Week 17: Defence and Remedies Flashcards
What is contributory negligence in law?
Contributory negligence is a partial defence, not a complete one, which reduces the claimant’s damages if they are partly at fault for their own harm.
What is the effect of contributory negligence under the Law Reform (Contributory Negligence) Act 1945?
Under s1(1) of the 1945 Act, if someone suffers damage partly due to their own fault, their damages are reduced to the extent the court considers just and equitable.
What happened in Sayers v Harlow UDC [1958]?
In Sayers v Harlow UDC [1958], a woman trapped in a public toilet tried to escape and injured herself; she was partly at fault, so her damages were reduced for contributory negligence.
What did the court find in Pidgeon v Doncaster Health Authority [2002]?
In Pidgeon v Doncaster Health Authority [2002], the claimant’s failure to attend medical appointments contributed to the harm suffered, leading to a reduction in damages for contributory negligence.
What is the defence of volenti non fit injuria?
The defence of volenti non fit injuria applies when a person has knowingly and voluntarily accepted the risk of injury — it hinges on consent.
What was held in Nettleship v Weston [1971]?
In Nettleship v Weston [1971], the court held that mere knowledge of risk is not enough; there must be clear agreement to waive the right to sue for negligence, either expressly or impliedly.
How did Morris v Murray [1991] apply the volenti defence?
In Morris v Murray [1991], the claimant voluntarily flew with a drunk pilot and was seriously injured; the court found he had accepted the risk, so volenti applied.
What happened in Titchener v British Railways Board (1984)?
In Titchener v British Railways Board (1984), a teenager hit by a train while trespassing was found to have accepted the risk of entering the railway, so volenti applied.
How does s2(3) of the Occupiers’ Liability (Scotland) Act 1960 relate to volenti?
Section 2(3) of the Occupiers’ Liability (Scotland) Act 1960 preserves the common law defence of volenti non fit injuria, allowing occupiers to argue consent to risk in certain cases.
What is the defence of ex turpi causa non oritur actio?
The defence of ex turpi causa non oritur actio means no action can arise from an illegal act — a claimant cannot recover damages if the harm arose from their own criminal activity.
How does the Animals (Scotland) Act 1987, s4(2) relate to ex turpi causa?
Section 4(2) of the Animals (Scotland) Act 1987 provides that injury to an animal cannot be defended if it occurred during or in furtherance of criminal activity.
What happened in Pitts v Hunt [1991]?
In Pitts v Hunt [1991], a passenger injured while participating in illegal motorcycle racing was barred from claiming damages — ex turpi causa applied.
What is the defence of damnum fatale?
The defence of damnum fatale refers to a harm caused by an act of God — unforeseeable, natural events beyond human control, like rare floods or fires.
What did the court hold in Caledonian Railway Co v Greenock Corporation (1917)?
In Caledonian Railway Co v Greenock Corp, it was held that just because an event is rare, does not mean it is damnum fatale — foreseeability still matters.
What is the defence of necessity in delict?
The defence of necessity applies when someone causes harm to prevent greater harm, and their actions were reasonable in the circumstances.
What did Cope v Sharpe (No 2) [1912] say about necessity?
In Cope v Sharpe, the court said necessity applies where a reasonable person would perceive danger, and the actions taken were reasonable to prevent a greater injury
How was necessity used in Southport Corporation v Esso Petroleum [1953]?
In Southport v Esso, oil was dumped to save a ship during a storm — the court accepted this as necessity, even though it caused environmental damage.
What is the defence of res judicata?
Res judicata means a matter already decided by a competent court between the same parties, on the same subject matter, and same legal basis (media concludendi).
Why does Scots law use the res judicata defence?
Scots law uses res judicata to prevent multiple inconsistent judgments, reduce litigation, and avoid re-litigating the same dispute.
What was the issue in Matuszczyk v National Coal Board (1955)?
In Matuszczyk v NCB, a claim was barred due to res judicata, as the same issue had already been litigated under common law before being re-brought under statute.
What is prescription in Scots law?
Under the Prescription and Limitation (Scotland) Act 1973, prescription extinguishes an obligation (e.g., to make reparation) if it has subsisted for five years without a relevant claim or acknowledgment (s6(1)).
Are all obligations subject to prescription?
No, obligations for personal injury or death are imprescriptible, meaning they do not prescribe under the 1973 Act.
What is limitation in Scots law?
imitation under s17 of the 1973 Act requires that personal injury claims (where there is no death) are raised within three years, unless the court grants an extension (s19A) or the case involves historic abuse (s17A).
How are the prescription and limitation periods calculated?
Both the five-year (prescription) and three-year (limitation) periods are calculated from when the pursuer became aware (or could reasonably have been aware) of the relevant facts.
What is a declarator in Scots law?
A declarator is a court action asking the court to declare a person’s legal rights or status, such as rights in property, servitude, or status — not for general legal opinions (G Watson, Bell’s Dictionary).
What is an interdict in Scots law?
An interdict is a court order requiring a person to stop or refrain from doing something; it can be interim or permanent but not retrospective (e.g., Webster v Lord Advocate).
What are the key requirements of an interdict?
An interdict must be clear, precise, and narrowly drawn; breach can result in a fine or imprisonment (McMurdo v Ferguson).
What is the purpose of damages in Scots delict law?
The goal of damages is to put the pursuer back in the position they were in before the harm occurred — it is compensatory, not punitive.
What is solatium in Scots law?
Solatium refers to damages for non-financial loss, like pain, suffering, impairment, or diminished life expectancy (Damages (Scotland) Act 2011, s1).
What is patrimonial loss in Scots delict law?
Patrimonial loss includes financial losses, such as lost earnings (past and future), or the cost of services rendered by/to the victim (AOJA 1982 ss8–9).
What happens if the victim dies?
If the victim dies, the executor may claim under s2 of the Damages (Scotland) Act 2011 if death wasn’t instant; relatives may claim under s3 if death was instant, including for emotional harm, support, and funeral expenses.
What emotional damages can relatives claim after a death?
Under s4(3)(b) of the 2011 Act, immediate family can claim for distress, grief, and loss of society/guidance, arising from the victim’s death.
What’s the key summary of remedies and defences in delict?
In delict, pursuers have access to multiple remedies (declarator, interdict, damages), while defenders may raise several defences, noting that contributory negligence is partial, not complete.
