Remoteness, defences, remedies Flashcards
What test considers how much damage can be recovered?
The test of reasonable foreseeability: claimant can only recover if the type of damage was reasonably foreseeable.
How have courts approached this issue of type of harm?
Different - some very broad, some wider; e.g. Bradford, a ‘cold related injury’ vs injury contracted by contact with rat’s urine - Tremain
How can we reconcile the court’s broad approach to the type of harm?
Thinking about the steps to mitigate; in Bradford, the steps to protect from cold related injuries are the same as frostbite.
When does the court take a particularly broad approach to personal injury?
When the loss is personal injury; type of harm which has to be foreseeable is only “personal injury, physical or psychiatric”
What two principles apply once the foreseeability of the type of damage has been established?
No need to foresee the exact way damage occurs, once it has been established that the type of harm was reasonably foreseeable.
No need to foresee the full extent of the damage, once type has been established.
What is the thin skull rule?
No need to foresee extent applies if aggravated by claimant’s own weakness. D must take the victim as they find them.
This also includes if claimant has no money therefore has to borrow at interest
Where does the burden of proof lie for consent?
Defendant must prove this on the balance of probabilities.
What four things must the defendant show to successfully plead consent?
C had capacity to give valid consent to risks
Had full knowledge of nature and extent of risks - subjective [particular claimant]
Agreed to the risk of injury - express or implied - subjective
Agreed voluntarily
What kind of defence is consent?
Complete - C gets no damages.
When do you impliedly agree to the risk of injury?
When the risk is so great, that it is the equivalent of meddling with an unexploded bomb. Intrinsic / obviously dangerous occupation
How does consent work with sport?
Claimant consents to risks inherent in the sport, but not serious foul play.
How does consent work with employees?
Employees are not consenting automatically; even if they know the risks.
How does consent work with rescuers?
Acting out of an impulsive desire to save life; did not freely agree to risk created by D’s negligence.
Give three examples where consent may be negated by statute?
S149 Road Traffic Act: motorists can’t use consent as a defence to passengers
S2 UCTA: can’t consent to your own death / personal injury from negligence
S65 CRA: can’t consent to your own death / personal injury from negligence
What must be demonstrated to conclude a finding of contributory negligence?
Claimant failed to take reasonable steps for their own safety
This failure contributed to the claimant’s damage
If CN is proven as a defence, how are damages reduced?
Reduced by the share that the court thinks is just and equitable. Partial defence.
Limb 1 of CN: What threshold is judged as someone taking ‘reasonable steps for their safety’?
The same degree of care that a reasonable and prudent person would take.
E.g. - getting in a car knowing driver is drunk - CN
Allowances made for claimants put in an emergency / difficult situation.
Child - reasonable standard for their age.
Rescuer prevented from CN - unless they helped to create the emergency in the first place.
What kind of defence is illegality?
A complete defence
When does illegality apply>
Claimant was involved in an illegal activity at the time they suffered loss
Set out the test for illegality:
Step 1: Has the claimant committed an illegal or possibly grossly immoral act at the time they suffered their loss caused by the defendant?
Step 2: Apply the trio of conditions to identify whether recovery of damages would damage integrity of the legal system.
a) Underlying purpose of the prohibition which has been transgressed, and whether that purpose would be enhanced by denial of the claim
b) Other relevant public policy
c) is denying the claim a proportionate response?
For the proportionality element of the trio of conditions applied in Patel v Mirza, what do courts conisder?
Seriousness of conduct
Centrality to the tort
Intentionality
Marked disparity in parties relative culpability
What two remedies can be awarded for a tort?
Injunctions [rare, only for land based]
Damages
What is the aim of damages in tort law?
To put the claimant back in the position they would have been in if not for the defendant’s tortious act
