general defences and remedies - tort

1) Contributory Negligence

Where D can show that:

• C’s own behaviour was below the standard of the reasonable person;

AND

• This behaviour contributed to C’s loss

Law Reform (Contributory Negligence) Act 1945

Act name?

Brannon v Airtours*

Firstly, where C is partly to blame for the accident happening, c

Froom v Butcher

Secondly, where Cs actions made their injuries or losses worse than they should have been e.g. not wearing a seatbelt.

Outcome

e.g. C’s damages were reduced by 50%*

The judge will decide that a certain percentage of the overall liability belongs to the claimant, and reduce the award of damages accordingly.

Consent (Volenti Non Fit Injuria)

C knows there is a risk of D acting negligently and freely consents to take that risk

Morris v Murray

C was fully aware of the risk of negligence on D’s part but went ahead anyway - defence allowed.

Smith v Baker

The court held that simply knowing of a risk did not amount to consent.

Haynes v Harwood

The court held that consent was not freely given as C felt a moral obligation to try to help people in danger.

Damages

Put C back into their original position prior to D’s negligence (as far as this is possible), so the amount reflects the Claimant’s loss

Special Damages

These can be specifically calculated as they refer to expenses incurred by C between the incident and the judgment, e.g. loss of earnings up to trial, repair costs, etc

Pecuniary losses

These are financial losses such as future medical expenses and loss of earnings.

Pecuniary losses calculated

The calculation is therefore multiplier x multiplicand. Any benefits C receives as a result of his injuries will be deducted.

Non-pecuniary losses

Pain and suffering – using the Judicial Studies Board Guidelines (JSB Guidlines), and the tariff system set out in Kemp & Kemp (a textbook)

• Loss of amenity

• Bereavement – under the Administration of Justice Act 1976 parents can claim for the loss of a child under 18, or a spouse for the loss of a partner

Payment

Damages are either paid as a lump sum or, in the case of larger awards, as a structured settlement under the Damages Act 1996.

Mitigation of Loss

This means he must keep the losses to a reasonable level where possible – Motorways Ltd v Alwahabi.