Remedies for negligence

Introduction

The principal remedy in any case involving negligence will be an award of damages.

The damage caused to the claimant must be of a type that is 'reasonably foreseeable'.

A loss is reasonably foreseeable if a reasonable man would have foreseen the type of injury, loss or damage.

Proving the duty of care

As a general rule it is for the claimant to prove that the defendant was in breach of the duty of care. Exceptionally the defendant will have to prove that he was not negligent. This will only occur if:

• the harm would not have normally happened if proper care were taken
• there is no other explanation for what has occurred, known as res ipsa loquitor, the thing that speaks for itself
• the defendant was in control of the situation and the victim was not.

Remoteness of Damage

Overseas Tankship (UK) v Morts Dock and Engineering Co (The Wagon Mound) (1961)

Facts: due to the defendant's negligence oil was spilled and accumulated around the claimant's wharf. The oil ignited and the wharf suffered fire damage.

Held: The defendants were held not liable since, while damage to the wharf by oil pollution was foreseeable, damage by fire was not.

If the type of damage is reasonably foreseeable the defendant is liable. It is irrelevant that the defendant might not have been able to foresee its cause or its severity.

Defences to a claim in negligence

There are three main defences to a charge of negligence:

• contributory negligence
• volenti non fit injuria
• exclusion clauses.

Contributory negligence

If the claimant is partly responsible for his own injuries, the defendant can plead the defence of contributory negligence. The court may then reduce any damages it awards to the claimant depending on the degree to which he is judged responsible for his loss.

The onus is on the defendant to show the claimant was at fault and therefore contributed to their own injury.

It is only a partial defence, the defendant is still liable but the damages are reduced to reflect the extent for which the claimant was responsible for their own injury.

Volenti non fit injuria

This applies where the claimant has freely consented to the negligent act. It amounts to an agreement by the claimant to exempt the defendant from a duty of care that he would otherwise owe. Consent can be given expressly where the claimant agrees to the risk of injury, or may be implied from the claimant's conduct.

Consent acts as a complete defence and no damages would be awarded if it is shown to apply.

Exclusion clauses

An exclusion clause is one which seeks to exclude or limit liability for negligence. An exclusion clause may fall within the provisions of the Unfair Contract Terms Act 1977 (see Chapter 2).

If an exclusion clause is found to be valid, this constitutes a viable defence against any action for negligence.

In addition, liability is excluded if it is possible to say that the act occurred in the course of nature i.e. that it was an 'act of god'; something beyond human foresight which the defendant could not have been expected to provide against.

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Tags:	negligence;contributory negligence;Volenti Non Fit Injura;exclusion clauses