Week 7 Flashcards
Remedies and Defences
What’s the principal remedy (solution) for negligence?
Damages.
What’s another word for damages?
Compensation.
What does compensation arise from?
Economic losses arising from physical injury or damage to property.
In what scenario can pure economic loss be compensated for?
When there is a special relationship between the claimant and defendant
The defendant has to be a professional person advising a known person who they know will be relying on their advice.
This allows for a duty of care thus a route to compensation.
What must damages be, in order to be recoverable by the claimant from the defendant?
Damages must be reasonably foreseeable.
What does it mean when damages are reasonably foreseeable?
A loss, damages or type of injury that a reasonable person would’ve foreseen.
What’s an example of a case where damage wasn’t reasonably foreseeable
The Wagon Mound case (1961)
- Defendant’s negligence oil spilled into the claimant’s wharf, then oil caught fire causing serious damage to the wharf
Bourhill V Young
What’s the egg-shell-skull principle?
The severity of the damage or injury suffered is irrelevant - “you take your victim as you find them”.
Only if it’s reasonably foreseeable then comes the liability for the consequences.
What’re the 3 categories of defence
- Contributory negligence - Partial defence
- Volenti Non Fit Injuria - Complete or outright
- Exclusion Clauses - Complete or outright
What’s Partial Defence?
Reduces compensation for the damages payable
What’s complete/outright defence?
Defendant doesn’t have to pay compensation.
What’s contributory negligence
When a claimant’s own negligence contributes to some of his injuries.
What’s an case example of contributory negligence?
Sayer V Harlow DC (1958)
- Woman trapped in public toilet fell and injured herself trying to climb out
What’s Volenti?
If someone freely consents to risk, they cannot sue if they get hurt.
Name an example of Volenti?
- Dangerous sports
- Agreeing to a lift from a drunk person
What’s a case example of Volenti?
ICI V Shatwell (1964)
- Two certified and experienced brothers employed by ICI got injured testing explosives without observing strict safety rules.
What’s an exclusion clause?
It’s a clause (must be valid) that constitutes a viable and complete defence against an action for negligence.
Under UCTA, it must be reasonable and fair. - a term that causes death or personal injury is invalid.
What happened in the Hedley Byrne V Heller & Partners case
- EasiPower wanted credit from Hedley Byrne
- Hedley Byrne got a positive credit reference from the bank
- Heldey Byrne went and gave EasiPower that credit
- EasiPower went bust even though Hedley Byrne got a good credit reference from the bank
- Hedley Byrne sued the bank for negligence
- The bank had an exclusion clause for this.
