Tort Law - Remoteness, defences and damages

Question 1

What is the test for remoteness? (1)

Answer 1

The type of damage suffered must have been reasonably foreseeable at the time of the breach, an objective test established by the Privy Council in the Wagon Mound No1 1961.

Question 2

What is the key case for remoteness? (1)

Answer 2

The Wagon Mound No1 1961.

Question 3

What happens once decided the type of damage suffered was reasonably foreseeable? (3)

Answer 3

1. The claimant will succeed even if the precise way the damage occurred was not reasonably foreseeable.
2. The claimant will succeed even if the full extent of the damage was not reasonably foreseeable.
3. The defendant must take the claimant as they find them.

Question 4

What are the two key cases for remoteness and same type of harm? (2)

Answer 4

Bradford V Robinson Rentals 1967 and Tremain V Pike 1969.

Question 5

What is the key case for no need to foresee exact way damage occurs? (1)

Answer 5

Hughes V Lord Advocate 1963.

Question 6

What is the key case for no need to foresee the extent of the damage? (1)

Answer 6

Vacwell Engineering V BDH Chemicals 1971.

Question 7

What case established the thin skull rule? (1)

Answer 7

Smith V Leech Brain 1952.

Question 8

What happens if the claimant’s damage was not reasonably foreseeable? (1)

Answer 8

The claimant will still be able to succeed if they can show that damage of the same ‘type’ was foreseeable.

Question 9

When do defences become relevant? (2)

Answer 9

Once a tort has been established and it is for the defendant to prove a defence on the balance of probabilities.

Question 10

What is volenti non fit injuria? (1)

Answer 10

Consent.

Question 11

What does s149 Road Traffic Act 1988 prevent? (1)

Answer 11

The use of consent by motorists facing claims from their passengers - drunk driver cannot rely on consent to defeat claims from passengers who accept a lift.

Question 12

What does s2 UCTA 1977 apply to? (1)

Answer 12

Defendants acting in course of business cannot restrict liability for death or injury caused by negligence and cannot restrict liability for negligence if it does not pass the reasonableness test.

Question 13

What does s65(1) Consumer Rights Act 2015 prohibit? (1)

Answer 13

Traders dealing with consumers from using contract terms to limit or exclude liability for death or injury through negligence.

Question 14

What does s1 Law Reform Act 1945 define the basis of contributory negligence as? (1)

Answer 14

Where any person suffers damage as the result party of his own fault and partly of other persons, the damages recoverable shall be reduced to such an extent the courts thinks just and equitable having regard to the claimant’s share in the responsibility for the damage.

Question 15

What does the defendant need to show to prove contributory negligence and what is the key case? (2)

Answer 15

The claimant failed to take reasonable steps for their own safety, which contributed to their damage, Jones V Livoc 1952

Question 16

Who are generally protected from contributory negligence and what is the key case? (2)

Answer 16

Rescuers, Baker V T.E Hopkins & Sons Ltd 1959

Question 17

What is illegality also known as? (1)

Answer 17

Ex turpi causa non action - no action may be based on an illegal case.

Question 18

Key case for when illegality was applied? (1)

Answer 18

Greys V Thames Trains 2008.

Question 19

Key case for suggested legal test for illegality? (1)

Answer 19

Patel V Mirza 2016.

Question 20

Key case for illegality as a defence? (1)

Answer 20

Henderson V Dorset Healthcare University NHS Foundation Trust 2020.

Question 21

What is the defence of necessity and when is it used? (2)

Answer 21

A complete defence so if successful the claimant will not receive any damages, usually where the defendant has acted to save limb, life or property. It is rarely argues so it is unclear whether it applies to negligence.

Question 22

What is a key case for necessity? (1)

Answer 22

North V TNT Express UK Ltd 2001.

Question 23

What must the defendant show to prove necessity? (1)

Answer 23

That they acted reasonably and the necessity to act arose without the defendant’s negligence.

Question 24

What are the two principal remedies in tort? (1)

Answer 24

Damages and injunctions.

Question 25

How are damages awarded in tort? (1)

Answer 25

On the compensatory basis - to put the claimant in the position they would have been if the tort had not happened.

Question 26

What can damages be categorised into? (2)

Answer 26

Special damages - provable and quantifiable financial losses such as loss of earnings.
General damages - future financial losses and non-quantifiable losses (PSLA).

Question 27

Under Law Reform Act 1934 what can the estate claim for if someone dies as a result of their tort? (2)

Answer 27

Losses suffered by the deceased up until their death and under Fatal Accidents Act 1976 certain family member may be able to claim compensation if they depended on the deceased and / or bereavement award / funeral expenses.

Question 28

How do we calculate future losses? (2)

Answer 28

Annual expenses and multiply it by the years the loss will continue to be suffered - multiplier approach - but this can cause over compensation so the court tends to award a lump sum to provide the claimant with sufficient from the investment to replace what they have lost.

Question 29

What happens once damages have been calculated? (1)

Answer 29

May be appropriate to make reductions for things such as state benefits, contractual sick pay and redundancy payment.

Question 30

What will not be deducted from the claimant’s compensation? (1)

Answer 30

Insurance pay-outs, ill-health pensions and any sums received by gifts or charity.

Question 31

What may reduce the claimant’s damages further? (1)

Answer 31

Any finding of contributory negligence.