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.
