Remoteness, defences, remedies

Question 1

What test considers how much damage can be recovered?

Answer 1

The test of reasonable foreseeability: claimant can only recover if the type of damage was reasonably foreseeable.

Question 2

How have courts approached this issue of type of harm?

Answer 2

Different - some very broad, some wider; e.g. Bradford, a ‘cold related injury’ vs injury contracted by contact with rat’s urine - Tremain

Question 3

How can we reconcile the court’s broad approach to the type of harm?

Answer 3

Thinking about the steps to mitigate; in Bradford, the steps to protect from cold related injuries are the same as frostbite.

Question 4

When does the court take a particularly broad approach to personal injury?

Answer 4

When the loss is personal injury; type of harm which has to be foreseeable is only “personal injury, physical or psychiatric”

Question 5

What two principles apply once the foreseeability of the type of damage has been established?

Answer 5

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.

Question 6

What is the thin skull rule?

Answer 6

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

Question 7

Where does the burden of proof lie for consent?

Answer 7

Defendant must prove this on the balance of probabilities.

Question 8

What four things must the defendant show to successfully plead consent?

Answer 8

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

Question 9

What kind of defence is consent?

Answer 9

Complete - C gets no damages.

Question 10

When do you impliedly agree to the risk of injury?

Answer 10

When the risk is so great, that it is the equivalent of meddling with an unexploded bomb. Intrinsic / obviously dangerous occupation

Question 11

How does consent work with sport?

Answer 11

Claimant consents to risks inherent in the sport, but not serious foul play.

Question 12

How does consent work with employees?

Answer 12

Employees are not consenting automatically; even if they know the risks.

Question 13

How does consent work with rescuers?

Answer 13

Acting out of an impulsive desire to save life; did not freely agree to risk created by D’s negligence.

Question 14

Give three examples where consent may be negated by statute?

Answer 14

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

Question 15

What must be demonstrated to conclude a finding of contributory negligence?

Answer 15

Claimant failed to take reasonable steps for their own safety

This failure contributed to the claimant’s damage

Question 16

If CN is proven as a defence, how are damages reduced?

Answer 16

Reduced by the share that the court thinks is just and equitable. Partial defence.

Question 17

Limb 1 of CN: What threshold is judged as someone taking ‘reasonable steps for their safety’?

Answer 17

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.

Question 18

What kind of defence is illegality?

Answer 18

A complete defence

Question 19

When does illegality apply>

Answer 19

Claimant was involved in an illegal activity at the time they suffered loss

Question 20

Set out the test for illegality:

Answer 20

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?

Question 21

For the proportionality element of the trio of conditions applied in Patel v Mirza, what do courts conisder?

Answer 21

Seriousness of conduct
Centrality to the tort
Intentionality
Marked disparity in parties relative culpability

Question 22

What two remedies can be awarded for a tort?

Answer 22

Injunctions [rare, only for land based]
Damages

Question 23

What is the aim of damages in tort law?

Answer 23

To put the claimant back in the position they would have been in if not for the defendant’s tortious act