consequential loss or damage Flashcards
consequential loss or damage
For a claimant to succeed in a negligence claim, he must not only show that the defendant owed him a duty of care and breached that duty of care, but he must additionally prove that the damage or loss he suffered was a result of the defendant’s breach.
There are two factors/tests necessary for this element.
- Causation in fact - ‘but for’ test (Did the defendant cause the claimant’s damage?)
- Causation in law – ‘remoteness’ test (Is the loss or damage reasonably foreseeable?)
Causation in Fact – the ‘but for’ test
To succeed in a claim, there must be a causal link between the breach of duty by the defendant, and the damage suffered by the claimant. The claimant must prove, on the balance of probabilities, that the defendant’s negligence caused or materially contributed to the injury or loss sustained.
i.e., but for the defendant’s behaviour, the damage would not have occurred.
Barnett v Chelsea & Kensington Hospital Management Committee (1969)
– a hospital doctor failed to see and examine a patient who was vomiting (from arsenic poison). It was held the failure to see and examine a patient could be negligence (i.e. the doctor owed the patient a duty of care and breached the duty by failing to attend) but here the negligence had not caused the death of the patient. He would have died anyway.
McWilliams v Arrol (1962)
– The claimant’s husband was not wearing a safety belt when repairing a roof. Belts were normally available but on the day of the accident, the shed in which the belts were stored, was locked. The claimant’s wife argued that if the belts were available her husband would not have fallen. Her claim failed as it was shown that even if the belts had been available her husband would probably not have worn one.
We can now consider Causation in Law (remoteness of damage)
This rule states that any damage must not be too remote which means it must be reasonably foreseeable. It follows that the defendant may not be liable for all results of the breach. This is an objective test, and the defendant is only responsible for the damage which a reasonable man would have foreseen as a likely consequence of his action.
Overseas Tankships & Engineering v Mot Dock & Engineering (The Wagon Mount No. 1) (1961)
– The defendants spilt oil from their ship. The oil spread to a wharf where welding was taking place. The defendants found that oil would not ignite in the water so carried on welding. Three days later, cotton waste floating in the oil, ignited from a welding spark. The claimant’s wharf was destroyed. It was held that although the fire was as a direct result of the oil spillage, it was too remote, as no one knew oil could ignite in this way, i.e., it was not reasonably foreseeable.
Hughes v Lord Advocate (1963)
- Post Office workers left a manhole open surrounded by paraffin lamps. While carrying the lamps, the two boys climbed into the manhole. One of the boys dropped one of the lamps, causing an explosion. Both boys suffered severe burns. It was held that the defendant was liable, as the type of harm (burning from the lamp) was foreseeable even if the exact way in which it occurred (the explosion) was not.
Jolley v London Borough of Sutton (2000)
- a small boat was abandoned on grounds near a block of flats owned by the Council. The boat became derelict and rotten. The Council was aware that children played on the boat, which they knew was dangerous. The claimant, aged 14, and a friend were injured when they tried to jack up the boat to repair it. It was held that the Council was liable as some harm was foreseeable, even if the precise way the harm occurred could not be foreseen.
Intervening Acts (Novus Actus Interveniens)
The situation of an intervening act usually applies in circumstances where the negligence of the defendant has triggered a sequence of events leading to the harm suffered by the claimant. The intervening event may be the act of the claimant himself, or a third party over which the defendant had no control.
The court must decide whether the new act is sufficiently serious to be the cause of the damage rather than the original act.
McKew v Holland & Cubitts Ltd (1969)
– the defendant negligently injured the claimant’s leg which meant it sometimes gave way. The claimant attempted to descend a steep stairway without using the handrail, and he suffered injuries when his leg could not support him.
- In fact, he jumped to avoid falling headfirst, and badly injured his ankle, causing a permanent disability. It was held the defendant was not liable for the injuries sustained in the fall. When the claimant descended the stairs, it was an intervening act which was not reasonably foreseeable to the defendant.
Eggshell Skull Rule (also known as the Thin Skull Rule).
The defendant must take his victim as he finds him. If a victim has a particular susceptibility or weakness (a thin skull or a weak heart, for example) and suffers a greater injury than a normal person, the defendant will be liable to the full extent of the claimant’s injuries.
Smith v Leech Brain & Co (1962)
- The claimant’s husband was splashed on his lip with molten metal which was a reasonably foreseeable splash injury. However, his body cells were pre-cancerous at the time, and he subsequently developed the disease and died. It was held that the defendant was liable even though the only foreseeable injury was a burn.
