Topic 4 - Remoteness, defences and remedies Flashcards
(44 cards)
What is remoteness in the context of negligence?
Remoteness refers to the limits placed on the extent of loss recoverable once causation has been established
What is the test of reasonable foreseeability?
A claimant can only recover if the type of damage suffered was reasonably foreseeable at the time the defendant breached their duty of care
What was the outcome of Bradford v Robinson Rentals regarding frostbite?
Frostbite was deemed reasonably foreseeable as a result of the employer’s negligence
What does the court’s approach to the type of damage that must be foreseeable indicate?
A prevailing attitude to take a broad approach, particularly in personal injury cases
What was established in Hughes v Lord Advocate regarding foreseeability?
There is no need for the defendant to foresee the exact way in which damage occurred
What principle is illustrated by Vacwell Engineering v BDH Chemicals regarding the extent of damage?
The defendant is liable for the full extent of damages even if the extent is greater than expected
What is the ‘thin skull’ rule?
The defendant must take their victim as they find them, regardless of pre-existing conditions
What was the outcome of Smith v Leech Brain regarding pre-existing conditions?
The defendant was liable for all physical damage, including exacerbation from a pre-existing condition
What does Lagden v O’Connor illustrate about economic loss?
The defendant is liable for the full extent of loss, even if the claimant’s financial situation aggravated the damages
What are the four requirements for the defence of consent?
- Had capacity to give valid consent to the risks
- Had full knowledge of the nature and extent of the risks
- Agreed to the risk of injury
- Agreed voluntarily
In Morris v Murray, how was the claimant’s knowledge of risk assessed?
The court held that the claimant was not too drunk to understand the nature and extent of the risks
What is the difference between knowing a risk and consenting to it, as illustrated in Dann v Hamilton?
Knowing the risk does not equate to implied consent to waive liability for negligence
What type of conduct indicates implied agreement to risk?
Engaging in an obviously dangerous activity
What is implied agreement in the context of engaging in dangerous activities?
Implied agreement can be established when engaging in activities that are intrinsically and obviously dangerous, such as intermeddling with an unexploded bomb or walking on the edge of an unfenced cliff.
Example: In Morris, the claimant accepted a lift from a drunken pilot, which led to the establishment of implied agreement due to the glaring risks involved.
What are the requirements for the defence of consent?
The claimant must have agreed to run the risk of injury voluntarily and must act free of any constraint.
Example: In Smith v Charles Baker & Sons, voluntary consent was stressed as a requirement in addition to knowledge of risk.
In what context does the defence of consent appear difficult to establish?
It is difficult to establish where the claimant is an employee, as they may have little real option but to accept the risks of their job.
Example: Employees may know the risks but not be voluntarily running those risks.
What is the significance of the Road Traffic Act 1988 in the context of consent?
Section 149 prevents motorists from using consent as a defence against claims from passengers injured in accidents.
Example: A drunk driver cannot rely on consent to defeat a claim from a passenger who was injured.
What does Section 2 of the Unfair Contract Terms Act 1977 state?
It prohibits defendants from excluding or restricting liability for death or personal injuries resulting from negligence in business contexts.
Section 2(3) clarifies that awareness of a contract term does not imply voluntary acceptance of risk.
What is contributory negligence?
Contributory negligence is a defence arguing that the claimant’s own fault contributed to their loss, reducing the damages recoverable.
This defence is established under the Law Reform (Contributory Negligence) Act 1945.
What are the two elements the defendant must prove for contributory negligence?
- The claimant failed to take reasonable steps for their own safety
- This failure contributed to the claimant’s damage
How does a finding of contributory negligence affect damages?
It reduces the defendant’s liability in relation to the harm caused, reflecting the claimant’s share in the responsibility for the damage.
The claimant’s damages are reduced by a percentage deemed just and equitable by the court.
What must be considered when assessing a claimant’s failure to take reasonable steps for safety?
The claimant must take the same degree of care that a reasonable and prudent person would take, which is an objective standard.
Example: In Owens v Brimmell, a passenger was found contributorily negligent for knowing the driver was excessively drunk.
What does the illegality defence entail?
Illegality, or ex turpi causa non oritur actio, means no action may be based on an illegal cause, serving as a complete defence if established.
It prevents claims arising from illegal activities, maintaining the integrity of the legal system.
What is the impact of the Consumer Rights Act 2015 on liability exclusions?
Section 65(1) prohibits traders from using terms that limit or exclude liability for death or personal injury through negligence when dealing with consumers.
Section 65(2) clarifies that voluntary acceptance of risk cannot be assumed just because a consumer agreed to or knew about the term.
