defences and remedies

• Defences to negligence


  • Contributory Negligence
  • Volenti (Consent)
• Contributory Negligence


  This will usually result in damages being reduced by a set amount e.g. 25%
• Volenti (Consent)


  This is a full defence which means that whilst the D may owe a duty, have breached that and is liable for the damage in normal situations, the C's actions are considered to be the main cause of the damage
• Contributory Negligence


  1. Covers situations where the V has contributed in some way to their loss or harm

  2. Governed by the Law Reform (Contributory Negligence) Act 1945

  3. It is a partial defence so if proven can result in the C's damages being reduced

  4. 100% reduction of damages can sometimes be awarded as it the defence is used in situations where the C is partly to blame, not 100%

  5. Action taken in an emergency situation will not amount to CN if the action is reasonable

  6. No clear age as to when CN would apply to children. Use outcomes of cases to help you decide
• Volenti


  1. Applies in situations where the C assumes the risk. It is a full defence

  2. Three essential elements: Knowledge of the risk, Consent must be given Voluntarily, Expressly or impliedly agrees to waive any claim in respect of such injury

  3. Mere knowledge of the risk does not constitute consent

  4. Law takes a more sympathetic approach in rescue cases so as not to discourage people from helping
• Aim of damages


  To put the claimant back in the position they were in before the tort was committed
• Different types of damages

  • YouTube star Chrissy Chambers wins damages in landmark UK revenge porn case
  • Woman awarded £9m damages for care of son with haemophilia
  • Cypriot veterans win right to claim damages over UK torture claims
• Special Damages


  Losses that can be accounted for before the case goes to court, known as quantifiable losses. Examples: Loss of earnings, Travel expenses, Medical expenses/special facilities, Direct financial losses
• General Damages


  Pecuniary Damages: Future financial losses, Future loss of earnings, Future medical/travel expenses

  Non-pecuniary Damages: Cost of injury, Pain and suffering, Loss of amenity
• Mitigation of Loss


  The claimant is expected to keep his/her losses as low as possible. If he/she doesn't, then their claim may be reduced.
• How damages are paid

  Usually paid in a lump sum where the claimant gets all their compensation at the same time

  For large payouts, claimants usually get a structured settlement where the money is invested and the claimant gets instalments, governed by the Damages Act 1996

  If the claimant has a medical condition which has not settled down, they can get a small lump sum, known as provisional damages, and then go back to court when their medical condition has settled down for their final payout