Remoteness, Defences & Remedies Flashcards
(21 cards)
What is remoteness in negligence law?
Remoteness refers to limits placed on a defendant’s liability after factual and legal causation are established. The loss must not be too remote from the defendant’s breach.
What is the test for remoteness?
The reasonable foreseeability test: a claimant can only recover if the type of damage suffered was reasonably foreseeable at the time of the breach
How is ‘type of harm’ assessed in remoteness?
Courts ask whether the type (not the specific injury) of harm was foreseeable. This can be construed broadly or narrowly, and courts often favour a broad approach, especially for personal injury.
What is the thin skull rule?
The defendant must take the claimant as they find them, including any physical, psychological, or financial vulnerabilities.
What is the defence of consent?
A complete defence where the claimant freely and knowingly consents to the risk of harm from the defendant’s conduct.
What must the defendant prove for the defence of consent?
The claimant had capacity
Full knowledge of the risk
Agreed to the risk of injury
Voluntarily agreed to the risk
Restrictions on Consent?
- Prevents motorists from relying on consent as a defence against passenger claims.
- A person’s awareness of an exclusion clause is not sufficient to show voluntary acceptance of risk.
What is contributory negligence?
A partial defence under s 1(1) of the Law Reform (Contributory Negligence) Act 1945. Damages are reduced where the claimant is partly to blame for their loss.
Legal test from Jones v Livox Quarries
Claimant failed to take reasonable care for their own safety
That failure contributed to their damage
What is the defence of illegality?
A complete defence where allowing a claim would be inconsistent with public policy because the claim is based on criminal or grossly immoral conduct.
What is the modern test for illegality?
Policy-based test:
(a) What is the purpose of the law being transgressed?
(b) Would allowing the claim undermine that purpose?
(c) Is denying the claim proportionate?
What is the aim of compensatory damages?
To place the claimant in the position they would have been in but for the tort.
What are special damages?
Specifically provable past financial losses (e.g. past lost earnings, car repairs, medical bills to date).
What are general damages?
Non-quantifiable or future losses (e.g. pain and suffering, future loss of earnings, cost of future care).
What is Pain, suffering and loss of amenity PSLA?
Compensation for physical/mental pain and impact on lifestyle. Awards based on precedents (e.g. Kemp & Kemp).
How are future losses calculated?
Using the multiplier/multiplicand method. Assumes lump sum is invested. The court avoids overcompensation.
What can be deducted?
State benefits
Contractual sick pay
Redundancy payments (if linked to injury)
What is not deducted?
Insurance
Pensions
Gifts or charity
What can the deceased’s estate claim for?
Losses up to the date of death (e.g. 2 weeks of pain and suffering). No claim for death itself.
What can dependants claim?
Loss of financial dependency
Bereavement award (fixed statutory amount)
Funeral expenses
Who qualifies as a dependant?
Close relatives, spouses, civil partners, or cohabitants of 2+ years
