Tort 4 Flashcards
Defences
-
Consent (voluntary assumption of risk)
Complete defence.
D must establish -
C has full knowledge of nature and extent of risk
C willingly consented to accept risk of being injured.
knowledge -
full knowledge of nature and extent.
Consent -
freely consented.
Drink driving - not enough knowledge was sufficient to imply consent (passenger).
Morris v Murray -
C must have known how drunk he was
implicitly waived right to damages.
S149 RTA 1988 -
acceptance of risk by passenger invalid (insurance claims).
No fear or duress
Hard to prove in employers (financial duress).
Rescuers not consent if;
acting to rescue due to person or property endangered by D negligence.
acting under compelling legal, social or moral duty and
conduct in all circumstances was reasonable
Both to professional and lay rescuers.
Contributory negligence
Partial defence.
Two elements;
Carelessness on C’s part
and
carelessness contributed to C’s damage.
Damages will be reduced.
Court makes appropriate reduction.
Reeves v Metropolitan Police Commissioner (1999)-
50% to blame, 50% of damages.
Damages reduced -
such extent as court thinks just and equitable
having regard to C’s share in responsibility
Will take into account
Culpability
Causation.
Who caused the damage not the incident.
Froom v Butcher -
causal link required.
Crash helmets not worn -
damages reduced
Drunken drivers -
passengers who accept lifts from drunk
Test for contributory negligence -
whether C failed to take reasonable care for own safety.
Children -
older child more likely to find.
Gough v Thorne - such an age as reasonably expected to take precautions for his safety.
‘Blameworthy’
Whether ‘ordinary child of C’s age would have taken more care for safety.
If parents cannot be contributory.
Seek contribution under Civil Liability (Contribution) Act 1978.
Rescuers -
judged against standard of reasonable rescuer, allowance made for emergency situation.
Only if ‘wholly unreasonable disregard for safety’
Employees -
factors such as noisy repetitive work.
Depends on type of work
Dilemma (imminent danger) -
whether D would be successful in arguing contributory negligence against C who is injured while trying to save themselves.
Whether method used reasonable in ‘agony’ situation.
If act in ‘agony of moment’ will not be if court satisified reasonable response to danger.
Illegality
Complete defence
Inherent part of criminal enterprise.
-Close connection between illegal activity of C and injury which they suffer so damages arise directly out of activity so that it would be contrary to public policy.
Remedies for personal injury and death
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Compensatory damages
Measure of damages -
Put C in position they would have been if tort was not committed.
Mitigation of loss -
Cannot claim for losses which could have been avoided by taking reasonable steps.
One-action rule -
Only one claim based on one set of facts.
Lump sum to cover all damages.
Special damages -
capable of being calculated precisely at time
General damages-
Losses which are not capable of being calculated precisely and therefore left to court to determine, Still stated but no figure.
Damages for personal injury
Divided into two types
Pecuniary losses -
mathematical calculation (capable of).
Non-pecuniary -
not capable.
e.g. personal injury itself.
Pain and suffering -
Past, present and future.
Anguish of life expectancy being shortened.
C must be aware of injuries.
One lump sum.
Loss of amenity -
Loss of enjoyment of life -
objective test (conscious or not)
Quantification of non-pecuniary -
courts consider individuals circumstances.
Medical expenses-
Pre-trial will be special damages - calculated by adding together.
Post-trial - annual cost of treatment and years of treatment required.
Any reasonable medical expense incurred.
Payment to NHS do not count.
Can choose to pay for private.
Loss of earnings
Pre-trial -
net earnings from that period (special damages).
After tax and NI, pension contributions (NET).
Perks of job included.
Post-trial -
one lump sum.
Multiplicand -
gross annual loss.
If very likely increase court can add.
Will deduct tax, NI and pension contributions.
(no allowance for inflation)
Figure is called multiplicand
Multiplier -
how long C will lose money.
If cannot work again (pre-accident working life expectancy).
C should not be over-compensated.
Interest rate (discount rate) -
Minus 0.25%.
Treated as risk adverse investors.
Ogden tables (find correct mulitplier)
Applied to multiplier (the 0.25%)
Future possibilities (redundancy) called contingencies of life -
court may reduce multiplier.
‘Lost years’ when expected to die;
deduct expenditure. (generally at 25% for person married with children) and (33% for no dependants).
Child lost earnings -
child’s parents earn or
national average earnings
If shown particular promise in area will be taken into account.
Services
(assistance etc..)
C can recover.
Cost must be reasonable.
If given up employment can recover cost.
Loss of earnings but cannot exceed commercial rate for providing services.
Loss of earning capacity;
can still work but disadvantaged if lose job.
Judge can award but must be satisfied real risk of losing job.
Then try to put in money value.
Other pecuniary expenses
Any reasonable loss incurred as a result of accident.
Deductions
Insurance, ill-health pensions, benefits
May be reduced to ensure not over-compensated.
Exceptions allowed to keep in full -
insurance payments
ill-health pensions
charitable payments (employer as well if employer not a tortfeasor).
Benefits -
Deduce from amount and require D to pay back to state.
Where -
compensation for lost earnings
compensation for cost of care
compensations for loss of mobility
No benefits deductible for pain and loss of amenity.
Provisional damages and periodic payments
S32 A SCA 1981 - provisional damages.
E.g. might lose sight in eye
s2 Damages Act 1996 -
allow court to award damages for personal injury as periodic payment
Damages on death
Law Reform (Miscallenous Provisions) Act 1934 -
Effect of death -
existing cause of action to continue after death.
Except defamation and bereavements damages.
For benefit of estate.
Insurance, payments out do not diminish claim.
Reasonable funeral expenses can be claimed, provided paid for by the state.
Deceased C
Claim for loss ends at death.
If dependants - Fatal Accidents Act 1967.
Damages distributed under term of will.
PR entitled to commence claim if not brought proceedings.
If already compensated cannot.
Can recover ‘let years’ earnings.
Fatal Accidents Act 1976
Estate can claim for pain and suffering, loss of earnings, nursing care, property damage, travel expenses up to date of death.
Provisions for dependant
Have to show;
Had deceased survived would have been able to bring claim.
Loss of dependancy -
-must fall within class of dependants (former married spouses/civil partners, cohabiters who lived together for at least 2 years, parents, children, siblings),
and
must have been actually financially dependant on deceased.
Look at future benefits would have received.
Multilpeir and multilplicand calculations.
Calculation -
Multiplicand -
Deceased net earnings. (25% married with children, 33% if not).
If children no longer dependant (33%).
Perks of job, services to household allowed for.
Multiplier -
Period of loss to dependant.
Work-expectancy or period of dependancy (lesser of the two).
Convert into multiplier using Ogden tables.
Damages for bereavement
Only people who can claim -
wife, husband or civil partner
parents
cohabiting partner who;
-was living with deceased in same household immediately before death and
-had been living in same household for at least two years before and
-was live-in during whole of that period as wife/husband or civil partner.
Currently £15,120.
Split between if more than one.
Fixed no discretion of court allowed.
Funeral expenses -
where paid by dependants.
