).
The C’s fault must contribute to the damage suffered, although it need not contribute to the accident.
Failure to wear a seat belt will be contributorily negligent as it will have reduced or avoided injury, even though it did not cause the accident-Froom v Butcher (1976).
How is the deduction for contributory negligence made?
The Court has a discretion on how great a reduction to make, usually expressed in percentage terms.
Froom v Butcher (1976): 25% if seatbelt would have avoided injury, 15% if reduced it and 0% if no difference.
Describe the defence of illegality.
It is a complete defence which means that no action may be based on an illegal cause. Also known as ex turpi causa non oritur actio.
In relation to the defence of illegality, describe the case of Gray v Thames Train (2008).
C suffered PTSD after being involved in a rail crash caused by D’s negligence. Two years after, the C stabbed and killed a pedestrian in a road rage accident and tried to sue the D for loss of earnings and general damages.
The D argued that any claim should be barred by illegality and the House of Lords agreed-allowing the claim would be inconsistent with the criminal court sentence.
In relation to the defence of illegality, describe the case of Delaney v Pickett (2011).
C sued D after an RTA injury whilst they were transporting large quantities of cannabis.
Court rejected illegality defence as the criminal activity was not causative and was incidental to negligent driving.
In relation to the defence of illegality, describe the case of Patel v Mirza (2016).
C and D entered into an insider trading contract but the trading did not actually go ahead because the inside info wasn’t received. C sought the return of the money and D raised the defence of illegality.
All nine Supreme Court judges agreed the defence should not apply to defeat the C’s claim for the return of his money. A C will not be prevented from enforcing his claim to property because it was paid to perform an illegal act, unless allowing his claim would be contrary to relevant public policy, or it would be disproportionate to allow him to recover.
What are the trio of necessary conditions that must be taken into account when considering whether the defence of illegality should succeed?
-The underlying purpose of the prohibition which has been transgressed and whether that purpose will be enhanced by denial of the claim
-Other relevant public policy which may be rendered ineffective by denial of the claim; and
-Whether denying the claim would be a proportionate response to the illegality
In relation to the defence of illegality, describe the outcome of Henderson v Dorset Healthcare University NHS (2020).
C, mentally ill patient, killed her mother during a psychotic episode. D admitted negligence in failing to return the C to hospital and causation.
C brought a negligence claim against the health authority which was denied on illegality grounds because the losses claimed were a consequence of her criminal act.
What are the two principal remedies in tort law?
Damages-an award of money (most common remedy)
Injunction-an order forcing the D to act or preventing the D from acting in a certain way
What is the aim of damages in tort law?
To put the C in position they would have been but for the D’s tortious act-restore the C to the position they were in before the tort happened.
What are general and special damages and what do they cover?
General damages cover future financial losses which cannot be specifically proven, and non-quantifiable losses such as PSLA.
Special damages cover specifically provable and quantifiable financial losses at the time of trial eg loss of earnings incurred before trial.
What is a PSLA award and what is its aim?
Pain, suffering and loss of amenity award. It is expressed as an overall single lump sum and aims to compensate the C for pain, suffering and loss of amenity for the effect of the injury on C’s lifestyle.
How are future losses calculated?
For one-off future expenses, a lump sum will be given e.g. cost of adapting the home.
A multiplier approach is applied to future loss of earnings.
What deductions may be made from a damages award?
-Any state benefits
-Any contractual sick pay
-Any redundancy payment, if it resulted from the injury
Also a deduction if there is a finding of contributory negligence.
When someone dies as a result of a tort, what does the Law Reform (Miscellaneous Provisions) Act 1934 provide for?
Under this Act the estate of the deceased may bring a claim for any losses suffered by the deceased as a result of an accident up to the date of the death. This will be calculated on the same basis as a nominal PI award.
No claim can be made for any losses that might have arisen after the date of death.
What does the Fatal Accidents Act 1976 allow for?
This Act allows for any dependants of the deceased to claim for any losses suffered as a result of the death.
What is the definition of dependants under the Fatal Accidents Act 1976?
The Act defines dependants as close blood relations and those related by marriage or who have cohabited for over two years (s1(3)). Their claim is assessed in the same way as a personal injury claim.
Who may claim bereavement damages and funeral expenses under the Fatal Accidents Act 1976?
-The spouse, civil partner or cohabiting partner (living with the deceased for at least two years at the time of death) or the parents of an unmarried minor can claim bereavement damages. The amount payable is a specified fixed sum.
Funeral expenses can also be recovered, if paid for by the dependents.
