Defences & remedies in tort

Contributory negligence

• Was originally a full defence but changed in 1945 by Law Reform - now it’s only a partial defence

• Applied when C has contributed to their own harm as well as the D, therefore reducing damages

Sayers v Harlow

D contributed to injuries by standing on toilet roller to escape public toilet

Froom v Butcher

C lost 25% of damages because they weren’t wearing a seatbelt at the time of the car crash

Woods v Davidson

• D negligently ran over C who was drunk & tried to use CN defence however this failed because the fact the C was drunk was irrelevant - they still would’ve been ran over if sober

Consent (volenti)

• When the C voluntarily assumes the risk of harm

• Full defence & if successful C will receive no damages unlike CN which is a partial defence

What 2 points must be met for consent?

• C must have knowledge of the precise risk involved

• C must consent to the risk freely - won’t succeed where C has no choice but to consent, must be voluntarily

Morris v Murray

• C had been drinking with D & went for a flight in his plane which the D crashed & C died as a result of

• D used consent defence as C had been aware of risk of getting into plane with drunken pilot

Smith v Baker

• C had done all he could in complaining about risk of crane moving rocks above his head & had no choice but to continue to work - didn’t freely consent to risk

Consent in sport

• Defence will succeed where injuries fall within the normal activities of the sport

• Won’t succeed if injuries are result of conduct that falls outside normal activities of the sport

Simms v Leigh RFC

Rugby player injured when tackled & hit a wall however the tackle was within all rules of rugby so there was consent

Condon v Basi

Footballer liable for breaking player’s leg in foul tackle as there was no consent to foul play

What are damages?

• Financial compensation rewarded for the C’s injury, loss or damage

• Aim is to put the C back in the position they were in before their rights were breached

• Amount is based on the extent of C’s loss or injury, not the degree of negligence or D’s ability to pay

White v Jones

A mistake in a will meant 2 daughters lost out on 9k so the courts awarded them it

What are special damages?

• All of the C’s losses from the incident until the trial that are quantifiable

• Eg property damage, loss of earnings, medical expenses

• Only expenses considered reasonable by the court are recoverable as C has a duty to mitigate his loss

Harris v Brights Asphalt

C claimed the cost of private medical care even though he could’ve used NHS

Cunningham v Harrison

C said he needed a housekeeper & 2 nurses to live in his home to look after him however the courts denied as unreasonable

What are general damages?

• All damages from the trial to the future that are aren’t necessarily quantifiable

• 2 subheadings - pecuniary & non-pecuniary

What are pecuniary damages?

• Future financial losses after the trial eg loss of earnings & costs of future health care/treatments

• Calculated by using the multiplicand & multiplier system

What is the multiplicand?

Annual sum of the C’s annual loss of net earnings & any other expenses

What is the multiplier system?

• An estimate of the number of years for which the C’s disability will last before recovery/death

• Figure limited to about 16-18

What are non-pecuniary damages?

• Non-financial losses that can’t be quantified eg pain, suffering & emotional distress

Where is the quantum of damages in personal injury contained?

Kemp & Kemp: Quantum of damages book

What are equitable remedies?

Remedies that operate when damages are an inadequate remedy of justice

What are injunctions?

Orders that put a stop to a tort eg private nuisance

What is a prohibitory injunction?

An order that stops D from carrying out a particular act eg stopping a neighbour from tresspassing on your land

What is a mandatory injunction?

• An order that requires D to carry out a particular act eg requiring a neighbour to remove a fence

• Can be perpetual (final) or interim (temporary)