Tort Law: Defences and Remedies

Defences:What is Contributory Negligence and what can it be used for?

• Negligence and Occupiers Liability

• D argues that C is partly liable for their own injuries

• It is a partial defence and therefore reduces damages

Defences:Where was Contributory Negligence set out in?

The Law Reform (Contributory Negligence) 1945- Damages can be amended per Cs own liability for the Injury

Defences:How does Contributory Negligence Operate?

• This works by a percentage reduction

• D does need to show V owed a duty of care

• It is necessary for D to prove causation from Cs actions

Defences:Where was it seen that damages reduced by 25% due to unreasonable method of escape?

(Sayers V Harlow District Council)

Defences:Where was it seen there was a reduction of 15% for not wearing a helmet?

(Froom V Butcher)

Defences:Where was it seen that C is completely liable a reduction of 100% is possible?

Jayers V IMI Ltd

Defences:What is Volenti?

A full defence- when pled damages are reduced to 0

Defences:Is Volenti a Subjective Test?

This is a subjective test; C must understand each of these subjectively

Defences:How does Volenti operate?

• C must know of the exact risks (Does C actually know about it)

• C exercised free choice (not a free choice if they have to work there for work) (Smith V Baker and Sons)

• C voluntarily accepted the risk (ie a Police officer does not accept a risk if their obliged to act) (Haynes V Harwood)

Defences:What are the relevant defences for Occupiers Liability?

· Volenti

· Contributory negligence

· Exclusion clauses (Does not apply to the Occupiers Liability Act 1984)

· Warning notices

Defences:What are the relevant defences for Private Nuisance?

· Statutory Authority

· Prescription

Defences:What are the relevant defences for Rylands V Fletcher?

· Act of God

· Act of a stranger

· Wrongful act of third party

· Statutory authority

Remedies: Compensatory Damages

• Most common form of remedy in tort and aimed at putting C back into the position they would have otherwise been in without suffering the tort

• A claimant should not benefit from claiming damages

Remedies: What are the two types of loss?

Pecuniary: Damages that can be easily calculated in monetary and financial terms.

Non-Pecuniary Loss: Damages that cannot be calculated in purely monetary terms and may include things like pain and suffering or loss of amenity.

Remedies: What are the two types of damages?

Special: Damages that can be calculated right up until the date of the trial or settlement; they are pecuniary in nature

General: These are non-pecuniary losses and are looking forward from the trial or settlement date. They can also include future losses – such as loss of earning or future medical expenses etc. Future earnings/medical expenses are often speculative and require expert medical evidence.

Remedies: Two Types of Settlement (Lump Sum)

· This is the standard award of the court

· A once only award

· Can be unfair or C because their condition may deteriorate further and this does not factor in inflation.

· Can be unfair on D because C’s condition may get better.

Remedies: Two Types of Settlement (Structured Settlement)

· Allowed by the Damages Act 1996 · Parties can agree that all or part of the damages are paid as periodical arrangements an amount per month or year (this is often achieved by the defendant (or more likely) their insurance purchasing an annuity through a finance company).

· Parties can agree for payments to be made for life or for a specific period which can then be reassessed at intervals to ensure that it is maintained.

· This protects C as their compensation remains the same in real terms and protects D’s interests if C condition improves.

This arrangement must be agreed by the parties as the courts have no power to insist on such an order.

Remedies: Duty to Mitigate Loss

· C is entitled to be fully compensated for their damage, but the amount must be reasonable and D is under a duty to mitigate their loss (not deliberately make their losses worse).

· If an old car is being repaired you cannot claim for a brand-new sports car.

· The cost of private health care cannot be recovered if the same treatment is available on the NHS.

Remedies: Injunction

· An injunction is a discretionary remedy (the court can choose whether or not to issue).

· In Coventry V Lawerence the court, esp. Lord Sumption, commented that were the loss or inconvenience is slight damages are a more appropriate remedy.

· If D fails to comply with an injunction they can then be held to be in Contempt of Court which is a criminal offence and holds a punishment of a fine or a period of imprisonment of up to two years.