Workshop 4 - Remoteness, defences and damages
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39 Terms
What is remoteness in negligence, and who bears the burden of proving it?
Remoteness is the legal principle that limits the extent of a defendant's liability after causation has been established. Even if the defendant factually caused the claimant's loss, not all resulting damage is recoverable; the damage must not be too remote from the defendant's breach. This reflects policy concerns about placing reasonable limits on liability. The defendant bears the burden of proving that the claimant's loss is too remote to be recoverable because remoteness, like legal causation, restricts the claimant's right to recover damages for a loss that was factually caused by the defendant.
What is the test of reasonable foreseeability in remoteness?
A claimant can only recover damages if the type of damage suffered was reasonably foreseeable at the time the defendant breached their duty of care. This is an objective test, asking what a reasonable person could have foreseen, not what the defendant actually foresaw. The test was established by the Privy Council in The Wagon Mound (No 1).
What happened in The Wagon Mound (No 1) and what principle did it establish about remoteness?
The defendants negligently spilled oil into Sydney Harbour, which drifted to the claimant's wharf. Two days later, sparks from welding on a nearby ship ignited debris floating on the oil, causing a fire that severely damaged the claimant's property. Although the fire damage was a direct consequence of the oil spill, the court held that the defendants were not liable because the fire damage was not reasonably foreseeable. Experts had advised that the oil required an extremely high ignition point and posed no fire risk. While pollution damage was foreseeable, fire damage was not, making the loss too remote. The case established that a defendant is only liable for types of damage that were reasonably foreseeable at the time of the breach.
What is meant by the requirement that the same "type" of harm must be reasonably foreseeable, and how do Bradford v Robinson Rentals and Tremain v Pike illustrate this?
A claimant can only recover if the defendant ought reasonably to have foreseen the type of damage suffered. The courts may define the relevant type of harm either broadly or narrowly.
In Bradford v Robinson Rentals, the claimant suffered frostbite after being required to drive a van with a broken heater. Although frostbite itself was rare in the UK, the court held that it was foreseeable that the claimant might suffer some form of cold-related injury. The type of harm was defined broadly, so frostbite was recoverable.
In Tremain v Pike, the claimant contracted Weil's disease from contact with rats' urine. While injury from rat bites was foreseeable, illness caused by rat urine contamination was not. The court defined the type of harm narrowly and held that Weil's disease was too remote to be recoverable.
Key point: The defendant need not foresee the exact injury, but must foresee the relevant type of harm. Whether this requirement is satisfied depends on how broadly or narrowly the court defines that type of harm.
How can Bradford v Robinson Rentals and Tremain v Pike be reconciled, and what approach do courts generally take to the foreseeability of the type of harm?
Bradford and Tremain can be reconciled in two ways:
Post-Wagon Mound uncertainty: Both cases were decided shortly after The Wagon Mound (No 1), so there may have been uncertainty about how broadly or narrowly to define the foreseeable type of harm.
Policy considerations: In Bradford, the precautions needed to prevent ordinary cold-related injuries were the same as those needed to prevent frostbite, so liability was imposed. In Tremain, preventing Weil's disease would have required much more extensive and costly precautions (e.g. protective clothing, hygiene systems, and monitoring cuts), which were disproportionate to the risk and different from the measures needed to prevent injuries from direct contact with rats.
General principle: The case law suggests that courts generally take a broad approach when defining the type of foreseeable harm, especially in cases involving personal injury.
Example: In Page v Smith, the claimant suffered psychiatric harm after a road traffic accident. The court held that the relevant foreseeable type of harm was simply personal injury, whether physical or psychiatric. Because some form of personal injury was foreseeable, the claimant could recover for his psychiatric injury.
How do key remoteness cases apply the “same type of harm” test in negligence?
Courts ask whether the type of damage suffered matches a foreseeable type of harm at the time of breach.
In The Wagon Mound (No 1), the claimant suffered fire damage, but only pollution damage was foreseeable. These were not the same type of harm, so the claim failed (too remote).
In Tremain v Pike, the claimant suffered Weil’s disease, but only injury from direct contact with rats was foreseeable. Different type of harm, so too remote.
In Bradford v Robinson Rentals, the claimant suffered frostbite, and cold-related injury was foreseeable. These were treated as the same type of harm, so recovery was allowed.
In Page v Smith, the claimant suffered psychiatric harm, and the court held that personal injury (physical or psychiatric) was the foreseeable type of harm. Same type of harm, so recovery was allowed.
Key idea: If the harm falls within the same general category of foreseeable injury, the claim is not too remote; if it falls outside that category, it is too remote.
Do defendants need to foresee the extent of damage in remoteness, and what does Vacwell Engineering v BDH Chemicals show?
No. Once the type of damage is reasonably foreseeable, the defendant does not need to foresee the extent or severity of that damage.
In Vacwell Engineering v BDH Chemicals, a chemical explosion caused extensive property damage. While only a minor explosion was foreseeable, the court held that property damage caused by an explosion was the relevant foreseeable type of harm. The fact that the explosion was far more severe than expected did not matter.
Key principle: If the type of damage is foreseeable, the defendant is liable for the full extent of the loss, even if the scale of damage is far greater than could have been predicted.
What is the “thin skull” rule in remoteness, and how do Smith v Leech Brain and Lagden v O'Connor illustrate it?
The “thin skull” (or “egg shell skull”) rule means that once the type of damage is reasonably foreseeable, the defendant must take the claimant as they find them. This includes any unusual vulnerability, so the defendant is liable for the full extent of the harm, even if it is far more severe than expected.
In Smith v Leech Brain, the claimant suffered a burn that triggered a pre-existing cancer, leading to death. Although death from cancer was not foreseeable, burns (the type of harm) were foreseeable, so the defendant was liable for the full consequences, including the cancer and death.
The rule also extends to financial vulnerability. In Lagden v O'Connor, the claimant had to hire a replacement car on credit due to lack of funds, increasing the cost. The court held the defendant was liable for the higher costs because it was foreseeable that a claimant might need to incur additional expenses when mitigating loss.
Key principle: Defendants are liable for the full extent of damage flowing from foreseeable harm, even if the claimant’s physical or financial characteristics make the loss worse than expected.
What is the flowchart approach to remoteness in negligence?
Was the damage suffered foreseeable?
Yes → Not too remote: claimant can recover even if the precise way it occurred or full extent was unforeseeable (including thin skull rule situations).
No → go to step 2.
Was damage of the same type foreseeable? (may be defined broadly or narrowly)
Yes → Not too remote: claimant can recover even if precise mechanism or extent was unforeseeable.
No → Too remote: claimant cannot recover for that damage.
What is the defence of consent (volenti non fit injuria) in negligence?
Consent (volenti non fit injuria) is a complete defence in negligence where the claimant is taken to have accepted the risk of harm and therefore cannot sue for the resulting damage.
Defences only become relevant after a tort has been established, and the defendant must prove the defence on the balance of probabilities.
To succeed, the defendant must show that the claimant:
Had capacity to give valid consent
Had full knowledge of the nature and extent of the risk
Agreed to the risk of injury
Acted voluntarily
If all are proven, the defence succeeds and the claimant receives no damages at all.
What is the capacity requirement for the defence of consent (volenti), and how does Reeves v Commissioner of Police for the Metropolis [2000] illustrate it?
The defendant must prove that the claimant had the mental capacity to give valid consent to the risk. This is usually straightforward but may be an issue where the claimant is, for example, a young child or lacks mental capacity.
Reeves v Commissioner of Police for the Metropolis [2000] 1 AC 360:
A prisoner committed suicide while in police custody.
The police knew he was at risk of taking his own life and owed him a duty of care to prevent this.
The House of Lords held that the police could not rely on the defence of consent, because preventing the prisoner from taking his own life was the very duty they owed.
The prisoner did not have the necessary capacity to consent to the risk of taking his own life.
However, the claimant's damages were reduced by 50% for contributory negligence.
What is the knowledge requirement for the defence of consent (volenti), and how does Morris v Murray [1991] illustrate it?
The defendant must prove that the claimant had full knowledge of the nature and extent of the specific risk that materialised. General awareness of danger is not enough. The test is subjective—it asks whether this particular claimant actually understood the risk.
Morris v Murray [1991] 2 QB 6:
The claimant accepted a flight with a drunk pilot.
Although the claimant was also drunk, the court found he was not too intoxicated to understand the risk.
He knowingly accepted the risk that the drunk pilot was likely to fly negligently.
Therefore, the knowledge requirement for consent was satisfied.
What is the agreement to the risk of injury requirement for the defence of consent (volenti), and how do Dann v Hamilton and Morris v Murray illustrate it?
The defendant must prove that the claimant agreed to run the risk of injury caused by the defendant's negligence. This agreement may be express or implied, and the test is subjective.
Key point: Knowledge of a risk is not the same as consenting to it.
Dann v Hamilton [1939] 1 KB 509:
The claimant knowingly accepted a lift from a drunk driver.
The defence of consent failed because simply knowing the driver was drunk did not mean she agreed to waive her right to sue for negligence.
Morris v Murray [1991] 2 QB 6:
The claimant accepted a flight with an obviously drunk pilot.
He had been drinking with the pilot, helped prepare the plane, and flew despite conditions being so bad that flights had been suspended.
The risk was so extreme and obvious (likened to "intermeddling with an unexploded bomb") that the court found he had impliedly agreed to the risk of injury, so the defence succeeded.
Sport: By taking part in a sport, participants impliedly consent to the risks inherent in that sport, but not to risks outside the normal game, such as serious foul play in football.
What is the voluntary agreement requirement for the defence of consent (volenti), and how do Smith v Charles Baker & Sons and Baker v T.E. Hopkins & Sons Ltd illustrate it?
The defendant must prove that the claimant voluntarily agreed to run the risk of injury caused by the defendant's negligence. The claimant must have freely chosen to accept the risk, without any significant constraint.
Smith v Charles Baker & Sons [1891] AC 325:
A worker was injured by a rock falling from a crane.
The House of Lords held that knowledge of a risk is not the same as voluntary acceptance of it.
Employees may continue working because they have little real choice if they want to keep their jobs.
Therefore, the defence of consent is difficult (though not impossible) to establish against employees.
Baker v T.E. Hopkins & Sons Ltd [1959] 1 WLR 966:
Dr Baker entered a well filled with poisonous fumes to rescue trapped workers and died.
Although he had capacity, knowledge, and accepted the risk, his actions were not voluntary in the legal sense.
He acted out of an impulsive desire to save life, not because he freely accepted the risk created by the defendant's negligence.
Therefore, the defence of consent failed.
Exam tip: The defence of consent usually does not apply to rescuers, as the law is reluctant to treat rescue attempts as voluntary acceptance of another person's negligence.
How can statute negate the defence of consent (volenti)?
Certain statutes prevent defendants from relying on consent to avoid liability, meaning that even if a claimant appears to have accepted a risk, the defence may not be available.
1. Road Traffic Act 1988 – s149
Prevents motorists from using consent as a defence against passenger claims.
Example: A drunk driver cannot argue consent where a passenger knowingly accepts a lift and is injured due to the driver's negligence.
2. Unfair Contract Terms Act 1977 – s2
Applies to defendants acting in the course of business (not where the claimant is a consumer).
s2(1): A defendant cannot exclude or limit liability for death or personal injury caused by negligence.
s2(2): Other types of loss may be excluded, but only if the exclusion is reasonable.
s2(3): A person’s knowledge of, or agreement to, a contract term/notice excluding negligence liability does not automatically mean they voluntarily accepted the risk.
3. Consumer Rights Act 2015 – s65
Applies where a trader deals with a consumer.
s65(1): Traders cannot exclude or limit liability for death or personal injury caused by negligence.
Other losses are governed by s62, meaning exclusion clauses must be fair to be binding.
s65(2): A consumer’s awareness of or agreement to a term does not automatically amount to voluntary acceptance of risk.
Key point: Statutes can prevent defendants from relying on consent, especially where there is an imbalance of power (e.g., employees, consumers, or passengers).
What is the defence of contributory negligence in negligence, and when does it apply?
What is the defence of contributory negligence in negligence, and when does it apply?
A: Contributory negligence is a partial defence where the claimant is also at fault and their fault has contributed to the loss or damage suffered.
Defences are only considered after the claimant has established a tort (e.g., duty, breach, causation, damage and remoteness).
The defendant must prove the defence on the balance of probabilities.
Unlike consent (volenti), contributory negligence does not completely remove liability; instead, it usually results in a reduction of damages awarded to the claimant.
Example:
A claimant accepts a lift from a drunk friend. The friend drives negligently and crashes, injuring the claimant. The question is whether the claimant’s decision to get into the car contributed to their injury, allowing the defendant to argue contributory negligence.
What is the legal test for contributory negligence under the Law Reform (Contributory Negligence) Act 1945, and what must the defendant prove?
The basis of contributory negligence is found in s1(1) of the Law Reform (Contributory Negligence) Act 1945. It provides that where damage is caused partly by the claimant’s own fault and partly by another person’s fault, the claim is not defeated, but the damages are reduced by an amount the court considers just and equitable based on the claimant’s responsibility.
To establish contributory negligence, the defendant must prove (Jones v Livox [1952] 2 QB 608):
The claimant failed to take reasonable care for their own safety; and
That failure contributed to the damage suffered.
Key point: Contributory negligence does not prevent the claimant from recovering damages; it only reduces the amount awarded to reflect their share of responsibility.
What is the effect of contributory negligence, and why is it considered a commonly used defence?
A finding of contributory negligence reduces the defendant’s liability to reflect the claimant’s contribution to their own harm.
The claimant’s damages are reduced by a percentage decided by the court that is considered just and equitable, taking into account the claimant’s share of responsibility for the damage.
It is a partial defence because it does not remove the defendant’s liability completely; the claimant still receives damages, but the amount is reduced.
It is the most commonly raised and successful defence because it produces a fair outcome by recognising fault on both sides.
The defence is available not only in negligence claims, but also in some other torts and potentially breach of contract claims.
Key point: Contributory negligence reduces damages rather than defeating the claim entirely.
What is the first stage of the legal test for contributory negligence, and what cases illustrate a failure to take reasonable care for personal safety?
The first requirement is that the claimant failed to take reasonable steps for their own safety.
The claimant must show the same level of care that a reasonable and prudent person would take.
The test is objective—the court considers what a reasonable person would have done in the same circumstances.
Examples:
Owens v Brimmell [1977] QB 859
The claimant was a passenger in a car where the driver had consumed excessive alcohol.
The claimant knew the driver was drunk or had been drinking with the driver knowing they would later be unable to appreciate the danger.
The court held that being drunk is not an excuse for failing to take reasonable care for your own safety.
The claimant was guilty of contributory negligence.
Sayers v Harlow UDC [1958] 1 WLR 623
The claimant became trapped in a toilet cubicle and attempted to escape by standing on an unstable toilet roll holder.
She fell and was injured.
The court held she had failed to take reasonable care for her own safety.
Her damages were reduced by 25%.
Key point: The claimant must act as a reasonable person would, even where their own actions contribute to their injury.
Are claimants always found contributorily negligent when they are injured while trying to avoid danger?
No. Courts allow exceptions where the claimant is faced with an emergency or difficult dilemma. A claimant will not be found contributorily negligent if their actions were reasonable in the circumstances, even if those actions contribute to their injury.
Jones v Boyce (1816) 1 Stark 493
The claimant was a passenger on the defendant’s coach.
Due to the defendant’s negligence, a horse ran away and the claimant reasonably believed the coach was about to overturn.
The claimant jumped from the coach and broke his leg.
The court held there was no contributory negligence because the claimant had acted reasonably to avoid the danger.
The defendant could not criticise the claimant’s attempt to escape a danger that the defendant had created.
Key point: Where a claimant makes a reasonable decision in an emergency situation, they are unlikely to be held contributorily negligent.
How is the standard of care assessed for children in contributory negligence cases, and how does Gough v Thorne [1966] illustrate this?
When the claimant is a child, the court takes their age into account when deciding whether they failed to take reasonable care.
The standard is based on what would be expected of a reasonable child of the same age, not a reasonable adult.
A child can still be found contributorily negligent if they fail to meet the standard expected of a child in their circumstances.
Gough v Thorne [1966] 3 All ER 398
A lorry driver stopped and waved for the 13-year-old claimant to cross the road.
The claimant walked out from behind the lorry without looking and was hit by the defendant’s vehicle.
The court held there was no contributory negligence because she had acted as an ordinary 13-year-old would.
If the claimant had been an adult, she would likely have been contributorily negligent for failing to check for overtaking vehicles.
Key point: Children are judged by the standard of a reasonable child of their age, not by the higher standard expected of adults.
How does contributory negligence apply to rescuers, and what cases illustrate the approach?
Rescuers are generally protected from findings of contributory negligence because the court recognises that they are acting in an emergency situation. The standard of care is adjusted to reflect what a reasonable rescuer would do in those circumstances.
Baker v T.E. Hopkins & Son Ltd [1959] 3 All ER 225
Dr Baker entered a well containing poisonous fumes to rescue trapped workers and died.
Although he knowingly exposed himself to danger, the court found no contributory negligence.
He acted as a reasonable rescuer would in an emergency situation.
The law makes allowances for the difficult circumstances rescuers face.
Exception – Harrison v BRB [1981] 3 All ER 679
The court held that protection for rescuers may not apply where the rescuer negligently helped create the emergency in the first place.
Nature of the duty – St George v Home Office [2008] EWCA Civ 1068
The claimant was a prisoner who suffered a seizure due to drug withdrawal and fell from a bunk bed.
Prison staff knew of the risk of seizures but failed to provide adequate care.
The defendant argued that the claimant’s own role in creating his drug addiction amounted to contributory negligence.
The court rejected this argument because the claimant had warned staff of the risk, and it would not be equitable to reduce his damages.
Key point: Rescuers are usually not contributorily negligent unless they acted unreasonably or helped create the danger themselves. The court considers the emergency circumstances and the defendant’s duty of care.
What is the second stage of the legal test for contributory negligence, and how must the claimant’s fault relate to the damage?
The claimant’s failure to take reasonable care must have contributed to the damage suffered.
The claimant’s fault does not need to cause the accident itself; it only needs to make the resulting injury or loss worse.
If taking reasonable precautions would have reduced or avoided the injury, contributory negligence may be established.
Froom v Butcher [1976] QB 286
The claimant failed to wear a seat belt and was injured in a car accident caused by the defendant’s negligence.
Not wearing a seat belt did not cause the accident, but it increased the severity of the injuries.
The court held that this amounted to contributory negligence.
Examples:
Failing to wear a seat belt.
Failing to wear a cycle/crash helmet or wearing one incorrectly.
Key point: Contributory negligence focuses on whether the claimant’s actions contributed to the harm suffered, not whether they caused the accident.
How is the deduction of damages calculated in cases of contributory negligence?
The court has discretion to decide the amount of reduction to make to the claimant’s damages. The reduction is based on what is just and equitable in all the circumstances.
The claimant’s level of responsibility is expressed as a percentage.
The claimant’s damages are then reduced by that percentage.
The court considers the relative blameworthiness (culpability) of both the claimant and defendant.
A greater reduction is likely where the claimant contributed to both the accident and the injury.
Froom v Butcher [1976] QB 286
Lord Denning suggested:
25% reduction if wearing a seat belt would have avoided injury.
15% reduction if wearing a seat belt would have reduced the injury.
0% reduction if wearing a seat belt would have made no difference.
These figures are only guidelines and can vary depending on the circumstances.
Multiple defendants – Fitzgerald v Lane [1989] AC 328
The court first decides whether the claimant’s damages should be reduced due to contributory negligence.
It then determines how much the defendants should pay as a whole.
Finally, the court decides how liability should be divided between the defendants.
Key point: Contributory negligence reduces damages by a percentage reflecting the claimant’s share of responsibility for the harm.
What are the elements required to establish contributory negligence, and what is the effect if it is proven?
To establish contributory negligence, the defendant must prove:
1. The claimant failed to take reasonable steps for their own safety
The court considers whether the claimant acted as a reasonable person would. Special considerations apply to:
Emergencies or difficult dilemmas – allowances are made where the claimant is forced to make a quick decision in a dangerous situation.
Age of the claimant – children are judged by the standard of a reasonable child of the same age.
Rescuers – rescuers are generally protected because they are acting in emergency circumstances.
Nature of the duty – the circumstances and relationship between the claimant and defendant are considered.
2. The failure contributed to the claimant’s damage
The claimant’s actions must have contributed to their harm by either:
Contributing to the accident that caused the damage; or
Contributing to the extent of the damage/injury suffered.
Effect if established:
The claimant’s damages are reduced by a percentage deduction decided by the court.
The reduction must be just and equitable based on the claimant’s share of responsibility.
Key point: Contributory negligence requires both a failure to take reasonable care and a connection between that failure and the damage suffered.
What is the defence of illegality (ex turpi causa) in tort, and what is its effect if established?
Illegality (also known as ex turpi causa non oritur actio) is a complete defence in tort where the claimant’s claim is based on their own illegal conduct.
The phrase means “no action may be based on an illegal cause.”
The defence prevents a claimant from recovering damages where allowing the claim would undermine the law by rewarding or recognising illegal behaviour.
Defences are only considered after a tort has been established (e.g., duty, breach, causation, damage and remoteness).
The defendant must prove the defence on the balance of probabilities.
Example:
Two friends steal money from a bank.
While escaping, the driver negligently crashes and injures the other friend.
The issue is whether the injured friend should be allowed to claim damages despite being involved in an illegal act.
Key point: If illegality succeeds, it completely prevents the claimant from recovering damages.
Why does the defence of illegality (ex turpi causa) exist in tort?
The defence of illegality exists to prevent claims where allowing compensation would undermine the integrity and consistency of the legal system.
It applies where the claimant was involved in illegal activity connected to their loss.
The aim is to avoid a situation where the law appears to allow and prohibit the same conduct at the same time.
A person should not be able to commit a crime and then recover damages for consequences arising from that criminal conduct.
Allowing such claims could undermine criminal penalties, such as imprisonment or fines, by allowing claimants to seek compensation for those consequences.
Patel v Mirza [2016] UKSC 42
The Supreme Court stated that it would be “offensive to public notions of the fair distribution of resources” for a claimant to receive compensation (often from public funds) for consequences caused by their own criminal conduct.
Key point: Illegality prevents claimants from benefiting from their own wrongdoing and protects the integrity of the legal system.
How was the defence of illegality applied in Gray v Thames Trains [2008] UKHL 33?
Gray v Thames Trains shows that a claimant cannot recover damages for losses that arise from their own criminal conduct.
Facts:
The claimant suffered PTSD after being involved in the Ladbroke Grove rail crash, which was caused by the defendant’s negligence.
Two years later, while still suffering from PTSD, the claimant killed a pedestrian in a road rage incident.
He was convicted of manslaughter and detained indefinitely in a hospital.
The claimant sued the defendant for:
Loss of earnings before and during his detention.
Damages for his detention, conviction, guilt, remorse and damage to reputation.
Held:
The House of Lords accepted the defendant’s argument that the defence of illegality applied.
The claimant could not recover damages for:
Losses arising from his criminal detention and conviction.
Feelings of guilt and remorse caused by his own crime, not the defendant’s negligence.
Allowing the claim would be inconsistent with the criminal sentence imposed by the court.
Key point: A claimant cannot use a civil claim to recover compensation for consequences that result from their own criminal acts.
Why is the scope of the defence of illegality difficult to define, and how does Delaney v Pickett [2011] EWCA Civ 1532 illustrate this?
Although the purpose of the illegality defence is clear, it can be difficult to determine when it should apply.
Delaney v Pickett [2011] EWCA Civ 1532
The claimant was seriously injured in a road traffic accident caused by the defendant’s negligence.
At the time of the accident, the claimant and defendant were transporting a large quantity of cannabis.
The defendant argued that the claimant’s claim should be barred due to illegality.
Held:
The Court of Appeal rejected the illegality defence.
The claimant was allowed to succeed in his negligence claim.
The illegal activity (transporting cannabis) did not cause the accident and was only incidental to the defendant’s negligent driving.
Key point: Illegality will not automatically prevent recovery just because the claimant was involved in illegal conduct; the illegal act must be sufficiently connected to the claim.
What legal test for the defence of illegality was suggested in Patel v Mirza [2016] UKSC 42?
Patel v Mirza [2016] UKSC 42 provided greater clarity on how the illegality defence should be applied.
The Supreme Court confirmed that the same principles apply whether illegality is raised in claims involving:
Tort
Breach of contract
Unjust enrichment
Facts:
Mr Patel paid Mr Mirza a large sum of money to place bets on share prices using expected inside information.
The agreement involved illegal insider dealing.
The insider information was never received, so the transaction did not take place.
Mr Patel sought the return of his money.
Mr Mirza argued that illegality prevented Mr Patel from recovering because he was involved in an illegal agreement.
Held:
The Supreme Court unanimously held that the defence of illegality did not apply.
Mr Patel was allowed to recover his money.
Key point: Patel v Mirza moved away from a rigid approach to illegality and introduced a more flexible approach based on protecting the integrity of the legal system.
What is the legal test for the defence of illegality following Patel v Mirza [2016] UKSC 42?
The defence of illegality is assessed using a two-step process.
Step 1: Did the claimant commit an illegal (or possibly grossly immoral) act when they suffered the loss?
The claimant must have been involved in illegal conduct at the time of the loss caused by the defendant.
If no illegal act occurred, the defence does not apply.
If an illegal act did occur, move to Step 2.
Example: Ashton v Turner [1981] QB 137
The claimant and defendant were escaping from a burglary when the claimant was injured by the defendant’s negligent driving.
The illegality defence succeeded because the claimant was involved in criminal activity connected to the injury.
Step 2: Apply the Patel v Mirza test
The court asks:
“Would allowing recovery for something illegal produce inconsistency and disharmony in the law, damaging the integrity of the legal system?”
The court considers three factors (the ‘trio of necessary conditions’):
(a) Purpose of the prohibition
What is the purpose of the rule/law that was broken?
Would refusing the claim further that purpose?
(b) Other public policy considerations
Would allowing or refusing the claim affect other important public policies?
(c) Proportionality
Is denying the claim a proportionate response to the illegality?
Factors relevant to proportionality include:
The seriousness of the illegal conduct.
The centrality of the illegality to the claim (whether there is a causal link).
Whether the illegal act was intentional.
Whether there is a significant difference in the parties’ relative blameworthiness.
Key point: The court must balance these factors to decide whether applying the illegality defence is necessary to protect the integrity of the legal system.
How was the defence of illegality applied in Henderson v Dorset Healthcare University NHS Foundation Trust [2020] UKSC 43, and how does it relate to Patel v Mirza?
Henderson confirmed how the Patel v Mirza [2016] UKSC 42 approach applies to tort claims and confirmed that Gray v Thames Trains remains good law.
Facts:
The claimant was a mentally ill patient under the care of an NHS team.
Due to a psychotic episode, she killed her mother and was convicted of manslaughter.
The NHS admitted negligence in failing to return her to hospital and accepted that, but for the breach of duty, the killing would not have occurred.
The claimant sued for damages including:
Loss of liberty due to detention.
Loss of inheritance.
Held:
The Supreme Court held that the defence of illegality applied.
The claimant could not recover losses that were a consequence of her own criminal act.
Allowing the claim would create inconsistency between criminal law and tort law.
The court confirmed Gray v Thames Trains was compatible with the Patel approach.
Simplified Patel test after Henderson:
1. What is the purpose of the prohibition breached, and would denying the claim enhance that purpose?
Relevant policies supporting illegality included:
Avoiding inconsistency in the legal system (not compensating someone for the consequences of their crime).
Proper allocation of public resources (damages would come from the NHS budget).
The close connection between the crime and the tort claim.
Deterring criminal behaviour.
2. Are there other public policies that would be weakened by denying the claim?
Relevant factors against applying illegality included:
Upholding duties of care.
Providing compensation for victims of torts.
3. Would denying the claim be a proportionate response?
The court considered:
Seriousness of the conduct: unlawful killing was extremely serious.
Centrality of the illegality: the crime was the direct cause of the losses claimed.
Intent: the claimant had murderous intent.
Relative wrongdoing: although the NHS was negligent, the claimant’s criminal responsibility was far greater.
Denying the claim was therefore proportionate.
Other important illegality cases after Patel:
Pitts v Hunt [1991] 1 QB 24
The claimant encouraged an unlicensed, intoxicated defendant to drive recklessly while riding as a passenger on a motorbike.
The claimant was injured in an accident.
The illegality defence succeeded because the injury was directly caused by the illegal activity.
Without the illegal behaviour, the accident would not have occurred.
Delaney v Pickett [2011] EWCA Civ 1532
The claimant was injured in a negligent driving accident while transporting cannabis.
The illegality defence failed because transporting drugs did not cause the accident; it was only the context in which it happened.
The accident could have occurred even without the illegal activity.
Key point: The importance of the illegal act depends on its centrality and causal connection to the tort:
Pitts: Illegal act caused the harm → illegality applies.
Delaney: Illegal act was only incidental/background → illegality does not apply.
What remedies are available to a claimant who succeeds in a tort claim, and which remedy is most common?
The two main remedies available in tort are:
1. Damages
Damages are an award of money given to compensate the claimant for the harm suffered.
They are the most common remedy in tort claims.
The purpose is generally to put the claimant back in the position they would have been in if the tort had not occurred.
2. Injunctions
An injunction is a court order requiring the defendant to do something or preventing them from doing something.
They are rarely granted and are only suitable in certain types of cases.
They are particularly relevant in areas such as land-based torts.
Key point: While both damages and injunctions are available remedies in tort, damages are by far the most common.
What are compensatory damages in tort, and what is their purpose?
Compensatory damages are damages awarded to compensate the claimant for the harm they have suffered as a result of the defendant’s tort.
They are the main remedy sought in tort claims.
The aim is to put the claimant in the position they would have been in if the defendant’s tort had not occurred.
They are backwards-looking, focusing on restoring the claimant to their position before the tort happened.
The compensation is provided through a financial award, as far as money can achieve this.
Key definition:
Compensatory damages = damages awarded to compensate the claimant for the harm they have suffered.
Key point: The vast majority of damages awarded in tort claims are compensatory damages.
What are the two categories of compensatory damages in tort, and what losses does each cover?
Compensatory damages are divided into:
1. Special damages
Cover specific, provable and quantifiable financial losses that have already occurred up to the date of trial.
The claimant can calculate the exact amount of loss.
Examples:
Loss of earnings before trial.
Repair costs for damaged property (e.g., a car).
Medical expenses already incurred before trial.
2. General damages
Cover:
Future financial losses that cannot yet be precisely calculated.
Non-quantifiable losses, such as pain and suffering.
Examples:
Pain, suffering and loss of amenity (PSLA).
Future loss of earnings.
Future medical expenses.
Future costs of adapting a house.
Example: Car accident claim
Special damages:
✅ Loss of earnings up to trial.
✅ Cost of repairing the car.
✅ Medical expenses incurred before trial.
General damages:
✅ Compensation for pain and suffering.
✅ Loss of earnings after trial.
✅ Future house adaptation costs.
✅ Future medical expenses.
Key point:
Special damages = past, specific financial losses that can be calculated.
General damages = future losses and non-financial harm that cannot be precisely measured.
What is the Pain, Suffering and Loss of Amenity (PSLA) award in tort, and what factors affect its value?
PSLA is an element of general damages that compensates a claimant for the non-financial effects of an injury.
It has two parts:
1. Pain and suffering
Compensates the claimant for the physical pain and mental suffering caused by the injury.
2. Loss of amenity
Compensates the claimant for the impact of the injury on their quality of life and ability to enjoy activities.
The amount depends on:
How active the claimant was before the injury.
What activities they can no longer do because of the injury.
Example:
A claimant who can no longer swim, walk, or take part in hobbies may receive compensation for loss of amenity.
Valuing PSLA:
It is difficult to place a precise monetary value on injuries and their effects.
Courts use previous case law as guidance when deciding appropriate compensation amounts.
A key source of reference is Kemp and Kemp.
Key point: PSLA compensates for the human impact of injury, covering both suffering and the loss of enjoyment of life.
How are future losses calculated when awarding damages in tort?
The method depends on whether the future loss is a one-off expense or a continuing loss.
1. One-off future expenses
The court awards a lump sum to cover the expected cost.
Example:
Cost of adapting the claimant’s home.
2. Continuing future losses
Used for ongoing costs such as:
Future loss of earnings.
Medical treatment expenses.
Care costs.
The court uses the multiplier/multiplicand approach:
Multiplicand = the annual value of the loss (e.g., yearly lost earnings).
Multiplier = the number of years the loss is expected to continue.
Why not simply use life expectancy or years remaining at work?
This would lead to over-compensation.
Damages aim to compensate, not put the claimant in a better financial position.
The court assumes the lump sum will be invested, producing income to replace the lost earnings or expenses.
Therefore, the multiplier must be reduced to account for investment returns.
Key point: Future losses are calculated using the multiplier/multiplicand approach, adjusted to ensure the claimant receives fair compensation without being over-compensated.
What deductions may be made from a claimant’s damages award in tort, and why?
After damages have been calculated, certain payments may be deducted to prevent the claimant from receiving double compensation for the same loss.
Possible deductions include:
1. State benefits
Benefits received because of the injury may be deducted.
This can include benefits relating to:
Lost earnings.
Cost of care.
Loss of mobility.
The defendant pays the deducted amount back to the State.
2. Contractual sick pay
Sick pay received by the claimant due to their injury may be deducted.
3. Redundancy payments
A redundancy payment may be deducted where the redundancy occurred because of the injury.
Further reduction:
The final damages award may also be reduced if the claimant is found to have been contributorily negligent.
Payments that are not deducted:
❌ Insurance payouts.
❌ Ill-health pensions.
❌ Gifts or charitable payments.
Key point: Deductions ensure the claimant is compensated fairly but does not recover more than once for the same loss.
What happens to a damages claim when the claimant dies as a result of a tort?
When a claimant dies due to a tort, there are two main possible claims:
1. Law Reform (Miscellaneous Provisions) Act 1934 – Estate’s claim
The deceased’s estate (legal representatives) can claim for losses suffered by the deceased before death.
The claim is calculated in the same way as a normal personal injury claim.
It can include:
Financial losses.
Non-financial losses (e.g., pain, suffering and loss of amenity).
No claim can be made for losses after the date of death (s1(2)(a)).
There is no claim for the death itself or for loss of life expectancy.
Example:
An employee is negligently injured at work and suffers for two weeks before dying.
Their estate can claim for those two weeks of pain, suffering and loss of amenity.
2. Fatal Accidents Act 1976 – Dependants’ claims
Allows the deceased’s dependants to claim for losses caused by the death.
A dependant is someone who relied financially on the deceased.
Examples of claims:
Loss of financial dependency (e.g., loss of wages previously provided by the deceased).
Bereavement damages (a fixed statutory amount under s1A).
Funeral expenses if paid by dependants.
Who counts as a dependant?
Close blood relatives.
Relatives by marriage.
A person who lived with the deceased as a partner for at least two years (s1(3)).
Calculation of damages:
Past losses are calculated specifically.
Future losses are calculated using a lump sum or multiplier/multiplicand approach.
Multipliers are usually lower than in personal injury cases because there is greater uncertainty when predicting the future needs of dependants.
Example:
An employee is negligently injured at work, suffers for two weeks, and then dies. Their husband and child depended on their income.
Claims available:
✅ Estate claim for the employee’s pain, suffering and loss of amenity before death.
✅ Husband and child can claim for loss of financial dependency.
✅ Eligible spouse/partner may claim bereavement damages.
✅ Dependants may recover funeral expenses.
Key point:
Law Reform Act 1934 = the deceased’s own losses before death.
Fatal Accidents Act 1976 = losses suffered by dependants because of the death.