damage

Question 1

damage 1 - ‘But for’ test

Answer 1

• ‘but for the defendants breach of duty, would the damage or injury have occurred?’
• Barnett v Chelsea, is the leading case in this area,

Question 2

Barnett v Chelsea

Answer 2

• A and E doctor refused to examine a man who later died from arsenic poisoning,
  clear that the defendants (hospital) owed a duty of care and were in breach of it,
• however, not held liable,

Question 3

why they were not held liable in Barnett v Chelsea

Answer 3

• medical evidence established even if he had been examined, he would have died before diagnosis and treatment could have been carried out,
• as the deceased would have died anyway the hospitals breach was not the cause of death,

Question 4

damage 2 - remoteness of damage

Answer 4

• once we have established duty, breach and the but for test we must prove the damage was not to remote,
• case of Wagon Mound No 1 established the damage must be a reasonably foreseeable consequence of the breach,

Question 5

Wagon Mound No 1

Answer 5

• here defendant negligently discharged fuel oil into Sydney Harbour and the oil spread to the claimants wharf,
• welding work was taking place on the wharf and the claimant was advised there was no risk,
• sparks from the welder caused a pile of cotton waste to catch fire and this set fire to the oil,
• fire damaged two ships and whard,
• on appeal it was held the d’s were only liable for damage to whard,
• damage caused to two ships was held to be to remote a consequence of the original spill,

Question 6

test for remoteness

Answer 6

• test is whether the kind of damage caused was a reasonably foreseeable consequence at the time of the breach,
• it doesn’t matter if the damage occurred in an unforeseeable way as long as the type of harm was foreseeable,

Question 7

Hughes v Lord Advocate

Answer 7

• defendants had erected a tent over a manhole and surrounded it was paraffin lamps,
• a 10 year old dropped one of the lamps down the hole,
• owing to unusual circumstances there was an explosion and the child was badly burnt,
• d argued explosion was to remote,
• question asked was : ‘what kind of injury is foreseeable as a result of the breach of duty?’
• answer was ‘burns’,
• therefore d was liable,

Question 8

Jolley v Sutton London Borough Council

Answer 8

• 14 year old boy was seriously injured when he tried to repair an old boat that had been abandoned in a council park,
• while boat was on a jack it fell on top of him,
• the defendants admitted the boat should have been removed, and that although what the children were playing was foreseeable the repair attempt was not,
• House of Lords said it was foreseeable that children would be involved and therefore the defendants were liable for injuries suffered,

Question 9

thin skull rule

Answer 9

• ‘you must take your victim as you find them’
• means the defendant will be liable for the full extent of the damage even if it is greater due to a condition suffered by the claimant,
• Smith v Leech Brain,

Question 10

Smith v Leech Brain,

Answer 10

• claimants husband was employed by the defendant,
• his work required him to be exposed to molten metal,
• an accident occurred and mr smith was hit on the lip with a piece of molten metal,
• he later died of cancer which was triggered by the burn,
• court said test was whether the burn was reasonably foreseeable,
• it is not relevant that burn has an unforeseeable and unusual effect,

Question 11

damage flow chart (paragraph 1)

Answer 11

• once claimant has proved the defendant owed him a duty of care and the duty was breached, he must also prove the breach caused the damage,
• there are wo elements to consider:
  1. causation in fact = ‘but for’ test,
  2. remoteness of damage = is the damage reasonable foreseeable?

Question 12

damage flow chart (paragraph 2)

Answer 12

• causation in fact - claimant must prove he would not have suffered the harm/damage ‘but for’ the defendant’s act or omission - Barnett v Chelsea (check for intervening acts),

Question 13

damage flow chart (paragraph 3)

Answer 13

• remoteness of damage - claimant must also prove the harm/damage he suffered was reasonably foreseeable,
• means whether the harm/damage was the type of damage that would be expected or anticipated as a result of the act or omission - The Wagon Mound,
• if the damage is reasonably foreseeable then it is said to be not too remote and the claim will be successful,
• if it is not reasonably foreseeable then it is too remote and the claim will fail,

Question 14

damage flow chart (paragraph 4)

Answer 14

• the type of injury is foreseeable even if it occurs in an unexpected way,
• defendant will be liable if the type of injury was foreseeable/anticipated even though the precise way in which it happened was not - Hughes v Lord Advocate,

Question 15

damage flow chart (paragraph 5)

Answer 15

• the thin skull rule,
• the defendant must take his victim as he finds him,
• if the type of damage is reasonably foreseeable/anticipated but it is much more serious because of something unusual about the defendant (or his property) then the defendant is still liable - Smith v Leech Brain,

Question 16

damage flow chart conclusion

Answer 16

• in cases where the claimant is able to prove duty, breach and damage the defendant will be found liable and therefore negligent,