Remoteness + Defences - Tort

Question 1

1st issue of remoteness

Answer 1

**1.) Type or kind of damage **- reasonably foreseeable

Wagon Mound No 1

Question 2

Interpretation of reasonable foreseeability according to caselaw?

Answer 2

Jolley v Sutton LBC - less strict

• Saw a broken down council cruiser + wanted to repair it + car broke on him

-> Was reasonably foreseeable -> Some personal injury resulting from working on this dilapadated cabin cruser was foreseeable

Hughes v Lord Advocate - precise mechanism is irrelevant

Question 3

Exceptions to the idea where the type or kind of damage do not need to be reasonable foreseeable

Answer 3

Page v Smith

Psychiatric Injury

Question 4

Reasonable foreseeability and ‘Egg shell skull’ claimants

Answer 4

1. RF person of NF would suffer some harm
2. D must take their victim as they find them - Smith v Leech Brain & C

• Suffered burns + developed cancer (eggshell skull)

Not too remote -> Where any person of NF will suffer harm then you are dunn out from there (CL)

Question 5

Scope of Duty

Answer 5

**Scope of Duty **

• Foreseeable losses are not covered if they fall outside scope of duty
• SAAMCO hypothetical example -> Scope of Doctors duty is to undertake an examination -> Avalanche Injury is coincidental

Too Many Causal Links

Question 6

Medical Cases where the scope of duty dictates whether someone is liable for RF

Answer 6

***Khan v Meadows
*

The claim was only allowed for the foreseeable consequence within that scope – the genetic disorder.

Question 7

Scope of Duty in relation to failure to warn cases

Answer 7

Chester v Afshar

Make sure the risk that manifested should be the risk that ought to be warned abt

Question 8

Too many Causal Links

Answer 8

**Hyde v Tameside AHA **

Question 9

Issues relating to Remoteness

Answer 9

1.) Reasonable Foreseeability to Harm

2.) Eggshell Skull Rule (if necessary)

3.) Scope of Duty (if necessary)

Question 10

What 3 types of defences do you have?

Answer 10

1.) Contributory Negligence

2.) Violenti

3.) Therapeutic Privelige

Question 11

Definition of Contributory Negligence

Answer 11

Statutory Offence - s1(1) Law Reform of Contributory Neglience Act 1945

• “His own fault + partly fault of another” = damages recoverable shall be reduced

Question 12

Leading authority on CN

Answer 12

**Jackson v Murray **

-> Schoolgirl got off bus and went on narrow road

-> Ms Jackson went behind the bus to cross the road + he did not slow down

Question 13

Requirements of CN

Answer 13

1.) C must have some Fault in **PI **- S1(1)

2.) Causation - Causal link between C’s contributory negligence and his injury

3.) Apportionment

4.) Reduction

Question 14

Can CN operate as a complete defence?

Answer 14

NO: Pitts v Hunt - if it can operate at 100% (then how have you established 1, 2, 3) of GoN

YES: Jayes v IMI Ltd

Question 15

CN and vicarious liability

Answer 15

Employer can always take advntage of CN on the defendant

Silverlink Trains Ltd

Question 16

1st Element of CN

Answer 16

Fault: C must have been partly ‘at fault’ in bringing about his own injury s1(1)

Reasonable standard of care applies but can be influenced by:

(A) But some characteristics supress standard of care eg: age Gough v Thorne

(B) Any emergency circumstances in which C is placed by D’s breach - Baker v Hopkins (RESCUER) -> Where someone injures themselves in an EMERGENCY that can be taken into accoiunt

NO SoC no FAULT

Question 17

2nd Element of CN

Answer 17

Causal Link between CN and his injury

-> CN need not contribute to the accident -> Froom v Butcher

(where one does not wear a seatbelt and injures himself)

Question 18

3rd Requirement of CN

Answer 18

Apportionment - Relative Blameworthiness between CN and TP

• Fact-sensitive -> McPherson v Smith
• Where apportionment > 50% unlikely in many cases -> Cassells

Question 19

4th Requirement of CN

Answer 19

Reduction: A reduction in damages which is ‘just and equitable’

• No de minimis principle applies (5% CN)
• Some set by precedent -* Butcher* (someone who does not wear seatbelt 15-25%)

Question 20

Violenti Definition

Answer 20

Reeves - “Whole blame for C’s death must rest on C’s shoulders’

“All or nothing’ defence (Imperial Chemical)

Question 21

Elements of Volenti

Answer 21

• Appreciation
• Consent
• Preserve the Duty
• Exceptions

Question 22

1st Element of Volenti

Answer 22

Specific risks - Mr Morris got into a plane with a drunk pilot (subject)

** Sporting contests** - Watson v British Boxing Board

** Objective or objective?** - Morris v Murray -> Subjective (mostly) but Objective in the case of being drunk

C in a position to know of and to appreciate risk of injury posed by D

Question 23

2nd Element of Volenti

Answer 23

Consent

C voluntarily consented to the specific risk of the injury that occurred, expressly or impliedly

Question 24

3rd element of volenti

Answer 24

The defence, where succesful, cannot have the effect of destroying the content of the uty owed by D to C

Morris v Murray,

Question 25

Element 4 of Volenti

Answer 25

The defence must not be barred by law * s 149 Road Traffic Act 1988 - **Joyce v O'Brien**

Question 26

THERAPEUTIC PRIVILEGE Definition

Answer 26

***Sidaway*** Enables a doctor to withhold from his patient information as to risk if it can be shown that a reasonable medical assessment of the patient would have indicated to the doctor that disclosure would have posed a serious threat of psychological detriment to the patient’

Question 27

elements of therapeutic privelige

Answer 27

i. Disclosure to the patient would foreseeably be seriously adverse or damaging ii. Disclosure would have harmed the patient’s health – potentially three types of harm iii. The doctor’s decision not to disclose was reasonable and in the patient’s best interests