Defences and Remedies

• Contributory Negligence


  A legal defense that may be raised when the defendant feels that the conduct of the plaintiff somehow contributed to any injuries or damages that were sustained by the plaintiff.
• Sayers v Harlow


  contributory negligence, woman trapped in toilet fell when balancing on toilet roll holder. Occupier liable but damages reduced by 25%.
• Pidgeon v Doncaster Health Authority


  Failure to attend health appointments, this was ruled as contributory negligence
• Law Reform (Contributory Negligence) Act 1945


  S1(1) - Where any person suffers damage as the result partly of his own fault and partly of the fault of any other person or persons, a claim in respect of that damage shall not be defeated by reason of the fault of the person suffering the damage, but the damages recoverable in respect thereof shall be reduced to such extent as the court thinks just and equitable having regard to the claimant's share in the responsibility for the damage.
• Volenti Non Fit Injuria


  person who knowingly puts himself at risk for danger, cannot sue
• Nettleship v Weston [1971] 2 QB 691


  A driving instructor successfully claimed in negligence against a pupil when he was injured in an accident she caused on her third lesson.

  
  

  The duty of care to be expected of a learner driver is that of the reasonably competent and experienced driver. (Less 50% contributory negligence)
• Morris v Murray [1991] 2 QB 6


  The plaintiff was injured on a drunken plane flight. He had colluded in the dangerous venture and his claim was defeated by the defence of volenti.

  
  

  The plaintiff had fully accepted the risk of serious injury, which discharges the pilot from liability for negligence in relation to flying the aircraft.
• Titchener v British Railways Board 1984 SC (HL) 34


  15-year old girl struck by train while crossing a railway line. BRB had not failed in their duty by not constructing a stronger fence round their property. The more self-evident the hazard, the less the need for signposts and fences.

  
  

  The respondents discharged their duty of care by building a fence which was deemed to constitute a sufficient warning to keep people out of the property. There was no duty to maintain the fence in a reasonable state of repair. Moreover, it was deemed that if there had been, the appellant was deemed to have accepted the risks of crossing the train line.
• Occupiers Liability (Scotland) Act 1960, s2(3)


  "Nothing in the foregoing provisions of this Act shall be held to impose on an occupier any obligation to a person entering on his premises in respect of risks which that person has willingly accepted as his; and any question whether a risk was so accepted shall be decided on the same principles as in other cases in which one person owes to another a duty to show care."
• Ex turpi causa non oritur actio

  no cause of action may be founded upon an immoral or illegal act
• Animals (Scotland) Act 1987, s4(2)

  • There shall be no defence available under subsection (1) above to a person killing or causing injury to an animal where the killing or injury - (a) occurred at or near a place where the person was present for the purpose of engaging in a criminal activity; and (b) was in furtherance of that activity.

  
  

  This is an example of ex turpi causa non oritur actio
• Pitts v Hunt [1991]


  A pillion passenger who is injured in a collision where he has encouraged the rider to ride while intoxicated, uninsured and unlicensed cannot sue in respect of his injuries.

  
  

  Illegality defence accepted: It was a criminal act (ex turpi causa) in encouraging him to drive, and therefore he could not sue for damages. Claim blocked.
• Sloan v Triplett 1985


  A passenger injured in a road accident sought damages from the uninsured driver.

  It was held by Lord Allanbridge that the passenger had been involved in the theft

  of the car and the action was therefore unsuccessful.
• damnum fatale


  • 'Act of God'

  • Very rare, and so there is little modern authority

  • Circumstances giving rise to the action must arise from natural causes, without human intervention, and must go beyond anything which is reasonably foreseeable or preventable
• Caledonian Railway Co v Greenock Corporation 1917 SC (HL) 56


  Just because something is rare, does not mean it is a case of damnum fatale

  the rainfall on the day in question was not a damnum fatale which could relieve them from liability; and accordingly that the corporation were liable for the damage sustained by the railway companies.
• Necessity


  A defence available in cases of emergency
• Cope v Sharpe (No 2) [1912] 1 KB 496


  To be successful, there must be present what a reasonable person would regard as danger, and any action taken by the defender must be reasonable
• Southport Corporation v Esso Petroleum Ltd [1953] 3 WLR 773

  held that the owners of an oil tanker were not liable in negligence to the corporation where oil was discharged into the sea to save the tanker, and the oil became deposited on the foreshore and a marine lake belonging to the corporation

  
  

  necessity can be used to justify damage to property
• res judicata


  "The thing has been decided." A claim cannot be retried between the same parties if it has already been legally resolved.

  
  

  Concern that if we allowed multiple judgments related to the same dispute, the ambit of suits would be increased and cause difficulties, especially if different judgments were laid down
• Matuszczyk v National Coal Board 1955 SC 418


  In the present action based on the same accident and claiming the same damages, the pursuer alleged a breach of the defenders' statutory duty. The Court of Session, Outer House, held that the defenders' plea of res judicata should be sustained and dismissed the action.
• Prescription


  If, after the appropriate date, an obligation to which this section applies* has subsisted for a continuous period of five years -

  • (a) without any relevant claim having been made in relation to the obligation, and

  • (b) without the subsistence of the obligation having been relevantly acknowledged,

  • Then as from the expiration of that period the obligation shall be extinguished

  
  

  Obligations to make reparation for causing personal injury or death are imprescriptible
• Limitation


  In actions of personal injury, but where death has not occurred, an action must usually be brought within three years, UNLESS

  • Court grants an extension, s19A - but still subjected to the prescriptive period

  • Action relates to historic abuse, s17A - this is not limited by time.
• Declarator


  "A form of action by which some right of property, or of servitude, or of status, or some inferior right or interest is sought to be judicially declared"

  
  

  Essentially, when a person seeks a declarator they are asking the court to make a statement as to their legal position

  • Not used for general statements on the law, must settle a live practical question between the parties

  • A declarator is often accompanied by another remedy (e.g., damages)
• interdict


  • An order that the defender must refrain from doing something or stop doing something

  • Cannot be obtained retrospectively

  • Must be narrowly drawn, clear and precise
• Webster v Lord Advocate 1985 SC 173


  the owner of a flat overlooking and immediately adjacent to Edinburgh Castle esplanade raised proceedings for declarator and interdict in relation to alleged nuisance by noise caused by the performance of the Edinburgh Military Tattoo on the esplanade and by work ancillary thereto.

  
  

  Held, ( allowing the reclaiming motion) that the terms of the interdict were not sufficiently precise to leave the defenders in no doubt as to what was forbidden and that the words "metallic construction" should be inserted before "noise" in the interdict.
• McMurdo v Ferguson 1993 SLT 193


  A sporting personalities' agent and consultant brought a petition for suspension and interdict against a journalist and the managers and proprietors of a newspaper in respect of an article due to be published within hours of the hearing of the motion for interim interdict.

  
  

  the balance of convenience favoured the petitioner; and interim interdict pronounced
• Damages


  damages are awarded with the objective of putting the pursuer

  back into the position they were in before the harm was suffered

  • aka Restitution or Compensation - this is not intended to be punitive

  • Where the victim lives, damages can be divided into two - Solatium (pain and suffering) and Patrimonial Loss (financial or pecuniary loss)
• Damages in cases where the victim lives - Damages for pain


  • Solatium

  • Damages for injury suffered

  • Pain and suffering

  • Including past pain and suffering, and pain and suffering likely to besuffered in the future

  • Impairment - or rather, loss of faculties or amenities

  • Reduction in enjoyment of life

  • Diminished life expectancy - Damages (Scotland) Act 2011, s1

  • Allows an award where the pursuer is, was, or will become aware of a diminished life expectancy as a result of the injury

  • Provisional damages - Administration of Justice Act 1982, s12
• Damages for when the victim lives - Patrimonial


  • Patrimonial Loss (financial loss)

  • Loss of earnings as a result of reduced life expectancy - Damages(Scotland) Act 2011, s1(5)-(8)

  • Past loss of earnings

  • Future loss of lifetime earnings (calculated using Ogden Tables)

  • Cost of services rendered to a victim by relatives - Administration of Justice Act 1982 s8

  • Cost of services formerly rendered by victim to relatives -Administration of Justice Act 1982 s9

  • 'Relative' is defined in AOJA 1982 s13(1)
• Damages for when the victim dies


  • If the accident has not resulted in instant death, the executor can claim in the deceased's place - Damages (Scotland) Act 2011, s2

  • If the accident results in instant death, the relatives (s14) can claim under s3

  • Loss of services - s6

  • Loss of support - s4(3)(a)

  • Includes reasonable funeral expenses

  • Loss of society/emotional harm - s4(3)(b) (only available to immediate family - s14(1))

  • Distress and anxiety endured by the relative in contemplation of the suffering of X before X's death

  • Grief and sorrow of the relative caused by X's death

  • The loss of such non-patrimonial benefit as the relative might have been expected to derive from X's society and guidance if X had not died