LIMITING DAMAGES

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chanika.carringt
Created by chanika.carringt over 5 years ago
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LIMITING DAMAGES
1 REMOTENESS for TORT
1.1 THE WAGON MOUND CASE
1.1.1 TEST
1.1.1.1 consequences are too remote if a reasonable man would not have forseen them.
1.1.1.2 foresight of a reasonable man
1.1.1.2.1 only a low degree of likelihood of loss must be foreseeable
1.1.1.2.1.1 THE HERON CASE
1.1.1.3 the type of physical damage must be
1.1.1.3.1 reasonably foreseeable at the time of the act
1.1.1.3.1.1 it does not matter
1.1.1.3.1.1.1 the acutal manner it occur
1.1.1.3.1.1.1.1 nor the actual extent
1.1.1.3.2 no defence that the pecuniary cost of damagesd is far greater then reasonable forseen
1.1.2 discahrge of oil in wharf, weilding work sparks came in contact with cotton waste cause the wharf to be lit on fire
1.1.2.1 not foreseeable that the wharf would ne damage by fire b/c of the discharge of oill
1.2 type of physical damage
1.2.1 TREMAIN V PIKE
1.2.1.1 C was a heardsm man on a farm and came into contact with rat urine
1.2.1.1.1 held the rare disease was nt foreseeable
1.2.1.1.1.1 food pisoning anf rat bite was foreseeable
1.2.1.1.2 local circumstance would have seen a disease from rat urine as foreseeable
1.3 EGG SHELL PRINCIPLE
1.3.1 take the victim asyou find him
1.3.1.1 injury has to be foreseable nt the extent
1.3.1.1.1 SMITH V LEECH BRAIN
1.3.1.1.1.1 burn on the lip
1.3.1.1.1.1.1 he was suffering from cancer before
1.3.1.1.1.1.1.1 burn caused it to developed, it was foreseeable
1.4 rempte possibility
1.4.1 WAGON MOUND NO 2
1.4.1.1 minor damage to a ship in the wharf
1.4.1.1.1 the D saw the fire as a low probability, which could result in certain circumstance, it was deem forreseeable
1.4.1.2 BASED ON NUISANCE & NEGLIGENCE
1.4.1.2.1 IMPROVE THE WAGON MOUND NO 1 TO DAMAGE WHICH ARE POSSIBLE THAN PROBABLE
1.5 APPLICABLE TO ALL UNITENTIONAL TORTS
1.5.1 DOES NOT APPLY TO DECIET OR STRICT LIABILITY
2 REMOTENESS FOR BREACH OF CONTRACT
2.1 HADLEY V BAXENDALE
2.1.1 TEST
2.1.1.1 1)damages which natural accord from the usual course of the breach of contract itself
2.1.1.2 2) reasonable contemplated by the parties at the time of the contract
2.1.2 the mix broken its crank -shif, P sought damages for lossd of profits for the delay, even those the article being carried was known to the carrier
2.1.2.1 loss of profits were too remote
2.1.2.1.1 b/c it was excepted that P would have an extra crank,
2.2 VICTORIA LAUNDRY LTD V NEWMAN INDUSTRIES
2.2.1 P's bought a boiler from D, D knew it was for immediate use, but took months before delivering it
2.2.1.1 damages for exceptional loss of profits from a contract made with the
2.2.1.1.1 held normal loss could be recovered as it is natural and foreseeable but not exceptional loss b/c the D did not know of the contract with the Minstry
2.3 THE HERON II
2.3.1 the D was carrying sugar and when it arrived the price of sugar fallen
2.3.1.1 he did not know the P intented to sell it as soon as it reached, but he knew there was a market for suggar
2.3.1.1.1 ltoo remote
2.3.2 a higher dgree of foreseeability is require under contract
3 INTERVENING ACT
3.1 IF THE ACT IS MORE RESPONSIBLE FOR THE LOSS THEN THE D'S BREACH THE CHAIN OF CAUSATION IS BROKEN BTW THE BREACH AND THE LOSS
3.1.1 NATURAL EVENTS
3.1.1.1 Carslogie Steamship Co v Royal Norwegian Government
3.1.1.1.1 the Defendant collided with the P's ship. It was repaired and sea-worthy. it was famage by a storm. P sued for loss of profit during the storm due repairs
3.1.1.1.1.1 D was not liable for the damage caused by the storm, because it was uncontrollable, unpredictable and unrelated to D's act.
3.2 THIRD PARTY
3.2.1 if there is a duty to guard against third party conduct, where this is breach the D's will be liable
3.2.1.1 even where the crime was necessary to bring about the loss, if it is the natural consequnece of the carelessness
3.2.1.2 STANSBIE V TROMAN
3.2.1.2.1 where a decorator left the door unlock and he told to lock it. he did not and the house was robbered.
3.2.1.2.1.1 the chain of causation was not broken, the negligence consist of the failure to take reasonable care to guard against the very which happent
3.2.2 a duty other than to guard against it
3.2.2.1 Rouse v Squires
3.2.2.1.1 the D committed larncey of a car, and D1 drove the car and collided with D's car killing the C's huband. D1 brought action against D
3.2.2.1.1.1 the chain was not broken, D1 negligent collided with the vehicle with could have been avoided
3.2.3 conduct comprised intentional wrongdoing
3.3 CONDUCT OF THE PLAINTIFF
3.3.1 LAMBERT V LEWIS
3.3.1.1 the dealer supplied a defected trailer and the P's used it even though it was obviously broken
3.3.1.1.1 Held the P used it knowing it was damaged broke the cahin of causation
3.3.2 reasonable acts will not break the chain
3.3.2.1 if because of the injury you can't see to use your glass , and fell . D would be liable
4 DUTY TO MITIGATE
4.1 UNREASONABLE ACTION will bar him for claiming any party of the damage which was due to his neglect to take this step
4.1.1 the P must take reasonable steps to minimize his loss,
4.1.1.1 YETTON V WASTWODS : wrongful dismissal, he need not accpet an offer for reemployment
4.1.1.1.1 if he has a reduction in staus
4.1.1.1.1.1 employment else where is more likely to be permanent
4.1.1.1.1.1.1 e'ee lacks confidence in the employer b/c of past treatment
4.1.1.2 the plaintiff can consider his commercial reputation and not sue
4.1.1.3 not taking complicated litigation
4.1.2 contract for sale he refused alternative performance and accepting would have put him in a better position
4.1.3 the plaintiff unreasonable refused an operation contrary to medical adivice
4.1.3.1 Selvanayagam v Uwi
4.1.3.1.1 a plaintiff in an action for personal injuries who rejected a medical recommendation in favour of surgery must prove he acted reasonably in al circumstances of the case.
4.1.3.1.1.1 where the surgery s recommended but there was some risk, it was reasonable to refuse it.
4.1.4 refuse an offer for help which would prevent further breach
4.1.4.1 the Flying Fish Case
4.1.4.1.1 ship was damages when D collided with it . C's refused help and as a consquential the ship was destroyed
4.1.4.1.1.1 recover the damage of the collision and not any additional losss
4.2 unreasonable action subsequent to the wrong is nornaly viewed as an aspect of intervening cause
4.2.1 unreasonable incurring expenses subsequent to the wrong is generally viewed as an aspect of the duty to mitigate
4.3 CONTRACT
4.3.1 ANTICIPATORY BREACH
4.3.1.1 no duty to mitigate unless the claimant accepts the breach
4.3.1.1.1 White & Carter (Council) Ltd v McGregor
4.3.1.1.1.1 if one part repudiated the contract, theo ther can perform it without the co operation of the other party. he who performs can request the repudiating party to pay the full amount due under contract.
5 CONTRIBUTORY NEGLIGENCE
5.1 the P must have been at fault or negligence towards himself
5.1.1 Jones v Livox Quarries Ltd
5.1.1.1 contributory negligence is where the person ought to have reasonable forseen, that if he does not act reasonable , prudent man, he might hurt himself
5.1.1.1.1 and he should have considered thers being careless
5.1.1.1.2 the person being negligence ust take his share of the consequence, which is based on causation ant not foreseeability.
5.2 the P's negligence must have been a factual cause of his loss
5.2.1 Froom v Butcher
5.2.1.1 ot wearing a seatbeat, is not factual cause of the collision, but the factual cause of the loss suffered by each. Damage could have been prevented altogether
5.3 The P's negligence must have exposed him to the particular risk of the type of damage suffered.
5.3.1 Jones v Livox Quarries
5.3.1.1 the claimant had neglifence drove a towbar exposing himself to the risk of falling and being crushed
5.4 the court in determining the extent which damages are to be reduced by considering both the causal potency and the comparative blameworthiness of the parties conduct
5.5 CONTRACT
5.5.1 damages will be reduced by taking in account contributory negligence
5.5.1.1 only where the breach of contract amounts to a tort
5.5.1.1.1 Lambert v Lewis
5.5.1.1.1.1 held he could not be indemnified because his neglgience in continuing use in spite of the condition of the trailer
5.5.1.2 no defence for contributory negligence
6 IMPECUNIOSITY
6.1 CAN RECOVeRED BECAUSE OF THE P'S WEAK FINANCAIL POSITION
6.1.1 Lagden v O'Connor
6.1.1.1 the wrongdoer must take his victim as he finds him, economic wise as well physical and mental vulnerability

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