Remotness, Defences And Remedies

Question 1

What is remoteness in legal terms?

Answer 1

Remoteness refers to the limits placed on the extent of loss recoverable, ensuring that the damage must not be too remote from the defendant’s breach.

Question 2

What is the key definition related to remoteness?

Answer 2

The test of 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.

Question 3

Which case established the legal test for remoteness?

Answer 3

The legal test was established by the Privy Council in The Wagon Mound (No 1) [1961] AC 388.

Question 4

What was the outcome of The Wagon Mound (No 1) case?

Answer 4

The court held that the damage was not reasonably foreseeable, as fire damage was not a foreseeable consequence of the oil spill.

Question 5

What must a claimant prove regarding the type of harm in remoteness cases?

Answer 5

The claimant can only recover if the defendant ought to have foreseen the ‘type’ of damage suffered.

Question 6

What was the ruling in Bradford v Robinson Rentals [1967]?

Answer 6

The court held that it was reasonably foreseeable that the claimant could suffer some cold-related injury due to the employer’s negligence.

Question 7

What was the ruling in Tremain v Pike [1969]?

Answer 7

The court held that injury from rat bites was foreseeable, but injury contracted by contact with rat’s urine was not, making it too remote.

Question 8

How do the cases of Bradford and Tremain differ in their approach to foreseeability?

Answer 8

Bradford took a broad approach to foreseeability, while Tremain took a narrow view.

Question 9

What does it mean that there is no need to foresee the exact way damage occurs?

Answer 9

Once the type of damage is reasonably foreseeable, the defendant does not need to foresee the exact manner in which the damage occurs.

Question 10

What was the outcome of Hughes v Lord Advocate [1963]?

Answer 10

The court held that the harm was not too remote, as the type of damage (burns) was foreseeable, even if the specific events were not.

Question 11

What does it mean that there is no need to foresee the extent of damage?

Answer 11

Once the type of damage is established as foreseeable, the defendant is liable for the full extent of those damages, regardless of foreseeability of the extent.

Question 12

What was the ruling in Vacwell Engineering v BDH Chemicals [1971]?

Answer 12

The court held that the claimant could recover for the full extent of property damage caused by an explosion, even if the magnitude was not foreseeable.

Question 13

What is the ‘thin skull’ rule?

Answer 13

The ‘thin skull’ rule means the defendant must take their victim as they find them, being liable for all consequences of their actions, even if the claimant has pre-existing conditions.

Question 14

What was the outcome of Smith v Leech Brain [1962]?

Answer 14

The court held that the defendant was liable for all physical damage, including cancer and death, resulting from the original injury (burns).

Question 15

What was the ruling in Lagden v O’Connor [2004]?

Answer 15

The court held that the defendant was liable for the full extent of the claimant’s economic loss, even though it was aggravated by the claimant’s lack of funds.

Question 16

What is the summary of the test for remoteness?

Answer 16

The type of damage suffered must have been reasonably foreseeable at the time of the breach, and if so, the claimant will succeed regardless of the precise way or extent of the damage.

Question 17

What is the defence of consent?

Answer 17

The defence of consent applies when the claimant has consented to the risks involved and cannot complain of the consequential damage.

Question 18

What must a defendant prove for the defence of consent?

Answer 18

The defendant must prove that the claimant had capacity, full knowledge of the risks, agreed to the risk of injury, and agreed voluntarily.

Question 19

What was the outcome of Reeves v Commissioner of Police for the Metropolis [2000]?

Answer 19

The court held that the police could not use consent as a defence, as they had a duty to prevent the claimant from taking his own life.

Question 20

What does full knowledge of the risks entail?

Answer 20

The claimant must have full knowledge of the nature and extent of the risks, which is subjective and specific to the claimant.

Question 21

What was the ruling in Morris v Murray [1991] regarding implied consent?

Answer 21

The court held that the claimant had impliedly consented to the risk of injury by accepting a lift with a drunken pilot.

Question 22

What indicates implied agreement to the risk?

Answer 22

Engaging in an obviously dangerous activity can indicate implied agreement to the risk, as seen in Morris v Murray.

Question 23

How does consent apply in sports?

Answer 23

By willingly engaging in a sport, the claimant agrees to inherent risks but not to risks that are not inherent, such as serious foul play.

Question 24

What does voluntary consent mean?

Answer 24

The claimant must agree to run the risk of injury voluntarily, free from any constraint.

Question 25

What was the ruling in Smith v Charles Baker & Sons regarding voluntary consent?

Answer 25

The court stressed that knowledge of risks alone does not equate to voluntary consent, especially for employees.

Question 26

What was the outcome in Baker v T.E. Hopkins & Sons Ltd regarding rescue cases?

Answer 26

Dr Baker was held to be a rescuer, but his agreement to the risk was not voluntary, as he acted impulsively to save lives.

Question 27

How can consent be negated by statute?

Answer 27

Certain statutes, like the Road Traffic Act 1988, prevent the use of consent as a defence in specific circumstances.

Question 28

Can a drunk driver rely on consent to defeat a claim from a passenger who is injured?

Answer 28

No, a drunk driver cannot rely on consent to defeat the claim of a passenger who voluntarily accepts a lift and is injured.

Question 29

What does Section 2 of the Unfair Contract Terms Act 1977 prohibit?

Answer 29

It prohibits defendants from excluding or restricting liability for death or personal injuries resulting from negligence.

Question 30

Under Section 2(2) of the Unfair Contract Terms Act 1977, what types of loss may be excluded?

Answer 30

Other types of loss may be excluded, subject to a test of reasonableness.

Question 31

What does Section 2(3) clarify regarding a person’s agreement to contract terms?

Answer 31

It clarifies that a person’s agreement to or awareness of a contract term purporting to exclude liability for negligence does not indicate voluntary acceptance of any risk.

Question 32

What does Section 65(1) of the Consumer Rights Act 2015 prohibit?

Answer 32

It prohibits traders from using contract terms limiting or excluding liability for death or personal injury through negligence when dealing with consumers.

Question 33

What is required for an exclusion clause to be binding under Section 62 of the Consumer Rights Act 2015?

Answer 33

An exclusion clause is only binding if it is fair.

Question 34

What does Section 65(2) state about voluntary acceptance of risk?

Answer 34

It states that voluntary acceptance of risk cannot be assumed merely because the consumer agreed or knew about the term.

Question 35

What are the requirements for a defendant to establish the defence of consent?

Answer 35

The defendant must show that the claimant had capacity to give valid consent, full knowledge of the risks, agreed to the risk of injury, and agreed voluntarily.

Question 36

Can motorists use the defence of consent against claims from passengers?

Answer 36

No, the defence of consent cannot be used by motorists facing claims from passengers.

Question 37

What do the Unfair Contract Terms Act 1977 and Consumer Rights Act 2015 state about awareness of terms limiting liability?

Answer 37

They provide that being aware of a term limiting or excluding liability does not mean the party consents to those risks or losses.

Question 38

What is contributory negligence?

Answer 38

Contributory negligence is a legal concept where a claimant’s damages can be reduced if they are found to have contributed to their own harm.

Question 39

What is the legal test for contributory negligence?

Answer 39

The defendant must establish that the claimant failed to take reasonable steps for their own safety and that this failure contributed to the claimant’s damage.

Question 40

What does s 1(1) of the Law Reform (Contributory Negligence) Act 1945 state?

Answer 40

It states that a claim shall not be defeated by the fault of the person suffering damage, but damages shall be reduced according to the claimant’s share in the responsibility.

Question 41

What is the effect of a finding of contributory negligence?

Answer 41

It reduces the liability of the defendant and the claimant’s damages are reduced by a percentage deemed just and equitable.

Question 42

What is the standard of care expected from a claimant?

Answer 42

The claimant is required to take the same degree of care that a reasonable and prudent person would take.

Question 43

What is an example of contributory negligence?

Answer 43

In Owens v Brimmell [1977], a passenger was found guilty of contributory negligence for riding with a driver who had consumed excessive alcohol.

Being drunk is not an excuse for failing to take reasonable steps for your own safety.

Question 44

How are claimants in emergency situations treated under contributory negligence?

Answer 44

Allowances are made for claimants who are injured while trying to save themselves, as seen in Jones v Boyce (1816).

Question 45

How does age affect the standard of care in contributory negligence?

Answer 45

The court takes into account the claimant’s age when determining the standard of care expected, as illustrated in Gough v Thorne [1966].

Question 46

Are rescuers protected from contributory negligence?

Answer 46

Yes, rescuers are generally protected unless they negligently created the emergency, as shown in Baker v T.E. Hopkins & Son Ltd [1959].

Question 47

What must be established for a claimant’s fault to be contributory negligence?

Answer 47

The claimant’s fault must contribute to the damage suffered, even if it did not cause the accident.

Question 48

How does the court determine the reduction in damages for contributory negligence?

Answer 48

The court has discretion to determine the reduction based on the claimant’s degree of culpability, expressed in percentage terms.

Question 49

What is the significance of Froom v Butcher [1976] regarding seat belts?

Answer 49

Lord Denning suggested a 25% reduction if wearing a seat belt would have avoided injury, and 15% if it would have reduced it.

These figures are not fixed and vary based on circumstances.

Question 50

What is the illegality defense?

Answer 50

Illegality may apply when the claimant was involved in illegal activity at the time of their loss, aiming to maintain the integrity of the legal system.

Question 51

What was the outcome of Gray v Thames Trains [2008] regarding illegality?

Answer 51

The House of Lords held that allowing the claimant’s claim would be inconsistent with his criminal conviction for manslaughter.

Question 52

What two-step test is applied for illegality?

Answer 52

Step 1: Determine if the claimant committed an illegal act at the time of loss. Step 2: Apply the Patel v Mirza test to assess the impact on the legal system.

Question 53

What are the three necessary conditions from Patel v Mirza?

Answer 53

1. The purpose of the prohibition transgressed. 2. Other relevant public policy considerations. 3. Proportionality of denying the claim.

Question 54

What remedies are available in tort?

Answer 54

The principal remedies are damages and injunctions, with damages being the most common.

Question 55

What are compensatory damages?

Answer 55

Compensatory damages are awarded to compensate the claimant for the harm suffered, aiming to restore them to their position before the tort occurred.

Question 56

What is the aim of damages in the law of tort?

Answer 56

To put the claimant in the position they would have been in but for the defendant’s tortious act, as far as possible with an award of money.

Question 57

What are compensatory damages?

Answer 57

Damages awarded to compensate the claimant for the harm they have suffered. The vast majority of awards of damages in tort claims are awards of compensatory damages.

Question 58

What are the two categories of compensatory damages?

Answer 58

General damages and special damages.

Question 59

What do special damages cover?

Answer 59

Specifically provable and quantifiable financial losses at the time of trial, such as loss of earnings incurred before trial.

Question 60

What do general damages cover?

Answer 60

Future financial losses which cannot be specifically proven, and non-quantifiable losses such as compensation for physical injury.

Question 61

What does the Pain, Suffering and Loss of Amenity award (PSLA) consist of?

Answer 61

Two parts: ‘pain and suffering’ and ‘loss of amenity’, which compensates for the effect of the injury on the claimant’s lifestyle.

Question 62

How are future losses calculated?

Answer 62

For one-off future expenses, a lump sum is given. For continuing losses, the annual expense is multiplied by the number of years the loss will continue, known as the multiplier/multiplicand approach.

Question 63

What deductions may be made from damages?

Answer 63

Deductions may include state benefits received, contractual sick pay, and redundancy payments to avoid double compensation.

Question 64

What is the Law Reform (Miscellaneous Provisions) Act 1934?

Answer 64

Legislation allowing the estate of a deceased person to claim for losses suffered up to the date of death, calculated like a normal personal injury award.

Question 65

What is the Fatal Accidents Act 1976?

Answer 65

Legislation allowing dependants of the deceased to claim for losses suffered due to the death, including bereavement damages and funeral expenses.

Question 66

What can dependants claim under the Fatal Accidents Act 1976?

Answer 66

They can claim for losses suffered as a result of the death, bereavement damages, and recovery of funeral expenses.

Question 67

What is the summary of damages for torts?

Answer 67

Damages are awarded on a compensatory basis, categorized into special damages (provable financial losses) and general damages (future and non-quantifiable losses).