General defences and remedies

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  • General defences and remedies
    • Defences
      • Contributory Negligence
        • Partial defence, d still liable to a certain extent
        • Law reform (contributory negligence) act 1945; covers when person suffers damage partly as result of their own fault
        • damages reduced to reflect c's level of fault
        • Froom v Butcher 1976
        • no age limit for when you can contribute to your own negligence
          • Morales v Eccleston 1991
      • consent
        • voluntary assumption of risk
        • complete defence meaning d isn't liable at all if successful
        • 3 elements to satisfy defence
          • 1; c must have knowledge of the risk
            • Murray v Harrigay Arena 1951
          • 2; c's consent must be freely given
            • morris v Murray 1991
          • 3; c must exercise their freedom of choice
            • Smith v Baker 1891
            • Shatwell 1965
        • consent in sport
          • c only consents to risks ordinarily incidental to the sport
          • Watson v Grey 1998
        • consent with rescuers
          • rarely a defence, courts more sympathetic in rescue cases
          • Baker v Hopkins
    • remedies
      • damages
        • aim to put c in position they would've been had tort not been committed
        • special damages
          • have specific value
          • eg: medical expenses, loss of earnings etc
          • courts only allow for recovery of losses reasonable in the cicumstances
        • General damages
          • cannot be precisely calculated, up to judge to decide
          • eg: pain and suffering, future loss of earnings, future medical expenses etc
        • remoteness test
          • decides if d is entitled to damages
          • asks if damage was reasonably forseable or too remote from the breach
          • if damage was unforeseeable it may be too remote and d won't be the cause
            • Wagon Mound No1 (1951)
          • d doesn't need to predict precise was damage was caused, just some injury/ damage of the same kind
            • Hughes v Lord Advocate 1963
      • injunctions
        • court order, ordering d not to do something
        • an equitable remedy, at discretion of the court
        • prohibatory injunction
          • prevents d from commiting a tort or continuing with it
            • Miller v Jackson 1977
              • injunction refused as it would've been in contradiction with public interest
        • Mandatory injunction
          • compels d to act in a certain way
          • eg; making d remove a wall built negligently on c's land

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