Unit 3 Flashcards
Negligence: Causation of Damage and Defences
Explain the basic test for establishing factual causation.
The basic test for establishing factual causation in negligence claims is
the “but for” test. This means that the claimant must demonstrate that
but for the defendant’s actions (or omissions), the harm would not have
occurred. If it can be shown that the injury would not have happened
without the defendant’s conduct, factual causation is established.
What is the effect of the Civil Liability (Contribution) Act 1978?
The Civil Liability (Contribution) Act 1978 allows for parties who are
jointly liable for a claimant’s loss to seek a contribution from each
other based on their respective degrees of fault. This means that if
multiple defendants are found liable for the same damage, one
defendant can recover part of the damages paid to the claimant from
the other defendants. The Act aims to ensure that the burden of
compensation is distributed fairly among those responsible for the
harm. Additionally, it clarifies that contribution claims can be made
even if the parties are not found to be equally at fault, allowing for
proportional sharing of liability
The test for remoteness of damage is one of reasonable
foreseeability. In relation to this, explain the effect of the ‘eggshell
skull’ rule.
The “eggshell skull” rule, also known as the “take your victim as you
find him” principle, holds that a defendant is fully liable for the harm
caused to a claimant, even if the extent of the injury is more severe
than what could have been reasonably foreseen. This means that if
a defendant’s actions cause injury to a claimant who has a pre-
existing condition or vulnerability, the defendant is still responsible
for all consequences of their actions, regardless of the claimant’s
susceptibility. The rule emphasizes that defendants must bear the
consequences of their actions without regard to the claimant’s
unique characteristics.
List the three main ways in which foreseeability of harm arises in a
negligence action. Your answer should link foreseeability of harm to
each of the elements which a claimant needs to establish in order to
succeed in a negligence claim.
In a negligence action, foreseeability of harm arises in three main
ways, each linked to the elements a claimant must establish:
- Duty of Care: Foreseeability is used to determine whether a duty
of care exists between the defendant and the claimant. The law
assesses whether the defendant could reasonably foresee that their
actions might cause harm to someone in the claimant’s position. - Breach of Duty: When evaluating whether the defendant breached
their duty of care, foreseeability helps establish what a reasonable
person would have anticipated as a potential risk. If the harm was
foreseeable, the defendant is expected to take appropriate
precautions to prevent it. - Causation: In establishing factual causation, the claimant must
show that the harm suffered was a foreseeable consequence of the
defendant’s conduct. If the harm is not something that a reasonable
person would have foreseen as a likely outcome, the defendant may
not be held liable
Describe the effect of the Law Reform (Contributory
Negligence) Act 1945 s1(1). (
The Law Reform (Contributory Negligence) Act 1945, Section 1(1),
addresses situations where a claimant may have contributed to
their own harm through their negligent actions. It allows for the
reduction of damages awarded to the claimant in proportion to their
degree of fault in causing the injury or loss. This means that if a
claimant is found to be partly responsible for their injuries, the
compensation they receive will be decreased based on their level of
contributory negligence. The aim of this legislation is to create a
fairer allocation of liability between the defendant and the claimant.
What kind of behavior would amount to contributory negligence?
Contributory negligence occurs when a claimant fails to take
reasonable care for their own safety, which contributes to the harm
they suffer. This can include actions such as ignoring safety
warnings, engaging in risky behaviour, or not taking appropriate
precautions that a reasonable person would typically undertake in
similar circumstances.
What is the meaning and effect of the defence of volenti non fit
injuria?
The defence of ‘volenti non fit injuria’ means “to a willing person,
injury is not done,” which signifies that a person who voluntarily
accepts a risk cannot claim for any resulting injury. This defence
applies when the claimant has full knowledge of the risk involved
and freely consents to undertake it, effectively absolving the
defendant from liability for negligence. If successfully invoked, it
can completely bar the claimant from recovering damages, as it
indicates that they accepted the potential consequences of their
actions. This principle is often relevant in activities where inherent
risks are well known, such as contact sports or extreme activities.
Voluntaryy
List the two requirements for the defence of volenti to apply.
The two requirements for the defence of ‘volenti non fit injuria’ to
apply are:
1. Knowledge of the Risk: The claimant must have full awareness
of the risks involved in the activity or situation that caused the
injury.
2. Voluntary Acceptance: The claimant must voluntarily consent
to take on that risk, indicating that they are aware of the danger
and still choose to proceed
What is the basis of the defence of ex turpi causa non oritur actio?
The defence of ‘ex turpi causa non oritur actio’ is based on the principle
that a claimant cannot pursue a legal remedy if it arises in connection
with their own illegal or immoral act. Essentially, if the claimant’s cause of
action is founded on their own wrongdoing, the courts will not assist them
in claiming damages related to that act.
What is the effect of s149 Road Traffic Act 1988?
Section 149 of the Road Traffic Act 1988 establishes that a person driving a motor vehicle must hold valid insurance or a security policy to cover third-party liability for injury or damage caused to others. This section ensures that victims of road traffic accidents can claim compensation for injuries or damages regardless of the fault of the driver, thereby protecting the rights of injured parties and promoting road safety. It also means that insurance companies are liable to cover claims arising from accidents involving insured vehicles, regardless of the insured party’s negligence.
