Tort 4: Remoteness, Defences and Remedies

Negligence sequence

Loss/ damage, duty, breach, causation, remoteness, defences

Test for remoteness

Was the damage suffered reasonably foreseeable? Was damage of the same type foreseeable?

Defences

Consent, Illegality, Contributory Negligence, Necessity

Proving Consent

Defence must show that claimant had capacity to give valid consent, agreed to risk, had full knowledge of nature and extent of risks and agreed voluntarily

Illegality

Did the claimant commit an illegal or grossly immoral act?

Proving illegality

Patel v Mirza: underlying purpose of the prohibition has been transgressed and whether that purpose will be enhanced by denial of claim, any other relevant public policy and whether denial of claim would be proportionate response

Proving contributory negligence

Prove that defendant failed to take reasonable steps for their own safety and this failure contributed to the claimant's damage

Special considerations for contributory negligence

Emergencies, age of claimant, rescuers and nature of duty

Proving necessity

Applicable where the defendant acted to save life, limb or property

Remedies

Most common are damages and injunctions, they are awarded on a compensatory basis

Compensatory basis

to put the claimant in the position they would have been in had the tort not happened

Types of damages

Special and General

Law Reform Act 1934

Estate can claim for losses suffered by the deceased up to the date of death

Fatal Accidents Act 1976

Dependant family members may be able to claim compensation generally, for funeral expenses or bereavement award

Remoteness

Damage must not be too remote from the defendant's breach

The Wagon Mound

Objective test for forseeability

Same type of harm

Claimant can only recover if defendant ought to have foreseen the type of damage suffered

Bradford v Robinson Rentals

Only the general type of harm needs to be foreseeable

Tremain v Pike

Type of harm must reasonably foreseeable

Page v Smith

Court can take a broad approach to foreseeability of damage

Hughes v Lord Advocate

It is not necessary to foresee the precise way in which the harm is caused, provided the type of harm is reasonably foreseeable

Vacwell v BDH Chemicals

If type of damage is foreseeable, regardless of extent, defendant is still liable

"Thin Skull" rule

The defendant must take their victim as they find them even if their damage aggravated the claimant's own weakness

Smith v Leech Brain

Case for thin skull rule

Thin Skull rule regarding finances

Applies if damage has been aggravated by claimants own impecuniosity ie lack of monetary funds

Lagden v O'Connor

Think skull rule for finances

Reeves v Commissioner of Police for the Metropolis

Claimant did not have capacity to give valid consent for risks

Dann v Hamilton

Defendant did not agree to risk of injury simply by getting into car with drunk driver

Morris v Murray

Claimant had full knowledge of nature and extent of risks so consent defence worked

Smith v Charles Baker

consent must be given voluntarily

s 149 of the Road Traffic Act

Prevents use of consent by motorists facing claims from their passengers

s 2(1) of the Unfair Contract Terms Act 1977

Excludes/ restricts liability for death or personal injuries resulting from negligence in business

s 2(3) of the Unfair Contract Terms Act 1977

A contract term purporting to exclude or restrict liability for negligence will not amount to voluntary acceptance of risk

S 1(1) Law Reform Act 1945

Claim will be reduced where a person suffers damage as a result partly at their own fault and partly at the fault of another

Jones v Livox

case for contributory negligence

Sayers v Harlow

Claimant was liable for 25% contributory negligence

Jones v Boyce

Allowances made for claimants in an emergency or difficult dilemma regarding contributory negligence

Gough v Thorns

Court will consider the age of a child when determining contributory negligence

Baker v T E Hopkins

Rescuers generally protected from contributory negligence

Harrison v BRB

Rescuers are immune from contributory negligence unless they caused the accident

St George v Home Office

Nature of duty is relevant to contributory negligence

Froom v Butcher

Claimants fault contributed to damage suffered

Clunis v Camden and Islington HA

Illegality can be used as a defence by defendants

Pitts v Hunt

Defence of illegality successful as claimant's injury was caused directly by an illegal act

North v TNT Express

Defence of necessity failed as defendant should not reasonably have feared imminent attack and was not acting to prevent death or serious injury

Esso Petroleum v Southport Corp

Defence of necessity is successful if defendant acts in an emergency

Injunction

order to act or preventing the defendant from acting in a certain way

Damages

A sum of money paid in compensation for loss or injury in a civil case

General damages

cover future financial losses that cannot be specifically proven and non-quantifiable losses such as physical injury

Special damages

Covers specifically provable and quantifiable losses from time of incident to time of trial

Pain, suffering and loss of amenity award

Single lump sum overall

Calculation for future losses

complicated and difficult process, most basic approach is multiplier/multiplicand approach

Deductions from damages

State benefits, contractual sick pay, redundancy payment