Defences and Remedies

Question 1

What is contributory negligence?

Answer 1

When the pursuer contributed to his or her loss through their own negligence.

Question 2

What is the outcome when contributory negligence is established?

Answer 2

Damages will be reduced by a proportion to reflect the defenders contribution.

Question 3

What is the leading case in contributory negligence?

Answer 3

Jackson v Murray

• 13 year old girl crossed the road behind a bus and got hit by a car.
• in lower court held 90% her fault 10% defender’s fault.
• in appeal court held 70% her fault 30% defender’s fault
• in Supreme Court held 50% her fault 50% defender’s fault. (Important/unusual)

Question 4

A finding of contributory negligence on the part of a child will depend on:

Answer 4

• the nature of the particular danger

- the child’s capacity to appreciate its danger

Question 5

What is the defence of volenti non fit injuria and what happens when it is established?

Answer 5

• the pursuer knowingly consented to run the risk of injury

- where established this is a complete defence

Question 6

What defence is Damnum Fatale?

Answer 6

This is an attempt to pin the blame for a harmful event on an extraordinary natural occurrence.

Question 7

What happens if the defence of damnum fatale is established?

Answer 7

• if successful it establishes that the defender was not at fault
• unless liability in the circumstances is absolute it will exonerate the defender

Question 8

What is the defence of Ex turpi causa non oritur actio? It is complete or not?

Answer 8

Where the pursuer was involved in some relatively serious crime or immoral activity at the time the harm occurred.

It is a complete defence.

Question 9

What are the 3 remedies?

Answer 9

• Declarator
• Interdict
• Damages

Question 10

What is declarator?

Answer 10

• a statement concerning the rights of the petitioner.

- accompanied by another remedy (damages or interdict)

Question 11

What is interdict?

Answer 11

• restrains activity but must be ‘in wider than necessary’

- petitioner seeks interdict against the respondent

Question 12

What is the Latin phrase for damages?

Answer 12

“Restitutio in integrum”

Question 13

What are the 2 types of claim for damages?

Answer 13

• Patrimonial

- Solatium

Question 14

What is raised by the victims relatives under s.6 Damages (Scotland) Act 2011?

Answer 14

Where the victim dies outright, the relatives’ claim for loss of services that might have been rendered to them by the victim had he lived.

Question 15

Solatium damages if victim lives:

Answer 15

• damages incurred for pain and suffering

- common law

Question 16

Patrimonial damages if the victims lives:

Answer 16

• Damages incurred for diminished life expectancy
• Based on expected earnings / benefits during “lost period”
• Statutory law: Damages (Scotland) Act 2011

Question 17

Patrimonial claim for ‘loss of services’:

Victim dies

Answer 17

• services that might have been rendered by the victim had they lived.
• s.6 Damages (Scotland) Act 2011

Question 18

Patrimonial claim for ‘loss of support’:

Victim dies

Answer 18

• includes reasonable funeral expenses.

- available to members of immediate family and any other relative actually supported by the victim.

Question 19

Solatium claim for ‘loss of society’:

Victim dies

Answer 19

• available to immediate family only.

- distress and anxiety endured by relative in contemplation of suffering of victim before death.

Question 20

What damages can be claimed by a victims relatives under s.4 (3)(b)(ii) of the Damages (Scotland) Act 2011?

Answer 20

Grief and sorrow caused by the victims death.

Question 21

What damages can be claimed by a victims relatives under s.4 (3)(b)(i) of the Damages (Scotland) Act 2011?

Answer 21

Loss of non - patrimonial benefit the relative might have been expected to derive from the victim’s society guidance had they lived.