TORT - DEFENCES and DAMAGES

TORT - DEFENCES and DAMAGES

1. DEFENCES

   • Burden of Proof on the Defendant
   • Ex Turpi Causa; Claimant engaged in criminal activity or alleges he committed crim act because of defendant's negligence; complete defence
     • Clunis v Camden and Islington Health Authority [1998]; stabbed man after being released from mental hospital
     • Inextricable link test
       • Gray v Thames Ltd and Another [2009]; train crash, suffered psychatric issues as a results, then stabbed man
         • "Hard to think of a more inextricable link" between criminal act and loss of earnings
   • Volenti non fit injuria; Claimant consented to activity that involved risk; complete defence
     • Murray v Harringay Arena [1961]; children, hockey match
     • s149 Road Traffic Act [1998]; Volenti can not be used against passengers
   • Contributory Negligence; claimant partly to blame for accident; put himself in dangerous position; partial defence
     • Law Reform (Contrib neg) Act 1945; damage caused by defendant was partly caused by claimant's negligence, damages may be apportioned
     • Sayers v Harlow Urban District Council [1958]; public toilet, climbed and injured herself
   • Limitation "statute-barred"; complete defence
     • s2 Limitation Act [1980]; 6yrs from date of knowledge
     • Halford v Brookes and Another [1991]; claimant did not know legal rights
     • Death of claimant; starts on later date of death
     • Latent Damage Act 1986; 6 years and further 3 yrs when claimant discovered damage or ought to have discovered
   • Specific exclusion; s2 Unfair Contract Terms Act 1977; contractual?
     • A trader cannot exclude or restrict liability for death or personal injury

2. DAMAGES

   • Quantum; amount of damages awarded
   • Nominal damages; claimant suffered minimal or no loss ie trespass
   • Contemptuous damages; claimant's rights have been infringed but have wasted court's time in bringing the action
   • Pecuniary losses; monetary
     • Non-pecuniary losses; non monetary
     • Claimant must mitigate his losses (minimise) to reflect reality of income
   • Special damages; precisely quantified at date of trial ie travel expenses, financial losses etc
   • General damages; not capable for precise calculation at date of trial
     • Pain and suffering; person unconscious will not receive damages under this head
     • Loss of amenity; objective - damages rewarded even to person permanently unconscious but subjective to ie a footballer lost his leg
     • Future loss of earnings
       • Multiplicand = how much does C earn?
         • Multiplier = for how long
       • Multiplicand X Multiplier = damages awarded
   • Damages payable on death; claimant's estate and dependants in their own right
     • Claimant's estate; Law Reform (miscellaneous provisions) Act 1934 - claim everything the claimant would have claimed had they been alive
     • Dependants in their own right; dependants can sue for own financial losses ie if deceased paid rent