Defences, Damages and Remedies

QUESTIONS A2 TORT LAW

The Dimple Gold Cup is a horse race that takes place at the famous Braintree racecourse in England. On the
day of the race the horses were being loaded into the stalls from which they were to start the race when two of
them reared up and threw their jockeys to the ground. One of the jockeys, Bob Jameson, badly damaged his
spine in the fall. His horse, Whisky Galore, ran across the racecourse, leapt the surrounding fencing and
knocked over and trampled several spectators before being caught. One of the spectators, Gemma Grouse,
sustained two broken legs in the incident. Consider the liability of the race organisers and the owner of
Whisky Galore and whether they can successfully defend any action taken against them by Bob or Gemma.

Candidates are expected to contextualise by briefly outlining the basic principles of negligence:
duty of care, breach of duty and resultant loss. Attention must then be switched to a defence in
tort known as volenti non fit injuria. Better candidates will translate the Latin as meaning “to one
who is willing (volenti), actionable harm (injuria) is not done (non fit)”. Commonly known as the
defence of consent, which is of general application within the law of tort. Thus if it can be
established that the complainant consented, the defendant will not be liable.
Objective test established: was the outward behaviour of the complainant such that it is
reasonable for the defendant to conclude that he consented to the risk that he undertook?
Difficulty arises, however, because it is frequently clear that a person knows of a risk, but is not
conclusive proof that consent was actually given. Could this be so in Bob’s case, or was it a risk
that arises from the very nature of his work? Cases such as Smith v Baker (1891), ICI v Shatwell
(1965) and Kirkham v Chief Constable of Greater Manchester (1990) should be referenced as
examples.
Relating the principles to the case of Gemma, candidates will need to conclude whether mere
attendance at a horse racing event was evidence of consent to associated risks or not. Some
reference to the duty of care imposed by the Occupiers’ Liability Act 1957 might be made, but
should not be the principal focus.
Whatever conclusion is reached it should be clear, compelling and fully supported.

Discuss the extent to which the defences of volenti non fit injuria and contributory negligence limit the
claimant’s ability to make a successful claim in negligence.

Potential answers may include:

Assessment Objective 1 – Knowledge and understanding
Explain the defence of volenti non fit injuria:
 It is a complete defence when the defendant has been negligent and caused damage to the claimant
 But the claimant has voluntarily accepted the risk of harm

Explain the essential elements of the defence:

 The claimant exercised free choice in accepting the risk - Smith v Baker
 The claimant understood the exact nature of the risk- Stermer v Lawson
 The claimant expressly or impliedly agreed to the risk - ICI v Shatwell

Explain the application of the defence in a sporting context:

 The injury occurred within the rules of the game
 Compare Simms v Leigh RFC and Condon v Basi

Explain the application of the defence in a medical context:

 The patient must consent to all treatment - Re T
 And must be made aware of risk- Chatterton v Gerson
 Patients have a right to make their own decisions about treatment and must be given sufficient information to do so
– Montgomery v Lanarkshire Health Board
 But emergency treatment may be an exception- Leigh v Gladstone

Explain the application of the defence in road traffic accidents – Road Traffic Act 1988
Explain the defence of contributory negligence
 Only a partial defence under the Law Reform (Contributory Negligence) Act 1945
 Which reduces damages by the extent to which the claimant is responsible for his own harm - Baker v Willoughby,
Spencer v Wincanton Holdings

Explain the essential elements of the defence:

 The claimant failed to take reasonable care for his own safety - Jones v Livox Quarries, Badger v Ministry of
Defence
 This failure to take care was a cause of the harm suffered Sayers v Harlow UDC
Explain that where the claimant is a child they are judged against a reasonable child – Evans v Souls Garage
Explain that if the claimant’s actions made no difference to the outcome then they will not be considered contributorily
negligent – Smith v Finch
Explain the slightly different approach in emergencies - Jones v Boyce
Explain the application of the defence in road traffic accidents - Froom v Butcher, Owens v Brimmell
Recognise the technical possibility of a 100% reduction in damages- Jayes v IMI (Kynoch) and the arguments against
such an approach- - Pitts v Hunt
Credit any other relevant case(s)
Discuss how the defences limit the ability to make a successful claim:
 Volenti means no liability is attributed to the defendant and so no damages are payable to the claimant
 Volenti being a complete defence means those causing harm can avoid their obligations and this undermines the
effectiveness of the tort
 Before 1945 both defences were complete so the ability to make a successful claim was even further limited than it
is now
 Volenti operates where the claimant has freely accepted a known risk and so it is arguably correct that the claimant
cannot make a successful claim

Discuss how the defences do not limit the ability to make a successful claim:
 Contributory negligence is a partial defence only, this means that there is still liability for the defendant and blame
apportioned
 Contributory negligence means damages are awarded but reduced to the extent that the claimant is responsible for
their own harm
 The defence of volenti is harder to claim than contributory negligence meaning that it is less likely that the claim will
be completely defeated
 Volenti has been used much less since the passing of the 1945 Act and so few claims are completely defeated
 Volenti is not available under the Road Traffic Act because of the availability of compulsory third party insurance

David was taking his daughter Elena, aged eight, to school in his car. She was not wearing a seat
belt. As they were late, David was driving very fast. He was unable to avoid Frank who was in the
middle of the road on his motorbike, overtaking a car. Frank had seen David approach him but
decided to overtake anyway.
Both Elena and Frank were taken to hospital as they were seriously injured. At the hospital the
doctors offered Frank a risky operation to limit the extent of his brain injury. Frank chose to go
ahead with the operation but it made his condition worse.
Evaluate the accuracy of each of the four statements A, B, C and D individually, as they apply to
the facts in the above scenario. [20]

Statement A: David will not have the defence of contributory negligence in a claim by Elena.
Statement B: David will have the defence of volenti in a claim by Elena.
Statement C: Frank’s damages from David will be reduced by 100% through the defence of
contributory negligence.
Statement D: Frank does not have a claim for the brain injury as the operation was a novus
actus interveniens.

P1 The defence of contributory negligence applies where the claimant is partly responsible for the harm suffered
P2 Elena is partly responsible by not wearing a seatbelt
P3 A reasonable person would have worn a seatbelt
P4 But Elena is 8 years old and would not reasonably be expected to know the dangers of not wearing a seat belt
P5 The statement is accurate.

P1 Volenti is where the claimant has consented to what was done by the defendant
P2 By getting in the car Elena has impliedly consented to be driven, but not necessarily to David driving fast
P3 The claimant must be capable of giving consent
P4 Elena is an 8 year old girl so she unable to consent to the risk
P3a Volenti is not available under the Traffic Act 1988
P4a David cannot use the defence as this is a driving offence
P5 The statement is inaccurate.

P1 A successful contributory negligence defence will reduce the defendant’s damages

P2 Frank has contributed to his injuries as he took a risk overtaking
P3 The reduction will depend on the proportion that the claimant contributed to his own loss
P4 Frank is only partly at fault for his injuries so the reduction will not be 100%
P5 Conclude that the statement is inaccurate.

P1 A novus actus interveniens can arise from the claimant’s or a third party’s actions, which can break the chain of
causation and relieve the defendant of liability
P2 Frank has chosen to go ahead with the risky operation
P3 A novus actus interveniens occurs when the claimant or third party acts unreasonably
P4 Neither Frank or the doctors have acted unreasonably because when Frank undergoes the operation he is trying to
prevent further harm to himself
P5 Conclude that the statement is inaccurate.

Al Shakfeh Engineering Company have been engaged to construct a new building in the Sultanate
of Jumbai. It is planned to be the highest building in the world and is being built to commemorate
the Sultanate’s bicentenary.
While the foundations of the building are being excavated and prepared, main power supply cables
are severed and the nearby Motor Tyre Factory is unable to operate for two days until power to them
is restored. Before starting the work, Al Shakfeh Engineering Company obtained plans showing
cabling under the site, but the main power supply cables in question did not appear on them.
Mustafa works for Al Shakfeh Engineering Company and is instructed to tunnel underground which
is known to be dangerous. Mustafa agrees to participate, even though he knows that he has not
been supplied with suitable equipment to safeguard himself. Mustafa falls and badly injures himself.
The project begins to run behind schedule and to exceed its cost budget. In order to make
savings, Al Shakfeh Engineering Company bring in construction machinery that is significantly
noisier than planned. This impacts badly on Jamel, who lives next to the building site. He is unable
to sleep day or night for a number of weeks because of the noise.
Identify what general defences in tort that might be raised by Al Shakfeh Engineering Company in
each of these incidents and, with reference to decided cases, discuss their likely success or
failure.

General defences are those that can be raised in respect of more than one tort as opposed
to specific defences peculiar to individual torts.
In the first instance, there has been an apparent negligent act as power supply cables are
severed and the power supply to a neighbouring factory is cut. A duty of care, breach of that
duty and resultant loss would need to be established before liability in negligence can result.
On the face of it, the facts would appear to speak for themselves (res ipsa loquitur).
However, the engineering company could plead inevitable accident as a defence to the tyre
company’s claim. By definition, an accident is deemed inevitable if, in all the circumstances
of the case. it was one that the defendant could not have avoided however much care they
took. This would appear applicable here as maps had been obtained, but the cables were not
shown on those available for reference
The second incident raises the issue of the defence of consent or volenti non fit injuria.
Claims will fail if defendants can prove that claimants voluntarily assumed risks which
resulted in losses suffered. As an employee, did Mustafa volunteer or did he merely accept
the risk for fear of action against him by his employer if he refused (Bowater v Rowley Regis
Corporation)?
In the last instance, private nuisance would appear to be at issue. Was there an
unreasonable indirect interference with a person’s use or enjoyment of land in their
possession? Apparently so. The engineering company may well try to use the defence of
necessity in this case. However this defence is only available to those situations where the
tort is inflicted out of necessity in the sense that it saves greater loss to the claimant that
would otherwise be suffered. In this case, it would appear that the loss being saved is not the
claimants but the defendant’s, and hence such a defence is destined to fail (Andreae v
Selfridge).
The principles must be applied to the scenarios and clear, compelling conclusions drawn.

‘To one who is willing, no (actionable) harm can be done’.

Consider the extent to which this is a defence to actions based in the law of tort.

Candidates are expected to identify the question as relating to a defence in tort known as volenti non fit
injuria. Better candidates will translate the Latin as meaning “ to one who is willing (volenti), actionable
harm (injuria) is not done (non fit)”. Commonly known as the defence of consent, which is of general
application within the law of tort. Thus if it can be established that the complainant consented, the
defendant will not be liable.
Objective test established: was the outward behaviour of the complainant such that it is reasonable for
the defendant to conclude that he consented to the risk that he undertook? Difficulty arises, however,
because it is frequently clear that a person knows of a risk, but there is not conclusive proof that consent
was actually given. Cases such as Smith v Baker (1891), ICI v Shatwell (1965) and Kirkham v Chief
Constable of Greater Manchester (1990) should be referenced as examples.
Special cases such as sporting activity and rescue cases in the tort of negligence should also be explored
and better candidates might also be expected to reference S1(6) Occupiers Liability Act (1984).

According to S37, Supreme Court Act 1981, a judge may only award an injunction as a
remedy when it is considered just and convenient to do so.
Using examples of cases from the Law of Torts, evaluate the circumstances under
which injunctions have been awarded as remedies.
Common Law damages remain the principal remedy for all civil matters. All equitable
remedies, of which an injunction is just one, are only ever issued at the discretion of the court
when, in the circumstances, damages would be considered either inadequate, inappropriate
or both. In the law of torts, injunctions can be particularly effective, especially when dealing
with continuing or repeatable torts such as defamation and nuisance, as the effect is to
prohibit commission, continuance, or repetition of a tort.
Because injunctions are equitable remedies, an award of such a remedy must be deemed
the just and equitable thing to do in the circumstances. Candidates are expected to select
appropriate case law and to evaluate whether this premise is indeed correct. Redland Bricks
Ltd v Morris (prohibitory injunction), American Cynamid Co v Ethicon Ltd (interlocutory
injunction) and Shelfer v City of London Electric Lighting Co (damages in lieu of injunction)
would be good, but not exclusive starting blocks for discussion.

‘Traditionally, anyone who was partly responsible for the harm done to them could not recover in tort, but
today, damages can be reduced taking account of fault on behalf of the claimant.’

Trace the statutory and case law developments that helped to bring about this change in approach to awards
of damages in negligence cases and critically analyse the standard of care issues that may arise as a result.
The focus of this question is the partial defence of contributory negligence.
Up until 1945, any fault on the part of a complainant would have totally negated any claim made in negligence,
however little the part that the complainant had actually played in the incident giving rise to the action. The Law
Reform (Contributory Negligence) Act 1945 now provides that such claims need not fail; damages can simply be
reduced in accordance with the complainant’s own degree of fault.
Many of the cases on contributory negligence in negligence actions concern accidents (eg Baker v Willoughby,
Brannon v Airtours plc), but candidates should be aware that it could equally-well apply to economic loss cases (eg
Cavendish Funding Ltd v Henry Spencer & Sons Ltd), should a complainant have failed to take reasonable care of his
own economic interests.
Candidates should clarify that, if a claimant is not to be found contributorily negligent, he must have conducted himself
appropriately, as judged against the same standard of care as expected of the defendant in the particular
circumstances. It is an objective standard, with allowances made for children and disability if it would make it
impossible for the standard to be reached.
Issue re account taken of child’s age and development. Children develop at different rates and do get treated
differently by the courts as a consequence – unsatisfactory state of affairs? Cases such as Yachuk v Oliver Blais Co
Ltd and Evans v Souls Garage might be explored and contrasted.
Issue re fault calculations. How can degree of fault be accurately and fairly assessed? For instance, in Baker v
Willoughby, the complainant’s degree of fault was assessed differently at first instance and on appeal!
Responses that attempt no critical analysis as required by the question will be limited to maximum marks within mark
band 3.

Countrywide Bakeries Ltd supply a number of supermarkets with bread. In order to meet the demand of their
customers, bread is baked in electric ovens for 24 hours per day, 7 days per week. During building works
carried out on the adjoining property by Gungho Contracting Co, the electricity supply is accidentally cut off
for 12 hours. This forces a temporary closure of the bakery. Countrywide Bakeries Ltd now seek damages
from Gungho Contracting Co for three losses: (i) the cost of the bread in the oven when the electricity supply
was cut, (ii) the profit that would have been made on the sale of that bread, and (iii) the loss of profit of
additional bread that would have been baked in that 12 hour period. Assuming that Gungho Contracting Co
are found to be negligent, assess the extent to which Countrywide Bakeries Ltd might be compensated for the
losses identified above.

This question asks candidates to assume proof of negligence, so no discussion of general principles of negligence is
required and will receive no credit.
The focus in this instance is clearly the compensation of the victim and requires discussion of the principles of
remoteness of damage and of liability in negligence for pure economic losses.
For any loss to be recoverable in an action in tort, that loss must not be so remote from its cause that it was not a
reasonably foreseeable consequence of that cause (The Wagon Mound; Hughes v Lord Advocate). Candidates must
make an assessment here. Were the three losses, in essence, reasonably foreseeable? Candidates might consider
the courts approach in Page v Smith, Margereson v J W Roberts Ltd and Brown v Lewisham & North Southwark
Health Authority in support of argument. More specifically, candidates might notice a remarkable similarity between
the facts of the scenario and those in the decided case of Spartan Steel & Alloys Ltd v Martin.
The issue of pure economic loss needs to be traced through case law development (eg Weller & Co, Spartan Steel,
Junior Books).
The law of tort distinguishes between losses suffered as a result of damage to person or property and those of a
purely economic nature where no such damage has occurred. In the case of pure economic loss, the courts have
been reluctant to allow claims. So what of this case?
Loss (i) is a clear case of physical damage to property, so unless deemed too remote, is likely to be deemed
recoverable.
Loss (ii) would appear to be an economic loss arising from damage to property and, in that case, the claim, subject to
remoteness, would also succeed.
‘Torts generally require an element of fault to be present before liability is established.’
Evaluate the arguments for and against this principle of English Law.

Candidates should commence by elaborating on the principle, albeit briefly: some torts require
not only the commission of a particular act or omission, but also an element of fault in the form
of intention (e.g. trespass), carelessness (e.g. negligence) or malice (e.g. malicious
prosecution).
Traditional reasons for this approach include: control of tort actions (do not wish to open
floodgates), deterrence (to promote careful behaviour), accountability (a way of making people
pay for wrongdoing).
Traditional arguments against: unjust distinctions (two parties suffering precisely same injuries
may receive differing compensation), illogical distinctions (does failure to prove fault actually
mean that there was no fault?), lack of deterrence (practical effect debatable), expense (need
to prove fault increases length and cost of cases), objective standard (fault judged by objective
standard of behaviour regardless of knowledge, capacity or experience).
Candidates will only receive marks in Band 3 if attempts are made to evaluate and not merely
list the arguments for and against.

‘An award of damages in tort is based on the principle of restitutio in integrum.’

Discuss the extent to which courts in England & Wales achieve this aim of restitution in
full, the main remedy in tort.

An award of damages in tort aims to compensate claimants for actual losses suffered;
restitutio in integrum means restoration in full and the aim is to put a claimant in the position
(s)he would have been in had the tort not been committed. Restoration in full may necessitate
awards of general damages for losses arising naturally from the tort and special damages
which have been claimed in particular because the loss is not a natural result of the tort in
question.
Pecuniary and no-pecuniary losses may be subject to an award of damages. The former,
which are financial, are easier to calculate than the latter, but even when losses are purely
financial, the issue of what amounts to restitutio in integrum is not always straightforward;
disagreements between first instance and appeal decisions were very evident in Gardner v
Marsh & Parsons and South Australia Asset Management Corporation v York Montague Ltd.
Issues of over-compensation also arise (Parry v Cleaver; Longden v British Coal) as do the
issue of lump sum payments in cases where the true effects of a loss are not felt until after an
award has been made (Pearson Commission (1978) recommendations might be referred to
here).
Fault ought also be discussed. Compensation by way of damages does not take degree of
fault into account.
Candidates are expected to draw clear conclusions, summing up by saying how far they feel
that the aim of restitutio in integrum is achieved.

The usual reason for awards of damages in tort is to compensate victims. Using case law to support your
answer, analyse the circumstances in which noncompensatory awards might be made instead.

Damages in tort are intended to put the claimant in the position they would have enjoyed if the tort had never been
committed; the aim of damages in tort is to compensate claimants rather than to punish defendants. However, in some
cases, damages may be awarded for different reasons and this may result in the award being more than or less than
required to directly compensate for the loss suffered. Candidates should identify, explain and evaluate the purpose of
the four types of non-compensatory award: contemptuous, nominal, aggravated and exemplary damages. Case law
examples should be used wherever possible to illustrate the purpose of the award and to evaluate the extent the
purpose was achieved. Examples (non-exhaustive) might include Constantine v Imperial London Hotels, Khodaparast
v Shad, Rookes v Barnard etc. Limitations on the use of exemplary awards should also be addressed. Candidates
must attempt to evaluate the statement.

Contributory negligence and volenti non fit injuria are very similar in nature and effect. Analyse these
defences in tort and explain the extent to which you agree with this statement.

Candidates should define the two terms and then go on to discuss their respective features as remedies. Volenti is the
defence of consent and operates as a complete defence in appropriate cases and is not confined to any particular tort,
although, like contributory negligence is frequently raised in the case of negligence claims. If deemed appropriate the
effect of the defence is that no compensation is payable to the claimant.
The conditions of the defence should be explored: Voluntary assumption of known risks. Were the risks understood
(Smith v Baker; ICI v Shatwell)? Can children consent to harm? What about sportsmen and sportswomen (Condon v
Basi)? What about rescuers (Chadwick v British Railways Board)? Candidates should recognise that unlike volenti,
contributory negligence is only a partial defence which has the effect of reducing the amount of damages payable in
accordance with the claimant’s own degree of fault (Law Reform (Contributory Negligence) Act 1945). Candidates
must analyse what amounts to contributory negligence. Did the claimant take reasonable care for his own safety
(Jones v Livox Quarries)?
Was the claimant’s action reasonable (Sayers v Harlow UDC)? What about children (Gough v Thorne)? Candidates
must analyse the two defences and assess the degree of similarity and contrast between them. Responses that are
limited to factual recall, however detailed, will be restricted to band 3 marks

Describe the purpose of compensatory damages in tort. Assess the

extent to which the award of compensatory damages can provide
justice to the parties.

This question requires candidates to describe the rules relating to the

common law remedy of damages in tort.
Candidates should explain the meaning and purpose of damages and then
address the assessment element of the question.
Potential Content
• Compensatory damages – meaning
• Pecuniary and non-pecuniary damages
• Mitigation of damages
• Cases involving death
• Lump sum payments
Relevant case law should be used to support the explanations.
Candidates should then consider the issue of whether the award of
damages can provide justice to the parties.
Potential Content
• Difficulties of calculating losses – past and future
• Issue of fault
• Loss of amenity/pain and suffering
• Problems with lump sum payment
• Idea of clean break with single payment
Candidates should attempt to reach a reasoned conclusion

Pecuniary and non-pecuniary losses are treated differently in tort.

Discuss the approaches of courts in assessing compensation claims in tort and explain
why they are considered necessary.

Candidates might preface responses by explaining that when making awards of damages in tort,
the courts may have aims other than the general one of compensating victims. In addition,
candidates should introduce and explain the concept of pecuniary and non-pecuniary losses and
provide suitable examples of each.
Case law should be investigated to demonstrate how judicial approaches differ when losses are
pecuniary or non-pecuniary. The method of calculating pecuniary losses could be explored and
contrasted with the guidelines produced by the Judicial Studies Board for the calculation of nonpecuniary
losses.
Candidates might go on to explore awards of non-compensatory damages and explore the
circumstances under which nominal, contemptuous, aggravated or exemplary damages might be
awarded in tort.
Purely descriptive responses without the requisite evaluation will be limited to marks within band
3.

If claimants are partly responsible for the harm done to them, any compensation sought
may be reduced to take account of their degree of fault.
Trace developments in statute and case law that have contributed to the present day
approach to awards of damages in negligence cases. To what extent do you consider this
approach to be satisfactory?

The focus of this question is the partial defence of contributory negligence.

Up until 1945, any fault on the part of a complainant would have totally negated any claim made
in negligence, however little the part that the complainant had actually played in the incident
giving rise to the action. The Law Reform (Contributory Negligence) Act 1945 now provides that
such claims need not fail; damages can simply be reduced in accordance with the complainant’s
own degree of fault.
Many of the cases on contributory negligence in negligence actions concern accidents (e.g.
Baker v Willoughby, Brannon v Airtours plc), but candidates should be aware that it could equallywell
apply to economic loss cases (e.g. Cavendish Funding Ltd v Henry Spencer & Sons Ltd),
should a complainant have failed to take reasonable care of his own economic interests.
Candidates should clarify that, if a claimant is not to be found contributorily negligent, he must
have conducted himself appropriately, as judged against the same standard of care as expected
of the defendant in the particular circumstances. It is an objective standard, with allowances
made for children and disability if it would make it impossible for the standard to be reached.
Issue re account taken of child’s age and development. Children develop at different rates and do
get treated differently by the courts as a consequence – unsatisfactory state of affairs? Cases
such as Yachuk v Oliver Blais Co Ltd and Evans v Souls Garage might be explored and
contrasted.
Issue re fault calculations. How can degree of fault be accurately and fairly assessed? For
instance, in Baker v Willoughby, the complainant’s degree of fault was assessed differently at first
instance and on appeal!
Responses that attempt no assessment in terms of fairness etc. as required by the question will
be limited to maximum marks within mark band 3.

The aim of damages is to compensate the victim. Discuss.

Damages in tort are intended to put the claimant in the position they would have enjoyed if the
tort had never been committed; the aim of damages in tort is to compensate claimants rather than
to punish defendants.
Candidates might start by discussing the principle of restitutio in integrum and then go on to
discuss how damages in tort are calculated and awarded. Candidates ought to highlight decided
cases that reveal problems associated with such calculations (e.g. Gardner v Marsh, South
Australia Management v York Montague Ltd, Doyle v Wallace, Langford v Hebran etc.) and then
go on to discuss the extent to which compensation takes or fails to take account of degrees of
fault involved in defendants’ actions. Astute candidates will identify the fact that those who make
momentary slips commonly end up paying the same damages as those showing gross
carelessness, for instance.
Candidates must attempt to critically evaluate the statement. Responses limited to factual recall
of principle will be restricted to maximum marks within band 3.

An award of damages in tort is based on the principle of restitutio in integrum (restitution

in full). Critically assess the extent to which this aim of the principal remedy in tort is
achieved.

An award of damages in tort aims to compensate claimants for actual losses suffered; restitutio in
integrum means restoration in full and the aim is to put a claimant in the position (s)he would
have been in had the tort not been committed. Restoration in full may necessitate awards of
general damages for losses arising naturally from the tort and special damages which have been
claimed in particular because the loss is not a natural result of the tort in question.
Pecuniary and non-pecuniary losses may be subject to an award of damages. The former, which
are financial, are easier to calculate than the latter, but even when losses are purely financial, the
issue of what amounts to restitutio in integrum is not always straightforward; disagreements
between first instance and appeal decisions were very evident in Gardner v Marsh & Parsons and
South Australia Asset Management Corporation v York Montague Ltd. Issues of overcompensation
also arise (Parry v Cleaver; Longden v British Coal) as does the issue of lump sum
payments in cases where the true effects of a loss are not felt until after an award has been
made (Pearson Commission (1978) recommendations might be referred to here).
Fault ought also be discussed. Compensation by way of damages does not take degree of fault
into account.
Candidates are expected to draw clear conclusions, summing up with a concise assessment of
how far they feel that the aim of restitutio in integrum is achieved. Some critical analysis is
necessary to achieve Band 4 or 5.

Describe the different types of damages available in tort and assess

the extent to which a single lump sum payment can provide adequate
compensation for the claimant.

This question concerns the common law remedy of damages. Candidates

should describe the different types of damages which are available.
Potential Content
• Purpose of damages
• Pecuniary damages
• Non-pecuniary damages
• Factors considered by the court
• Calculation of losses
• Lump sum payment
Relevant case law should be used to support the explanation of the law.
Candidates should then examine the specific issue raised in the question
and assess whether the lump sum payment can provide adequate
compensation.
• Advantages of the lump sum payment – clean break
• Problems with the single lump sum
• Establishing the special relationship
• Recommendations for reform – alternative approaches
• Structured payments
Candidates should attempt to come to a reasoned conclusion and therefore
answer the question asked.
Critical analysis is required to achieve the higher mark bands.

‘Willing participants in activities can never be victims in tort.’

Using illustrative case law, assess the truth of this view.

Candidates are expected to identify the question as relating to a defence in tort known as volenti
non fit injuria. Better candidates will translate the Latin as meaning “to one who is willing (volenti),
actionable harm (injuria) is not done (non fit)”. Commonly known as the defence of consent,
which is of general application within the law of tort. Thus if it can be established that the
complainant consented, the defendant will not be liable.
Objective test established: was the outward behaviour of the complainant such that it is
reasonable for the defendant to conclude that he consented to the risk that he undertook?
Difficulty arises, however, because it is frequently clear that a person knows of a risk, but is not
conclusive proof that consent was actually given. Cases such as Smith v Baker (1891), ICI v
Shatwell (1965) and Kirkham v Chief Constable of Greater Manchester (1990) should be
referenced as examples.
Special cases such as sporting activity and rescue cases in the tort of negligence should also be
explored and better candidates might also be expected to reference S1(6) Occupiers Liability Act
(1984).

The defence of volenti non fit injuria (consent) requires both knowledge and a full
understanding of the nature of the risk of harm.
With reference to decided cases, evaluate this statement.

Candidates should explain the meaning of volenti non fit injuria and describe the elements which
must be established in order for the defence to succeed. This explanation should be supported by
reference to decided case law.
Candidates should then analyse the specific point raised by the question.
In relation issue of ‘knowledge and a full understanding’ – candidates should examine what this
means – in particular whether the claimant had been informed properly of the risk in question. Is
the risk one which is well known in relation to a particular activity? Candidates should comment
on the situation where there is knowledge and understanding but the claimant has little choice but
to take the risk – in the context of employment for example. In addition the candidate could use
the example of a claimant who was acting under a legal duty and therefore has no choice but to
take the risk – as in Haynes v Harwood.
Candidates should then address the question and evaluate the statement, reaching a reasoned
conclusion as to whether it is accurate.

The law of negligence has various aims: the compensation of victims of harm, identifying
who is at fault, the deterrence of carelessness and spreading the costs of harm caused by
carelessness. Critically assess the extent to which each of these aims is met by the law.

Compensating victims of harm: only a small proportion of victims receive compensation. Reasons
should be explored.

Possible reasons:
– harm caused, but in circumstances such that no-one can be blamed
– fall outside scope of rules (e.g. psychiatric injury or economic loss)
– chance of court success slim and costs heavy so no action taken
Marking fault: the basis of law of negligence is essentially moral. Is this still the case, or do the
economic effects of decisions now frequently play a greater role?
Deterring carelessness: does the existence of insurance now mean that carelessness is no
longer deterred? Are the rules so complicated and at times vague that tortfeasors pay little
attention and thus the law of negligence merely serves to mop up after the event?
Spreading risk: some success is apparent in this area (e.g. Smith v Eric Bush), but it is clear that
when insurers cover losses, it is the public that ultimately bears the cost in the form of increased
premiums!
Responses that attempt to demonstrate no critical assessment as required by the question, will
be limited to the maximum marks allocated within Band 3.

The Airspeed Pageant is an annual air display that takes place in the skies over Casterbridge and is organised
by the local aero club to raise sponsorship for the National Museum of Aviation nearby. Biggles was
mistakenly given permission to land by the aero club’s air traffic control tower and as his 1930s aircraft
approached the grass airstrip Biggles noticed that another aircraft had only just landed in front of him. He had
to take avoiding action and on landing one of the tyres punctured and the aircraft spun out of control into
crowds that had gathered to watch. Several spectators were killed and many more seriously injured. Biggles
survived the incident, but had to be cut from the wreckage and lost both legs as a consequence of his
injuries. Discuss whether or not the club might successfully defend any action taken against them by Biggles,
by those injured or by representatives of those killed in the incident.

Candidates are expected to contextualise by briefly outlining the basic principles of negligence:
duty of care, breach of duty and resultant loss. Candidates who go no further than this will receive
maximum marks within band 3.
Attention must then be switched to a defence in tort known as volenti non fit injuria. Better
candidates will translate the Latin as meaning “to one who is willing (volenti), actionable harm
(injuria) is not done (non fit)”. Commonly known as the defence of consent, which is of general
application within the law of tort. Thus if it can be established that the complainant consented, the
defendant will not be liable.
Objective test established: was the outward behaviour of the complainant such that it is
reasonable for the defendant to conclude that he consented to the risk that he undertook?
Difficulty arises, however, because it is frequently clear that a person knows of a risk, but is not
conclusive proof that consent was actually given. Could this be so in Biggles’ case, or was it a
risk that arises from the very nature of his work/hobby? Cases such as Smith v Baker (1891), ICI
v Shatwell (1965) and Kirkham v Chief Constable of Greater Manchester (1990) should be
referenced as examples.
Relating the principles to the case of the dead and injured, candidates will need to conclude
whether mere attendance at such an event was evidence of consent to associated risks or not.

Willing participants never suffer harm which is actionable in tort.

With reference to case law, critically analyse the extent to which the defence of volenti non
fit injuria is an effective defence to actions brought in a variety of torts. [25]

Candidates are expected to identify the crux of this question as the general defence in tort
commonly known as consent. If it can be established that the complainant truly consented to the
risk or situation which resulted in the act complained of, the defendant will not be liable.
Candidates should recognise the objective test established: was the outward behaviour of the
complainant such that it is reasonable for the defendant to conclude that he consented to the risk
that he undertook? Difficulty arises, however, because it is frequently clear that a person knows
of a risk, but is not conclusive proof that consent was actually given.
Special cases such as sporting activity and rescue cases in the torts of negligence and trespass
to the person might also be explored where the injuries sustained as a consequence of deliberate
or negligent acts.
In negligence, cases such as Smith v Baker, ICI v Shatwell, and Kirkham v Chief Constable of
Greater Manchester might be considered. In trespass, In the case of trespass to the person, Herd
v Weardale Steel Coke and Coal Co, Collins v Wilcock and Nash v Sheen might be specifically
referenced as examples.
Candidates must attempt an analysis of the statement. Responses limited to factual recall of
principle will be restricted to maximum marks within band 3.

Solid Build is contracted to construct a new City Hall for Birmingham City Council and has agreed to complete
the work by 1 December. While Solid Build carries out the groundwork in preparation for building to start,
mains water pipes are broken and a number of city centre businesses have to close for several days until
water supplies can be restored to them.
Solid Build did obtain maps showing all the underground services in the area (gas, electricity, water and
telephone), but the mains water pipes that were damaged were not marked on them. The project gets more
and more delayed and costs begin to rise steeply. Solid Build decides to bring in bigger construction
machinery than planned in order to get the job finished more quickly and make savings.
Unfortunately, the new machinery is much noisier. The increased noise levels cause Gina, who works from
home in a block of apartments adjacent to the building site, to suffer almost permanent stress headaches.
When vital safety equipment fails to arrive on site on schedule, Stan, who is employed by Solid Build, agrees
to carry out high level scaffold erection work without having the equipment to protect himself because he
fears that he will be dismissed if he refuses to do so. Stan falls whilst doing the work and sustains multiple
fractures.
What general defences in tort might Solid Build raise against actions brought by the city centre businesses,
Gina and Stan? With reference to decided cases, discuss the likely success or failure of those defences

General defences are those that can be raised in respect of more than one tort as opposed to
specific defences peculiar to individual torts.
In the first instance, there has been an apparent negligent act as water pipes are broken and the
water supply to city centre businesses is cut. A duty of care, breach of that duty and resultant loss
would need to be established before liability in negligence can result. On the face of it, the facts
would appear to speak for themselves (res ipsa loquitur). However, Solid Build could plead
inevitable accident as a defence to the claims of the city centre businesses. By definition, an
accident is deemed inevitable if, in all the circumstances of the case, it was one that the
defendant could not have avoided however much care they took. This would appear applicable
here as maps had been obtained, but the pipes were not shown on those available for reference.
In the second incident, private nuisance would appear to be at issue. Was there an
unreasonable, indirect interference with a person’s use or enjoyment of land in their possession?
Apparently so. The engineering company may well try to use the defence of necessity in this
case. However this defence is only available to those situations where the tort is inflicted out of
necessity in the sense that it saves greater loss to the claimant that would otherwise be suffered.
In this case, it would appear that the loss being saved is not the claimant’s but the defendant’s
and hence such a defence is destined to fail (Andreae v Selfridge).
The final incident raises the issue of the defence of consent or volenti non fit injuria. Claims will
fail if defendants can prove that claimants voluntarily assumed risks which resulted in losses
suffered. As an employee, did Stan volunteer or did he merely accept the risk for fear of action
against him by his employer if he refused (Bowater v Rowley Regis Corporation)?
In the event of candidates discussing the possible torts rather than the potential defences,
maximum marks to the middle of band 3 might be awarded. The principles must be applied to the
scenarios and clear, compelling conclusions drawn.

Legal action is not always necessary in order to protect oneself against a tort.
Using examples from a range of torts, discuss the extra-judicial remedy of self help which
is available to a claimant and critically assess its virtue and limitations. [25]
It is true to say that it is not always necessary to take legal action to protect against torts or to put
right damage done by a tort.
Candidates are expected to explore different situations where such remedies are available.
Examples that could be selected are as follows:
• In trespass to land – the right to exert reasonable force to eject a trespasser from one’s land
or to keep them out in the first place.
• In trespass to land – the right to re-enter land in the wrongful possession of another.
• In trespass to goods – the right to take back chattels in possession of another with
reasonable force if necessary.
• In trespass to the person – the right of self defence.
• In nuisance – the right to abate a nuisance by, for example, cutting branches from a
neighbour’s tree that overhang a boundary and interfere with use of land.
In each example selected, the candidate is expected to describe the remedy as applicable,
explain its application and state the benefits to the injured party. The pitfalls of exercising such
remedies, such as running the risk of breaking the law in doing so must be highlighted.

Contributory negligence and volenti non fit injuria are so similar in nature and effect that it
is unnecessary for both defences to exist.
Critically analyse the defences and discuss the extent to which you agree with this
statement. [25]

Candidates should define the two terms and then go to discuss their respective features as
remedies.
Volenti is the defence of consent and operates as a complete defence in appropriate cases and is
not confined to any particular tort, although, like contributory negligence is frequently raised in the
case of negligence claims. If deemed an appropriate defence, the effect is that no compensation
is payable to the claimant.
The conditions of the defence should be explored: Voluntary assumption of known risks. Were
the risks understood (Smith v Baker; ICI v Shatwell)? Can children consent to harm? What about
sportsmen and sportswomen (Condon v Basi)? What about rescuers (Chadwick v British
Railways Board)?
Candidates should recognise that unlike volenti, contributory negligence is only a partial defence
which has the effect of reducing the amount of damages payable in accordance with the
claimant’s own degree of fault (Law Reform (Contributory Negligence) Act 1945).
Candidates must analyse what amounts to contributory negligence. Did the claimant take
reasonable care for his own safety (Jones v Livox Quarries)? Was the claimant’s action
reasonable (Sayers v Harlow UDC)? What about children (Gough v Thorne)?
Candidates must analyse the two defences and assess the degree of similarity and contrast
between them. Responses that are limited to factual recall, however detailed, will be restricted to
band 3 marks.

It is fair and just to reduce the amount of compensation awarded to a plaintiff in order to
reflect their contribution to the damage suffered. Critically evaluate this statement.

The focus of this question is the partial defence of contributory negligence.

Up until 1945, any fault on the part of a complainant would have totally negated any claim made
in negligence, regardless of how little the complainant had actually played a part in the incident
giving rise to the action. The Law Reform (Contributory Negligence) Act 1945 now provides that
such claims need not fail; damages can simply be reduced in accordance with the complainant’s
own degree of fault.
Many of the cases on contributory negligence in negligence actions concern accidents (e.g.
Baker v Willoughby, Brannon v Airtours plc), but candidates should be aware that it could equallywell
apply to economic loss cases (e.g. Cavendish Funding Ltd v Henry Spencer & Sons Ltd),
should a complainant have failed to take reasonable care of his own economic interests.
It is an objective standard, with allowances made for children and disability if it would make it
impossible for the standard to be reached.
Candidate could explore the issue of taking account of a child’s age and development. Children
develop at different rates and do get treated differently by the courts as a consequence –
unsatisfactory state of affairs? Cases such as Yachuk v Oliver Blais Co Ltd and Evans v Souls
Garage might be explored and contrasted.
Candidates could also explore the issue of fault calculations. How can degree of fault be
accurately and fairly assessed? Reference could be made to cases such as Bake v Willoughby
here.

Describe the purpose of the remedy of damages in relation to the tort of

negligence. Assess the extent to which the current rules achieve justice
for the claimant.

Candidates should explore the issue of the purpose of damages in tort and in
particular in relation to the tort of negligence– to put the claimant in the
position they would have been in had the tort never occurred.
Potential content:
 Compensatory damages
 Special damages
 General damages
 Damages in relation to death
 Methods of calculation
 Lump sum v structured payments
Candidates should then address the issue raised by the question – can
damages achieve justice for the claimant.
This requires an assessment of the issue raised in the question. Do the
current rules provide justice for the claimant?
Potential content:
 Difficulty of speculation
 A false remedy – harm cannot be repaired or undone?
 Difficulty of assessing pain and suffering
 Problems with the lump sum
Candidates should try to reach a reasoned conclusion which addresses the
key issue of justice for the claimant

The courts use different approaches when assessing pecuniary and non-pecuniary losses
suffered by claimants in tort. Discuss these various approaches.

Candidates might preface responses by explaining that when making awards of damages in tort,
the courts may have aims other than the general one of compensating victims. In addition,
candidates should introduce and explain the concept of pecuniary and non-pecuniary losses and
provide suitable examples of each.
Case law should be investigated to demonstrate how judicial approaches differ when losses are
pecuniary or non-pecuniary. The method of calculating pecuniary losses could be explored and
contrasted with the guidelines produced by the Judicial Studies Board for the calculation of nonpecuniary
losses.
Candidates might go on to explore awards of non-compensatory damages and explore the
circumstances under which nominal, contemptuous, aggravated or exemplary damages might be
awarded in tort.

It is impossible to eliminate the risk of the potential overcompensation or

undercompensation of claimants.
Examine the courts’ current approach to awards of damages in the tort of negligence and
assess the validity of this statement.

Candidates should introduce the concept of damages in the tort of negligence, with reference to
the aim of damages in this context. Candidates could then outline the different heads of damages
– special and general – and refer to relevant cases or examples in the explanation.
Candidates should engage in an evaluation of the current approach to damages in the context of
the question. Issues such as the difficulty of predicting future expenses and losses should be
discussed. In addition the issues regarding the awarding of a lump sum to the claimant (rather
than periodic payments) should be considered.
Candidates should be credited for considering alternatives to the current approach and also for
identifying potential difficulties with such alternatives.
Responses which are descriptive only will be limited to Band 3.
Awards of damages in tort do not provide just remedies to all claimants in all
circumstances.
Critically examine the truth of this view and the extent to which you agree. [25]

Damages in tort are intended to put the claimant in the position they would have enjoyed if the
tort had never been committed; the aim of damages in tort is to compensate claimants rather than
to punish defendants.
Candidates might start by outlining the role of general and special damages before moving on to
discuss the principle of restitutio in integrum and how damages in tort are calculated and
awarded. Candidates ought to highlight decided cases that reveal problems associated with such
calculations (e.g. Gardner v Marsh, South Australia Management v York Montague Ltd, Doyle v
Wallace, Langford v Hebran etc.) and then go on to discuss the extent to which compensation
takes or fails to take account of degrees of fault involved in defendants’ actions. Astute
candidates will identify the fact that those who make momentary slips commonly end up paying
the same damages as those showing gross carelessness, for instance.
Candidates must attempt to critically evaluate the statement. Responses limited to factual recall
of principle will be restricted to maximum marks within band 3.
David was the driver of a car that swerved to avoid a large deer that leapt into the road in front of him.
Consequently his car collided with George’s oncoming van. George sustained severe spine and head injuries
and is now unable to work again and has to live on state benefits for the remainder of his life. George
commences proceedings in negligence against David pleading res ipsa loquitur (the facts speak for
themselves). David responds by alleging that he had had to swerve to avoid the deer. Consider the reported
facts of the above case. Explain (a) how the plea of res ipsa loquitur and David’s explanation might influence
the proceedings in an action for negligence and (b) how damages might be assessed against David if he is
found liable.

Candidates should introduce their responses with a brief explanation of the elements of
negligence and that ordinarily in negligence cases, there is a formal or legal burden placed on a
claimant to prove that the accident was caused by the negligence of the defendant. It should
then be explained that the maxim of res ipsa loquitur allows claimants to succeed in actions for
negligence even when there is no evidence as to what caused the accident and whether it is in
fact attributable to the defendant’s negligence (Scott v St Katherine’s Docks Co). However, if a
set of facts concerning the accident infers that the defendant has been negligent (Byrne v
Boadle), the defendant will simply be held liable unless (s)he can provide evidence to rebut the
evidence inferred by the circumstances of the case, in which case the burden of proof shifts back
to the claimant (Ng Chun Pui v Lee Chuen Tat).
Candidates should discuss briefly the criteria for a successful plea of res ipsa loquitur: that at
material times, the thing causing harm was under the defendant’s control, that the incident is one
that could only have been caused by negligence and that the cause of the incident is not known
and there is no other obvious explanation.
As regards George’s claim for damages, candidates need to discuss the concept of remoteness
of damage and the issue of whether George’s loss was a reasonably foreseeable consequence
of David’s negligence and the potential measure of damages which the defendant may be liable
for. The receipt of state benefits suggests an act of mitigation, so candidates might correctly
conclude that the sum received in benefits would be deducted from any award granted.

Breach of tort would ordinarily be compensated by an award of damages. Using decided

cases to illustrate your response, analyse when a court might make a non-compensatory
aware of damages instead.

Damages in tort are intended to put the claimant in the position they would have enjoyed if the
tort had never been committed; the aim of damages in tort is to compensate claimants rather than
punish defendants. However, in some cases, damages may be awarded for other reasons, and
this may result in the award being more or less than what isrequired to directly compensate for
the loss suffered by the claimant.
Candidates should identify and explain the purpose of the various types of non-compensatory
award: contemptuous, nominal, aggravated and exemplary damages and analyse circumstances
when they may be awarded. Case law examples should be used wherever possible to illustrate
the purpose of the award, and to evaluate the extent to which the purpose was achieved.
Examples (non-exhaustive) might include Constantine v Imperial London Hotels, Khodaparast v
Shad, Rookes v Barnard etc. Limitations on the use of exemplary awards should also be
addressed.
Candidates must attempt an analysis as requested by the question. Responses limited to factual
recall of principle will be restricted to maximum marks within Band 3.

The aim of the compensation award in tort is expressed in the maxim restitutio in
integrum (restitution in full).
Critically examine the extent to which this aim is achieved
Damages in tort are intended to put the claimant in the position they would have enjoyed if the
tort had never been committed; the aim of damages in tort is to compensate claimants rather than
to punish defendants.
Candidates might start by outlining the role of general and special damages before moving on to
discuss the principle of restitutio in integrum and how damages in tort are calculated and
awarded. Candidates ought to highlight decided cases that reveal problems associated with such
calculations (eg Gardner v Marsh, South Australia Management v York Montague Ltd, Doyle v
Wallace, Langford v Hebran etc.) and then go on to discuss the extent to which compensation
does achieve the aim of restitution in full. Candidates could discuss issues such as the difficulties
associated with a one off lump sum payment and the difficulties involved in calculating future
losses and pain and suffering. Candidates could consider possible reforms such as structured
payments.
Candidates must attempt to critically evaluate the statement. Responses limited to factual recall
of principle or which concentrate on will be restricted to maximum marks within band 3.
Explain the terms general and special damages
 A claimant who successfully proves his case in negligence will be entitled to a remedy. Damages are one form of
remedy.
 Damages aim to place the claimant, where possible, in the same position as if the tort had never happened. Not
always possible for serious, life changing injuries.
 Damages can be divided into general and special damages:
o Special damages – These comprise quantifiable financial losses up to the date of trial and are assessed separately
from other awards because the exact amount to be claimed is known at the time of the trial.
The major types of damages are as follows:-
• Loss of earnings.
• Medical Expenses.
• Expenses to cover special facilities.
o General damages - This term covers all losses that are not capable of exact quantification and they are further
divided into pecuniary and non -pecuniary damages.
• Pecuniary damages - The major type of pecuniary damages is future loss of earnings. The courts calculate this
amount using the multiplicand (a sum to represent the claimant’s annual net lost earnings) and the multiplier (a
notional figure that represents a number of years for which the claimant was likely to have worked). These are
multiplied together in order to calculate the future losses.
• Non-pecuniary damages – pain and suffering, loss of amenity, damages for the injury itself.

Explain the types of compensatory damages available in tort.

Answers may include the following:

 The aim of compensatory damages is to put the claimant in the same position that he/she would have been had the
tort not taken place
 Compensatory damages are intended to compensate the claimant for loss or injury

 There are two types of losses which may be claimed for:

o Pecuniary damages - these can be calculated in financial terms e.g. pre-trial expenses, loss to property, medical
treatment, and future losses, for example, loss of earnings.
o Non-pecuniary - these are more difficult to calculate and include associated losses provided they are foreseeable
e.g. pain and suffering and loss of amenity. Case examples might include: British Transport Commission v Gourley,
Dews v National Coal Board, Pickett v British Rail Engineering Ltd, Lim Poh Choo v Camden and Islington AHA, Smith
v Manchester Corp, Heil v Rankin and another and Others Appeals, Wise v Kaye, West & Son v Shephard

 Types of damages:
o Nominal damages - awarded where no actual damage or loss suffered but the tort has taken place
o Special damages - these cover out of pocket expenses incurred from the date of the accident to the date of the
judgment. These may include, for example, loss of wages, travel to and from hospital, additional medical expenses.
o General damages - these cover post-trial losses. These damages are complicated to calculate but may also cover
future medical care and personal assistance, future loss of earnings.
Case examples might include: Doyle v Wallace, Cooke v United Bristol Healthcare NHS Trust; Sheppard v Stribbe and
another; Page v Lee, Collett v Smith and Middlesbrough Football Company. Rookes v Barnard, AB v South West
Water Services Ltd, Broome v Cassell

 Types of payment:
o Lump sums – once only award for pain and suffering/loss of amenity. The claimant cannot go back to court to say
that they have exhausted the damages.
o Structured settlements – the Damages Act 1996 allows for structured settlements where the parties who settle a
claim agree that all or part of the damages can be paid as periodical payments. It can be for life or for a specific period
and the amount can be reassessed at intervals.
Credit any other relevant point(s)

Analyse and evaluate the different types of damages in the law of negligence
The response might consider issues such as:
• Damages in a negligence case are compensatory
• Purpose is to put the claimant in the position he/she would have been in had the negligent event not occurred
• Actual losses and future losses can be compensated
• Mitigation of loss must be considered
• Two types of damages:
Special damages
o Compensation for the financial losses incurred up to the date of the trial
o Things that can be given an exact figure: medical expenses, prescriptions, loss of earnings o Deductions made so
claimant does not profit
o Calculation for special damages
o Evaluation of the extent to which this compensates adequately General damages
o Pain, suffering and loss of amenity
o Non-pecuniary damages
o Judicial guidelines
o Awards where victim is a child – Giambrone v JMC Holidays 2002
o Loss of future earnings
o Evaluation of the extent to which this compensates adequately
Methods of payment of damages

Chris, a chemistry teacher, liked making his own fireworks. He took a firework he had just
finished to show his neighbour Ben, who invited Chris into his living room. Chris put the
firework on Ben’s coffee table so that they could admire it. Unfortunately, the fuse on the
firework was not secured properly and the firework exploded, wrecking the living room and
severely injuring Ben who can no longer work and requires constant care. His life
expectancy is greatly reduced as a result. The explosion also damaged an expensive
painting hanging on the wall in the living room, which cost £3,000 to repair. In addition, the
cost of repairing the living room was £10,000.
(d) Assume that Chris was found liable in negligence. Advise Ben how the court
would calculate his award of damages.

The response might consider issues such as:

• Explanation of the calculation of damages
• Aim of damages in tort
• General and special damages; pecuniary and non-pecuniary
• Damage to property + expenses incurred, loss of future earnings, loss of amenity, pain
and suffering
• Structure of awards (lump sum or structured settlement)
• Application to Barry - General damages – personal injury , pain and suffering, loss of
amenity
• Special damages stated for damage to kitchen (£10 000) and oil painting (£3000) if not
too remote
• Possible reference to special damage payable as lump sum, general damages likely to
be agreed as structured settlement given nature of injuries

Consent to risk is fundamentally different from knowledge of risk.

Using appropriate case law to illustrate your answer, critically analyse the above
statement with regard to defences in tort.

Candidates are expected to identify the question as relating to a defence in tort known as volenti
non fit injuria. Better candidates will translate the Latin as meaning “to one who is willing
(volenti), actionable harm (injuria) is not done (non fit)”. Commonly known as the defence of
consent, which is of general application within the law of tort. Thus if it can be established that
the complainant consented, the defendant will not be liable.
Objective test established: was the outward behaviour of the complainant such that it is
reasonable for the defendant to conclude that he consented to the risk that he undertook?
Difficulty arises, however, because it is frequently clear that a person knows of a risk, but there is
not conclusive proof that consent was actually given. Cases such as Smith v Baker, ICI v
Shatwell) and Kirkham v Chief Constable of Greater Manchester should be referenced as
examples.
Special cases such as sporting activity and rescue cases in the tort of negligence should also be
explored and better candidates might also be expected to reference S1(6) Occupiers Liability Act
(1984).

Explain the defence of contributory negligence and assess whether it

achieves fairness between claimants and defendants.

This question concerns the defence of contributory negligence. Candidates

are required to explain the defence and evaluate the elements required for it
to be used successfully. An outline of the elements of negligence may be
credited, a detailed account is not required.
Potential content:
• A partial defence – Law Reform (Contributory Negligence) Act 1945
• Apportionment of fault
• Reduction of damages
• Lack of care by claimant
• Lack of care contributes to damage
• Children
• Overlap with other defences.
Relevant case law should be used to support the explanation of the rules.
Candidates should then evaluate aspects of the defence.
Potential content:
• Difficulty of assessing claimants contribution
• Issues with causation
• Fairness of apportionment of fault
• Excessive reduction of damages.
Critical analysis is required to achieve the higher mark bands.

Explain the elements of the defence of volenti non fit injuria (consent)
and assess whether it is of limited application.

This question requires candidates to explain the rules relating to the defence
of volenti and assess whether it is of limited application in the law of tort.
Potential Content
• Meaning of volenti non fit injuria
• A complete defence
• Essential elements
• Voluntary agreement
• Full knowledge
• Application
• Sport
• Employment
• OLA
Relevant case law should be used to support the explanations.
Candidates should then consider the issue of whether the defence is of
limited application.
Potential Content
• Overlap with contributory negligence
• Issues in employment cases
• Issues in sport cases
• Issues with rescuers
Candidates should attempt to reach a reasoned conclusion

The aim of damages is to restore the claimant to the position that he or

she would have been in if the tort had not occurred.
Explain the types of damages available in a claim for negligence.
Assess the extent to which the aim above can be achieved.

This question concerns the remedy of damages.

Potential Content
• Types of damages
• General and Special damages
• Pecuniary and non-pecuniary damages
• Lump sum or structured settlement
Candidates should then address the assessment element of the question
and reach a coherent conclusion as to whether the statement is valid.
Potential points of discussion include:
• Difficulty of calculating future losses
• Difficulty of assessing pain and suffering
• Loss of amenity – how to quantify
• Interest – impact on the award
• Issues with deductions
Critical analysis is required to achieve the higher mark bands

Describe the purpose of a damages award in tort and assess whether

damages can provide an adequate remedy.
Candidates should explore the issue of the purpose of damages in tort – to
put the claimant in the position they would have been in had the tort never
occurred. The following points can be credited:
• The element of speculation
• Risk of over/under compensation
• Types of damages – special/general
• Issues related to calculation
• Lump sum v structured payments
• Damages related to death
Candidates should then address the issue raised by the question – can
damages provide an adequate remedy for the claimant? This requires a
critical analysis of the topic – from the issue of speculation and the artificial
nature of the remedy to the practical issues around calculating future losses
and placing a value on pain and suffering.

Explain and evaluate the factors which must be considered when

deciding whether a claimant has consented to the risk of harm in tort.

This question concerns the defence of consent (Volenti non fit injuria) which
is a general defence in tort. If pleaded successfully it provides a complete
defence for a defendant.
Candidates should explain the elements required to establish the defence,
including:
• Knowledge of the risk
• Understanding of the nature of the risk
• Consent which is freely given
• Use of the defence in negligence
• Use of the defence in trespass to the person
Candidates should then address the critical analysis element of the question.
Potential points of discussion include:
• Knowledge v understanding of a risk
• Lack of choice – employment situations
• Lack of choice – duty to act
• Consent and sport
• Consent in medical treatment

Explain the purpose of damages in the law of tort and assess the
factors considered by a court when calculating the amount of
damages to be awarded.

This question concerns the remedy of damages. Candidates should explain

the purpose of damages in tort and how the award is calculated by the
court, including:
• Aim is to put the claimant in position they would have been in had the
tort no occurred
• Types of damages – compensatory/non-compensatory
• Special and general damages
• Method of calculation
• Lump sum
Candidates should then consider whether the purpose of damages in tort
can actually be achieved. Issues which could be considered include:
• Speculative nature of damages
• Difficulty of calculating future losses
• Pain and suffering
• Problems with the lump sum
• Damages relating to death

Explain and evaluate the range of remedies available in tort.

This question concerns the remedies available in the law of tort.

Candidates should consider the remedies of damages and injunction.
Candidates should explain the meaning of damages and consider the
purpose of damages in the law of tort. Credit can be awarded for a
consideration of any of the following:
• Purpose of compensatory damages
• Types of compensatory damages
• Method of calculation of compensatory damages
• Purpose of non-compensatory damages
• Types of non-compensatory damages
Candidates should then examine the use of the injunction in the law of tort.
Credit should be awarded for a discussion of any of the following:
• Purpose of the injunction
• Different types of injunction
• Factors considered by the court when awarding an injunction
Candidates should consider the use of both remedies and should be credited
for any discussion as to the relative importance and use of the remedies.
If a candidate explains and evaluates one remedy only this can be credited as
band 4.

The award of damages in tort involves a high level of uncertainty.

Explain and critically evaluate how damages in tort are assessed.

This question requires candidates to examine the aim of the damages

award in tort.
Candidates should explain that damages is a sum of money which is meant
to compensate the claimant. The purpose of the award in tort is to put the
claimant in the position they would have been in if the tort had not occurred.
Candidates can then proceed to explain how the award of damages in tort is
made up of both special damages and general damages. Each of these
should be explained.
Candidates must address the issue raised in the question – that damages in
tort is speculative and therefore the aim of damages in tort is difficult to
achieve.
Candidates should identify particular challenges in terms of predicting future
losses, calculating future earnings, awarding a sum for pain and suffering
and the use of the lump sum payment,
Explanation only will be confined to Band 3. In order to achieve the higher
bands the candidate must address the key issue raised in the question.

Equitable remedies are of limited relevance in the law of tort.

Critically evaluate this statement.

This question requires candidates to explain the equitable remedies in tort.

The focus of the question is therefore the injunction.
Candidates can introduce the idea of an equitable remedy – as being derived
from the Court of Chancery – and explain how the purpose of the equitable
remedy is to operate where an award of damages would be inadequate. A
detailed account of damages is not required here and should not be credited.
Some credit can be awarded where the remedy of damages is compared or
contrasted with the equitable remedies.
Candidates should then explain what an injunction is, examine the different
types of injunction – prohibitory, mandatory and interlocutory
Candidates should then address the issue raised in the question – are
equitable remedies, specifically the injunction of any relevance? Candidates
should discuss the areas of tort law where the injunction is most likely to be
used e.g. private nuisance and trespass to land. In this way candidates can
come to a coherent conclusion as to whether the remedy is still of relevance
in the law of tort.
If the answer is explanation only the mark will be confined to Band 3.

Compare and contrast the defences of volenti non fit injuria (consent)
and contributory negligence.

This question concerns the defences of volenti and contributory negligence.

Candidates should explain each defence accurately and with reference to
appropriate case law.

Volenti
• A full defence
• A voluntary assumption of risk by the plaintiff
• Knowledge and understanding of the risk
• Examples – sport, employment, medical treatment

Contributory Negligence
• A partial defence under the Law Reform (Contributory Negligence) Act
1945
• Damages reduced in proportion to claimants contribution
• Examples – driving cases, smoking related illness
Candidates should present an accurate explanation of the legal rules with
reference to relevant authority. Candidates should then address the question
by comparing the two defences – is there an overlap between the two.
What are the significant differences
• Contributory negligence indicates that the claimant was at fault
• Volenti does not indicate fault on the part of the claimant but rather that
they understood and consented to the risk
• Contributory negligence is a partial defence while volenti is a full defence
• Any other relevant comparisons may be credited
• Outcome for the parties
• Availability in relation to different torts

The defence of volenti non fit injuria (consent) will not apply merely
because a claimant has knowledge of the existence of a risk.
Describe the elements of this defence and assess the extent to which
the statement above is true.

Candidates should explain the meaning of volenti non fit injuria in terms of
consent to the risk of harm or voluntary assumption to the risk of harm. In
addition candidates should explain that this is a complete defence which if
successful will mean that the claimant will receive no damages. Relevant
case law should be referenced in the explanation of the defence. Candidates
should provide examples of where the defence might apply e.g. sport or
medical treatment
Candidates should then consider the particular issues raised by the question.
In addition to knowledge of the risk it must be shown that the claimant had a
full understanding of the risk. It must also be established that the claimant
freely assumed the risk and voluntarily undertook the risk of harm. Through
this discussion candidates can address the question and reach a reasoned
conclusion.

Self-help remedies are of limited relevance in the modern law of tort.

Critically assess the validity of this statement.

The candidates could begin by introducing the range of remedies available in tort. Brief reference
to damages and injunctions is worth some credit here.
However the focus of the question is specifically self-help remedies.
Candidates should examine the rules governing the remedy of abatement in nuisance, outlining
the elements of the defence and referring to relevant cases or examples.
Candidates could also consider the right to eject a trespasser (action for recovery of land) again
with reference to cases or examples.
In order to achieve the higher bands candidates should critically assess the relevance of these
remedies in the modern law of tort.
Answers which are descriptive only will be confined to Band 3.

The defence of contributory negligence ensures that the court achieves justice by examining the conduct of
both parties. Assess the validity of the statement above.

• Development of the defence of contributory negligence as a partial defence

– Law Reform (Contributory Negligence) Act 1945.
• Apportionment of blame.
• Discussion of examples of use of the defence.
• Application where the claimant is a child.
• Possibility of 100% reduction.
• Assessment of whether the defence provides a fair result for both parties.
• Difficulties associated with apportioning blame.

Jerry works as a machine operator for the Mockup Factory. Jerry’s machine
regularly gets blocked and it usually takes hours before the maintenance mechanic
repairs the blockage and Jerry loses production bonuses as a result. There is a
guard on the machine but Jerry is in the habit of removing the guard while the
machine is still running and clearing the blockage by hand. Mockup Factory
management knows of this. One day, while doing this, his hand gets caught and is
ripped off by the machine.
Evaluate the accuracy of each of the four statements A, B, C and D individually as
they apply to the facts in the above scenario.
Statement A: Mockup Factory will not have a defence of volenti non fit injuria in a
personal injury claim by Jerry.
Statement B: Mockup Factory will have a defence of volenti non fit injuria and if
Jerry’s claim is successful the court will reduce the amount of
damages awarded to Jerry.
Statement C: Mockup Factory will not have a defence of contributory negligence.
Statement D: Mockup Factory will have a defence of contributory negligence and
Jerry’s damages will be reduced by 100%. [20]

Statement A: Mockup Factory will not have a defence of volenti non fit injuria in a
personal injury claim by Jerry.
 Reason that a defence of volenti only succeeds where the claimant
fully understands the risk of harm and voluntarily undertakes the
risk
 Reason that Jerry is likely to understand the risk that his actions
will cause him damage – if only because there is a guard on the
machine
 Reason whether in the circumstances Jerry has voluntarily
undertaken the risk – the loss of production bonus is probably
insufficient to justify him removing the guard and placing his hand in
the machine while it is still running
 Conclude that the statement may be inaccurate – but Mockup knew
of Jerry’s actions and failed to stop them so this may harm its
defence.
Statement B: Mockup Factory will have a defence of volenti non fit injuria and if
Jerry’s claim is successful the court will reduce the amount of
damages awarded to Jerry.
 Reason that the defence of volenti is a complete defence
 Reason that as such the effect of the defence is to remove liability
completely
 Reason therefore that there could be no damages awarded to Jerry
at all his claim would fail
 Conclude that the statement is inaccurate.
Statement C: Mockup Factory will not have a defence of contributory negligence.
 Reason that the defence of contributory negligence applies where
the claimant is partly responsible for the harm suffered and has
failed to properly take care of himself
 Reason that Jerry would not have lost his hand if he had not taken
the guard off the machine and put his hand into it while it was
running – so he is partly responsible for it – as is Mockup for
knowing what he did and failing to stop him
 Reason also that a reasonable person would not have done what
Jerry did so the defence is available
 Conclude that the statement is inaccurate.
Statement D: Mockup Factory will have a defence of contributory negligence and
Jerry’s damages will be reduced by 100%.
 Reason that in contributory negligence damages are reduced by
the extent to which the claimant is responsible for his own harm
 Reason that it has been suggested that 100% reduction has the
same effect as volenti and so is impossible
 Reason though that if the employer has a statutory duty to act then
volenti is impossible and so a 100% reduction may still be possible
 Conclude that the statement is possibly accurate.

Abid is driving his car at 90 miles per hour at night on the wrong side of the road along a dark country
lane. Abid collides with another car being driven by Beatrice. Beatrice’s passenger, Claudine, is
seriously injured in the collision. Beatrice and Claudine were returning from a party where they had
both drunk a large quantity of wine. Claudine had accepted a lift even though she knew Beatrice was
over the limit and should not be driving.
Evaluate the accuracy of each of the four statements A, B, C and D individually, as they apply to
the facts in the above scenario.
Statement A: Claudine has no claim in negligence against Abid as he has not breached his duty
of care to her.
Identify that a road user owes a duty of care to all other road users, including passengers of
 vehicles, Nettleship v Weston.
Identify that a motorist owes the standard of care appropriate to a reasonable motorist (measured
objectively) and that in driving at 90 mph and on the wrong side of the road some harm is foreseeable
and indeed highly likely, and that Abid could have easily taken precautions to avoid harm by driving
safely.
Conclude that the statement is inaccurate.

Statement B: Abid is not liable to Claudine in negligence because he can argue that a novus
actus interveniens by Beatrice.
Identify that a novus actus interveniens by a third party can break the chain of causation and
relieve a defendant of liability.
Identify that this will only be the case where the intervening act is in fact the operating cause of
the harm suffered Knightley v Johns.
Conclude that here the accident was foreseeable irrespective of Beatrice drinking over the limit so
that the defence is unlikely to succeed.

Statement C: Abid has a defence of volenti non fit injuria to any claim by Claudine.
Identify that Abid owes Claudine a duty of care which he has breached by driving unreasonably
and that this has caused damage which is a foreseeable consequence.
Identify that the defence of volenti non fit injuria is not available under the Road Traffic Acts to
such claims because of compulsory insurance.
Conclude that Abid will be unable to raise such a defence successfully.

Statement D: Abid can use the defence of contributory negligence to reduce damages in any claim by Claudine.
Identify that under the Law Reform (Contributory Negligence) Act 1945 damages can be reduced for
contributory negligence to the extent that the claimant is responsible for the harm suffered.
Identify that the defence depends on proving firstly that the claimant failed to take care of his own safety,
and secondly that this failure contributed to causing the harm suffered.
Conclude that Claudine has failed to take care of her own safety by accepting a lift with Beatrice who has
drunk too much, but that it is harder to prove that this actually caused the injury to her.

David is playing in a professional football match. An opposing player commits an illegal tackle
against David and breaks his leg. David objects to getting on the stretcher as he thinks it looks
unsafe. In spite of his concerns, David gets onto the stretcher at the request of the referee as he
does not want to hold the game up. The stretcher collapses and causes further injury to David’s
back. David is driven to the hospital by his friend Henry. David knows that Henry has been drinking.
Henry crashes the car causing David a head injury. David is unconscious when he reaches the
hospital and the doctors carry out life-saving surgery.
Evaluate the accuracy of each of the four statements, A, B, C and D, individually, as they apply to
the facts in the above scenario.
Statement A: David cannot successfully claim for his broken leg as he has agreed to the
injury by playing in the match.
Statement B: David can successfully claim for back injuries even though he voluntarily got
onto the stretcher.
Statement C: David cannot successfully claim for his head injuries because he chose to get
into the car.
Statement D: David can successfully claim for the surgery being conducted without his
consent.

P1 Reason that for the defence of volenti to apply it must be established that the claimant knew the nature
and extent of the risk of harm
P2 Reason that David knew that there was a risk of some harm by agreeing to play football
P3 Reason that the harm must be voluntarily agreed to
P4 Reason that David has only agreed to harm caused within the ordinary rules of the game and an illegal
tackle is outside the rules of the game
P5 Conclude that the statement is inaccurate.

P1 Reason that for the defence of volenti to apply it must be established that the claimant knew the nature
and extent of the risk of harm
P2 Reason that David knew that there was a risk of injury as he thought the stretcher looked unsafe
P3 Reason that the harm must be voluntarily agreed to
P4 Reason that David had no choice but to get onto the stretcher as he was under pressure not to hold up
the game and he had been directed to do so by the referee
P5 Conclude that the statement is accurate.
OR
P4a Reason that David chose to get on the stretcher rather than refusing the request of the referee
P5a Conclude that the statement is inaccurate.

P1 Reason that for the defence of volenti to apply it must be established that the claimant knew the nature
and extent of the risk of harm
P2 Reason that David knew that Henry had been drinking and appreciated a risk of harm
P3 Reason that the harm must be voluntarily agreed to
P4 Reason that even though David voluntarily agreed to get into the car, liability cannot be negated due to
the Road Traffic Act 1988
P5 Conclude that the statement is inaccurate.

P1 Reason that a doctor can treat a patient without his consent where the patient lacks the capacity to
consent
P2 Reason that David was in a state of unconsciousness so could not consent
P3 Reason that a doctor will not be liable when they reasonably believe that they are acting in the patient’s
best interests
P4 Reason that the surgery was necessary to save David’s life
P5 Conclude that the statement is inaccurate.

How far are VNFI and CN effective and fair?

Discuss any or all of the following:

 Complete defence of consent can appear to favour defendant
whereas contributory negligence encourages claimant to take
personal responsibility
 Pre-1945 both defences were complete so contributory negligence
had been unfair
 Strength of defences is aim of fairness
 Problem in that can lead to allegations of those causing harm
avoiding obligations and so can be ineffective
 Potential confusion between defences which can make them
ineffective
 Difficulty of succeeding under consent
 Perhaps apportionment policy as in contributory negligence fairer
approach
 However difficulties associated with apportioning blame lead to
questions whether contributory negligence does produce fairness and
so is ineffective
 Influence of policy
 Use of each defence
 Any other relevant point.
Reach a sensible conclusion