General defences and remedies
- Created by: alexstrapps
- Created on: 14-05-19 14:20
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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
- 1; c must have knowledge of the risk
- 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
- Contributory Negligence
- 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
- Miller v Jackson 1977
- prevents d from commiting a tort or continuing with it
- Mandatory injunction
- compels d to act in a certain way
- eg; making d remove a wall built negligently on c's land
- damages
- Defences
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