6. Negligence - remoteness Flashcards
*The Wagon Mound (No 1) 1961 AC 388
A. Choosing a Criterion of Responsibility? The basic Wagon Mound test.
o This case introduces remoteness which then expanded by Hughes v Lord Advocate
o Facts
o The defendants owned a freighter that discharged a large quantity of furnace oil into harbour. Oil came in contact with plaintiff’s wharf for shipbuilding. Later, cotton waste that was floating was ignited which damaged the wharf and two ships.
o The issue?
o Whether the defendants were liable for damages where it was not reasonably foreseeable that the oil would ignite and cause the damage
o Held
o The court established a rule of proximate cause that a defendant must be considered to be responsible for the probable consequences of his act
o The test for proximate cause if reasonable foreseeability of harm
o As a finding of fact – the foreseeability of fire was not foreseeable + it was not intentional -
o Wagon Mound 1 found in favour of D
o Wagon Mound 2 held that D ought to have known and allowed ship owners to appeal.
o In Wagon Mound 2 the defendants were in breach of duty. Although the likelihood of harm was low, the seriousness of harm was high and it would have cost nothing to prevent it.
*Hughes v Lord Advocate HL 1963 AC 837
B. Extending Responsibility beyond Foreseeable Harm:
o Facts
o Two boys aged 8 and 10 went exploring an unattended manhole. The manhole had been left by two work men taking a break. It was surrounded by a tent and some paraffin lamps were left to warn road users of the danger. The boys took a lamp down the hole. One of them dropped the lamp and an unforeseeable explosion occurred resulting in extensive burns.
o Held
o The damage was not too remote it was foreseeable that the boys may suffer a burn from the lamp. The fact that the burn resulted from an unforeseeable explosion did not prevent the type of damage being foreseeable
o Despite this, liability for the respondent was limited on the grounds that although the danger to children was foreseeable the accident was not of a foreseeable nature.
o There should be foreseeability of how damage occurs – test set out in Wagon Mound I + expanded in Hughes as follows
o Hughes the set of circumstances was not foreseeable but the danger was something that the defendants should have taken better care off
Comments
You do not have to say that a particular situation is foreseeable but that a consequence is to come
*Smith v Leech Brain 1962 2 QB 405
o Facts
o A widow brought a claim against the defendant under Fatal Accidents Act for the death of her husband. The defendant employed the husband. As a result of their negligence he incurred a burn to his lip. The lip contained pre-cancerous cells which were triggered by the injury sustained. He died three years later from cancer.
o Held
o The burn was a foreseeable consequence of the defendant’s negligence and this resulted in the death. The defendant was liable for his death. It was not necessary to show that death by cancer was foreseeable, nor that an ordinary person would not have died from the injury. The egg shell skull rule applies and the defendant must take his victim as he finds him.
o Egg shell skull – holds the rule that a tortfeasor is liable for all consequences resulting from his or her tortious (usually negligent) activities leading to an injury to another person, even it the victim suffers an unusually high level of damage. The term egg shell implies that if a person had a skulls as delicate as that of the shell of an egg, and a tortfeasor who was unaware of the condition injured that person’s head, causing the skull unexpectedly to break, the defendant would hold liable for all damages resulting from the wrongful contact, even if the tortfeasor did not intend to cause such a sever injury.
**Jolley v Sutton LBC 2000 1 WLR 1082
o Two 14-year-old boys found an abandoned boat on land owned by the council and they decided to do it up. The boat was in a thoroughly rotten condition and represented a danger. The council had stuck a notice on the boat warning not to touch the boat and if the owner did not claim the boat within 7 days it would be taken away. The council never took it away. The boys had been working on the boat when one of them suffered severe spinal injuries, resulting in paraplegia, when the boat fell on top of him.
o Held
o It has long been established that children are or may be attracted to meddle with objects on premises or property which constitute a danger when meddled with. An occupier is under a duty to protect a child from danger caused by meddling with such an object by taking reasonable steps in removing the object altogether so as to avoid the prospect of injury.
o The risk was that children would ‘meddle with the boat at the risk of some physical injury’. The actual injury fell within that description.
o Lord Steyn – ‘The scope of the two modifiers – the precise manner in which the injury came about and its extent – is not definitively answered by either The Wagon Mound No1 or Hughes v Lord Advocate. It requires determination in the context of an intense focus on the circumstances of each case.’
o You again using Hughes you could not foresee the scenario but the boat itself represented a danger
McKew v Holland, Hannen & Cubitts 1969 3 All ER 1621
C. Restricting liability for Foreseeable Harm: Intervening Events
First party interventions
McKew v Holland, Hannen & Cubitts 1969 3 All ER 1621
o Facts
o The claimant sustained an injury at work due to his employer’s breach of duty. He strained his back and hip and his leg was prone to giving way. Whilst in this state he attempted to climb down a steep concrete staircase without a handrail unaided. He got part way down and felt his leg give way so he jumped 10 steps to the bottom. He suffered a fractured right ankle and was also left with a permanent disability. The defendant accepted liability for the injury sustained during his employment but disputed liability for the second injuries resulting from the claimant’s action in jumping down the stairs
o Held
o The claimant’s action amounted to a novus actus interveniens because his action in attempting to climb the steps unaided knowing that his leg might give way was unreasonable. The defendant was therefore not liable for the injuries resulting from the incident on the stairs.
*Reeves v Met Police Commissioner 1999 3 WLR 363
The first part is with regard to remoteness
o This is a complex case where diverse issues of causation and relative blame had to be balanced.
o Facts
o Martin Lynch committed suicide whilst in a police cell. He had attempted suicide earlier that day in the cells at the magistrates. He also attempted suicide on previous occasions. He had been seen by a doctor at the police station on arrival who reported that he was not schizophrenic or depressed but was a suicide risk. The custody officer checked him at 1.57pm and left the hatch open. He was found at 2.05pm having used his shirt as a ligature secured by the open hatch. He was unable to be resuscitated and dies a week later. The defendant argued that as Lynch was of sound mind his voluntary and informed act of suicide broke the chain of causation
o Held
o The act of suicide was the very thing that the police were under a duty to prevent. Treating the act as novus actus interviniens would deprive the duty to the prisoners of any substance. Therefore the defendant was liable, however, damages were reduced by 50% under the Law Reform (Contributory Negligence) Act 1945.
This second part is with regard to contributory negligence, causation and relative blame. All of these have to be balanced.
o Damages – An intentional act of suicide could amount to ‘contributory negligence – Steel 272.
o The definition of ‘fault’ within s4 is wide. Talk about its wide interpretation and potential problems with it.
♣ Lord Hope – 382-83
♣ ‘It has been said that the definition of ‘fault’ comprises two limbs…the first limb, which is referable to the defendant’s conduct, comprises various acts or omissions which give rise to a liability in tort. The second limb which is referable to the plaintiff’s conduct, deals with acts or omissions which would, but for the Act, have given rise to the defence of contributory negligence.’
♣ With regard to balancing various issues of causation and relative blame:
♣ Lord Hoffmann 372
♣ Lord Hoffmann says that apportionment should be distributed equally between Mr Lynch and the police [372]. He emphasises the importance on finding a balance between causative influences measured against the degree of blameworthiness, policy reasons in the prevention of self-harm and moral feelings concerning the wrongness of self-harm. This is because he believes it to be ‘wrong to attribute no responsibility to Mr Lynch’, hence balance must be found.
** Corr v IBC (HL) [2008] UKHL 13
o Facts
o The defendant employer was liable for damages in relation to the financial loss attributable to the deceased’s suicide. The claimant had suffered physical and psychiatrist injury as a result of an accident at work more than five years prior to his death.
o Following the accident, he suffered from post traumatic stress disorder, severe headaches and difficulty sleeping. He also developed depression.
o The issues
o Whether damages could be recovered in respect of the financial loss attributable to the deceased’s suicide. Were the damages claimed too remote?
o Held HL
- The employer owed the deceased a duty to avoid causing both psychological and physical injury. His suicide was not outside the scope of the employer’s duty
- Depression was a foreseeable consequence of the employer’s breach. A tortfeasor who reasonably foresees the occurrence of some damage need not foresee the precise form which that damage may take.
- The chain of causation could be broken where a person of sound mind voluntary committed suicide. However, here the suicide was not voluntary. It was the response of a man suffering from a severely depressive illness which impaired his capacity to make reasoned judgments. The suicide was not novus actus interveniens.
- The deceased did not consent to the accident at work and he did not voluntarily consent to the suicide. The suicide occurred because of the psychological condition resulting from the defendant’s breach
- No reduction was made for contributory negligence
*Wright v Cambridge Medical Group [2012] 3 WLR 1124 (see Qs below)
Third party interventions
- Facts
- The CA found that the negligent delay by a GP in referring a child to hospital was causative of permanent injuries, even though the subsequent diagnosis by a hospital was delayed.
- A baby contracted chickenpox and was admitted to hospital where she acquired treatment. She was sent home without a diagnosis and her condition deteriorated. The baby’s mother contacted the defendants but they failed to arrange for the claimant to be seen.
- The claimant was seen by a different GP. However, the hospital failed to diagnose her condition again by which time she had sustained severe permanent injury
- The defendants admitted they were negligent by not referring the claimant to a hospital when they should have done. The claimant failed on causation. Even if the claimant had been admitted at an earlier date, she would not have been treated adequately so would have suffered the permanent damage in any event. The claimant appealed.
- Held
- Appeal allowed
- The defendant’s argument that the duty of care was restricted to referring the claimant to a hospital was rejected.
Law Reform (Contributory Negligence) Act 1945
- In statute book but make links to negligence.
Dorset Yacht v Home Office [1970] AC 1004
- This case sets a test
- Facts
- Some young offenders were doing some supervised work on Brown Sea Island under the Borstal regime. One night the Borstal officers retired for the evening leaving the boys unsupervised. Seven of the, escaped and stole a boat which collided with a Yacht owned by the claimant.
- Held
- The Home Office owed a duty of care for their omission as they were in a position of control over the third party who caused the damage and it was foreseeable that harm would result from their inaction.
*Lamb v Camden LBC 1981 2 All ER 408
- Facts
- The defendant council negligently fractured a water pipe outside the claimant’s house. This caused extensive damage and the property had to be vacated. One year later the council had not undertaken the repairs. Squatters had also moved in and caused further damage. The claimant arranged for repairs to be done herself and submitted a bill to the council for the repairs and damage caused by the squatters.
- Issues
- Is this damage a foreseeable consequence of the Borough’s negligence?
- Does the test set out in HOME OFFICE help reach the logical conclusion?
- Held
- The local authority was not liable for the acts of the squatters. It was not foreseeable that squatters would move into an empty house in Camden and cause damage despite the prevalence of such behaviour in Camden at the time.
- Denning rejects the test from Home Office as being too expansive and allowing damages to be assessed when they should not.
- Ratio
- Reasonable foreseeability of damages is not enough in itself to justify awarding damages; courts must consider the public policy implications, or discover a more ‘stringent standard’ as Lord Oliver says, to ensure that damage awards are logical.
Civil Liability (Contribution) Act 1978, s.1
Statute book + make links
** Banque Bruxelles v Eagle Star (‘SAAMCO’) 1997 AC 191
- Facts
- In the three cases, the defendants appealed as valuers who were required by the plaintiffs to value properties on the security of advancing money on mortgages. In each case, the defendant overvalued the property. Subsequently the loans were made, which the plaintiffs would not have proceeded with had they known the real value of the properties.
- The borrowers defaulted and the property market had fallen greatly increasing the losses suffered by the plaintiffs. The plaintiffs brought actions against the defendants for damages for negligence and breach of contract
- Held
- The first appeal was dismissed and the second and third appeals were allowed.
- The duty of the defendants in each case, which was the same in tort and contract, had been to provide the plaintiffs with a correct valuation of the property
- Lord Hoffmann sets out the issue in the case (p210):
- ‘What is the extent of the liability of a valuer who has provided a lender with a negligent overvaluation of the property offered as security for the loan?’
- p214 at A-F THE SAAMCO PRINCIPLE -
- ‘…If the duty is to advise whether or not a course of action should be taken, the adviser must take reasonable care to consider all the potential consequences of that course of action. If he is negligent, he will therefore be responsible for all the foreseeable loss which is a consequence of that course of action having been taken. If his duty is only to supply information, he must take reasonable care to ensure that the information is correct and, if he is negligent, will be responsible for all the foreseeable consequences of the information being wrong.’
• Case of Nykredit Mortgage Bank plc v Edward Erdman Ltd - Lord Nicholls of Birkenhead said what now has come to be known as the SAAMCO principle –
“However, for the reasons spelt out by my noble and learned friend, Lord Hoffmann, in the substantive judgments in this case [1997] AC 191, a defendant valuer is not liable for all the consequences which flow from the lender entering into the transaction. He is not even liable for all the foreseeable consequences. He is not liable for consequences which would have arisen (the fall in property prices) even if the advice had been correct. He is not liable for these because they are the consequences of risks the lender would have taken upon himself if the valuation advice had been sound. As such they are not within the scope of the duty owed by the lender to the valuer.”
** Chester v Afshar 2005 1 AC 134
E. A puzzle: undisclosed medical risk
• Facts
• The claimant had suffered back pain for 6 years. This became quite severe and at times she was unable to walk or control her bladder. An MRI scan revealed that there was a disc protrusion into her spinal column and she was advised to have surgery. The surgery carried a 1-2% risk that even if it was performed without negligence the operation could worsen rather than improve her condition. Her consultant was under a duty to warn her of this risk but failed to do so. C had the operation and worsen her condition. The trial judge had found that the surgeon had not been negligent in performing the operation but his failure to warn her of the risk was a breach of duty.
• C argued that if she had been warned she would not have taken the decision to have the operation straight away but would have taken time to consider other options and discuss the risks with her family and would thus not have had the surgery on the day which she had it. She did not say she would never have had the operation.
• The judge held that if she had the operation on another occasion it may have been successful. He therefore found in favour of C. D appealed and CA dismissed the appeal – appeal then taken to the HL on the grounds of causation in that she was likely to have consented to the operation and that even if it had been on a different occasion it carried the same risk
• Held
• 3:2 (Lord Bingham + Lord Hoffmann dissenting) appeal dismissed
• Lord Hope
‘The function of the law is to enable rights to be vindicated and to provide remedies when duties have been breached…On policy grounds therefore I would hold that the test of causation is satisfied in this case. The injury was intimately involved with the duty to warn. The duty was owed by the doctor who performed the surgery that Miss Chester consented to. It was the product of the very risk that she should have been warned about when she gave her consent. So I would hold that it can be regarded as having been caused, in the legal sense, by the breach of that duty.
