Remoteness, defences, and remedies Flashcards
What is the test of reasonable foreseeability?
Examining extent of D’s liability
_____ of damage
C can only recover if the type of damage suffered was reasonably foreseeable at time D breached DOC
Objective test
E.g. Wagon Mound - oil spil meant ship undergoing welding operations caught on fire 600ft away causing extensive damage to C’s premises - was direct result of D’s negligence but fire damage not reasonably foreseeable, but pollution damage was
Why is the ‘type’ of harm relevant to a claim? What if the damage suffered was not foreseeable but was of the same type?
C can only recover if D ought to have foreseen the ‘type’ of damage suffered
Even if damage suffered was not foreseeable (same type = not too remote)
E.g. Wagon Mound - fire damage not foreseeable, but pollution was
What is the approach for deciding which ‘type’ of harm must be foreseeable?
I.e. if type of harm is foreseeable in context of act
Judiciary takes a broad approach to type of damage that must be foreseeable (esp personal injury)
- Bradford - C contracted frosbite (rare in UK) as had to have window down on 20 hour journey - frostbite fell within cold-related injury (foreseeable type!)
- Page - C suffered psychiatric harm from road accident - fit in category of foreseeable personal injury, physical or psychiatric
Cf Tremain - C (farmer employed by D) contracted weil’s disease through rat urine, whereas foreseeable damage was only injury caused by direct contact with rat (e.g. rat bite) :(
* Policy explains this decision: to take effective precautions against Weil’s disease, it would have been necessary to introduce protective clothing, checks upon cuts, and washing facilities which was out of proportion to cost and risk
Does the exact way the damage occurs need to be foreseen?
No!!! As long as type of damage is reasonably foreseeable
Can be fully different cause but does not need to happen that way
Hughes - child got severe burns from oil lamps left running surrounding hole in road - got from lamp dropping into manhole and exploding (not foreseeable) when it would be more expected that child would knock over lamp and get burnt that way - but did not matter!!!
Does the extent of damage need to be foreseen? What if the extent of damage is greater than what would normally be expected?
D liable for all extent of the reasonably foreseeable type of damages, even if extent greater than what would normally be expected
Vacwell - chemical explosion should have been minor as a result of D’s breach but actually caused extensive property damage - did not matter explosion was of a magnitude that was not reasonably foreseeable; C could recover full extent of loss (type of damage that was foreseeable was property damage by explosion, was irrelevant magnitude of explosion not foreseeable)
What is the ‘thin skull rule’?
The D takes their victim as they find them; no need to foresee extent of damage appies even if damage is aggravated by C’s own weakness (or C’s own ‘impecuniosity’; lack of monetary funds)
Smith - burn from D provoking pre-existing malignant cancer from which C subsequently died - responsible for anything that flows from injury even if C suffers to a great extent because of pre-existing condition - D liable for all physical damage (type) including cancer and death (extent)
Can the thin skull rule apply to impecuniosity?
Yes! Where C’s lack of monetary funds aggravates the damage e.g. Lagden -D liable for all economic loss that arose when C had to hire a vehicle on credit as he did not have enough to pay hire charges (making charges overall higher)
Summary of remoteness
Note that C can recover in relation that damage even if:
- Precise way damage occurred was not reasonably foreseeable and/or
- Full extent of damage not reasonably foreseeable (even if extent aggravated by C’s own weaknesses)
On what balance does a D prove a defence?
On the balance of probabilities
What are the three key defences in the tort of negligence? Are they all complete defences?
- Consent (volenti non fit injuria)
- Contributory negligence
- Illegality
All complete defences bar contributory negligence
When does the defence of consent apply?
When the C has consented to the risk(s) involved and cannot therefore complain of the consequential damage
What is the effect of a successful defence of consent?
Consent acts as a complete defence and C gets no damages
What 4 things does D need to show for a defence of consent to succeed?
Had x2, Agreed x2
D must show that the C:
- Had (mental) capacity to give valid consent to risks
- Had full knowledge of the nature and extent of risks
- Agreed to the risks of injury (not the same as knowing the risks)
- Agreed voluntarily
How can D show that C had capacity to give valid consent to risk? Will suicide be consent?
Normally straightforward unless young child
Reeves - consent could not be used as defence where prisoner took own life and police aware of this - this was the very action police were required to prevent by DOC - but damages were reduced by 50% for contributory negligence
Can C be drunk and still have full knowledge of nature and extent of risks?
Yes: Morris - drunk C accepted lift with drunken pilot, court held C not so drunk to be incapable of understanding nature and extent of risk and willingly embarked on flight knowing D was drunk and negligent
Is knowledge of the risk always the same as consenting to it?
I.e. will knowledge = implied consent always?
No: Dann - C was passenger of drunk driver D who caused accident; defence of consent failed as knowing risk did not mean C had impliedly consented
What conduct indicates implied agreement to the risk? What happens if C falls short of this?
Re agreed to risk (consent defence)
- Engaging in an intrinsically and obviously dangerous occupation e.g. accepting a lift with an obviously drunk pilot (esp after drinking with pilot beforehand and helping pilot prepare plane)
- Anything short of this = unlikely to give rise to implied consent
“Intermeddling with unexploded bomb or walking off edge of unfenced cliff”
Do Cs voluntarily agree to risks of all injuries in sport?
All but those which are not inherent in sport e.g. serious foul play in football
Will employees and rescuers be held to voluntarily agree to risks?
Re agreed to risk (consent defence)
- Smith - Employees who run the risk of their job; knowing is not same as agreeing voluntarily as they may have little option if they wish to keep it
- Baker - Acting on an impulsive desire to save life (e.g. descending into well to rescue workers) will not mean the risk created by D’s negligence is freely consented to
Defence of consent therefore hard to prove
When can consent not be relied on because of statute?
I.e. when can consent not be run as a defence by D?
- Consent by motorists facing claims from passengers (drunk driver cannot rely on consent to defeat C injured as a result of their driving)
- UCTA and CRA prevents restriction of liability for death/PI resulting from negligence - being aware of terms excluding liability for death/PI does not equal consent to those losses
When is contributory negligence argued?
Where C is at fault too and fault has contributed to C’s loss
What 2 things must D establish for a finding of contributory negligence?
C did what and this what?
- C failed to take steps for their own safety
- This failure contributed to C’s damages
What is the legal effect of contributory negligence? Will it wipe out all D’s liability?
Reduces D’s liability; C’s damages are reduced by a % the court finds just and equitable having regard to C’s share in responsibility
Is a partial defence
What is the test for a failure by C to take reasonable steps for own safety?
Whether the C took the same degree of care that a reasonable and prudent person would take
Summary of contributory negligence
