Negligence: Remoteness, defences and remedies Flashcards
What is remoteness?
1) the damage was foreseeable?
2) was the damage of the same type foreseeable? (this is a way of the court trying to broaden the scope)
The defendant did not had to foresee the precise or extend of the damage.
Thin skull rule applies
What are the three defences to negligence
1) Illegality
2) Consent
3) Contributory negligence
What is the illegality defence?
It is a complete defence
2 step:
1) Has the claimant committed an illegal (or grossly immoral) act?
2) Apply the Patel v Mirza test, taking into account earlier decisions which turn on similar facts.
What is the Patel v Mirza test?
1) To consider the underlying purpose of the prohibition which has been transgressed and whether that purpose will be enhance by denial of the claim
2) To consider any other relevant public policy on which the denial of the claim may have an impact and
3) to consider whether denial of the claim would be a proportionate response to the illegality, bearing in mind that punishment is a matter for the criminal courts
What is the consent defence?
Complete defence
4 things needed to be proven:
the defendant must prove:
1) have capacity to give valid consent to the risks
2) Had full knowledge of the nature and extent of the risks
3) Agreed to the risk of injury
4) Agreed voluntarily
What is the contributory negligence defence
Partial defence- if proven a % deduction in damages
The two things need to be proven:
1) claimant failed to take reasonable steps for their own safety
+
2) This failure contributed to the claimants damage
What is the aim of damages?
Damages is to put the claimant in the position they would have been in but for the defendant’s tortious act as far as this is possible with an award of money
What are the two types of damages?
1) special damages- quantifiable financial losses
2) general damages- future losses which cannot be specifically proven and non-quantifiable losses
