damage evaluation

Question 1

factual causation

Answer 1

• the principles are factual causation are generally fair as the ‘but for’ test allows claimants to be treated in the same way, however, the test is only appropriate when you have one defendant and one cause, if there are any other issues this may be difficult to prove,
• in Barnett v Chelsea and Kensington, the facts of the case made it very easy to apply the test in a straightforward way and find that he would have died, regardless of whether he was treated,
• however, sometimes judges will ignore the problems in applying the ‘but for’ test and find policy reasons to give a just result. In Chester v Asfhar there was negligence in the surgery, but the judge held that the failure to inform the patient of the risks was sufficient for a breach and that had caused her to make a decision which ended in her damage,

Question 2

intervening acts

Answer 2

• the rules regarding intervening acts are considered to be problematic as they do not provide consistent outcomes. this is down to the fact it must be decided whether the intervening cause is sufficiently significant to free the defendant of liability,
• for example, a natural event can be considered an intervening act as in Carslogie v Royal Norwegian - here the other tests for causation could be a sufficiently significant event which broke the chain. it is a very subjective decision as to whether a natural event is sufficiently significant,
• if the defendants act sets the scene for further damage or harm then it will be down to the court on the day to decide if they are to be liable and this can lead to issues with fairness and consistency,

Question 3

associated risks

Answer 3

• if the claimant’s actions are reasonable but they took a certain risk, then it must be considered whether the defendant should be liable for the injury associated with that risk,
• in Mckew v Hollands the claimant suffered a leg injury at work and the employer accepted liability, when the claimant then fell down the stairs it was considered an intervening act and the employer was not liable for the further injuries - the risk was considered unreasonable and therefore it was an intervening act,
• contrast this with Spencer v Wincanton where an accident at work led the claimant to have his leg amputated - he was then injured further after falling whilst not using crutches or his prosthetic leg, his actions were considered reasonable, and he was further compensated, (links with the inconsistency of previous point),

Question 4

remoteness of damage

Answer 4

• the rules on remoteness can be unfair as they can operate to limit the defendant’s liability, the approach taken by the courts to decide what ‘type’ of damage may be foreseeable can be seen as unfair and inconsistent,
• in Hughes v Lord Advocate the burns of the child were considered to be foreseeable even though they happened in an unforeseeable way - burns are burns,
• however in Doughty v Turner, the claimant was unsuccessful as the burns he received were considered to be unforeseeable due to a lack of knowledge at the time and the explosion being unpredictable, this is unfair as the claimant has still suffered significant harm,

Question 5

reform of negligence

Answer 5

• a reform to the current system would be a state-run benefit scheme which pays out compensation to all victims without the need to prove how or why the accident happened,
• could be funded through general taxation or a levy on motorists or employers,
• benefit is there would be no need for insurance companies to be involved or delay the claims,
• some countries already have this system - e.g. Canada has a state-run system that covers accidents at work and employers pay a contribution based on the dangers in their work place,

Question 6

AO1

Answer 6

• claimant must prove the breach caused the damage,
• their are two elements to consider:
  . causation in fact,
  . remoteness of damage,
• causation in fact - claimant must prove he would not have suffered the harm/damage ‘but for’ the d’s act or omission - Barnett v Chelsea,
• remoteness of damage - claimant must also prove the harm was reasonably foreseeable, meaning the harm/damage was the type of damage would be expected as a result of the act or omission - the wagon mound No 1,
• it doesn’t matter if the damage occurred in an unforeseeable way as long as the type of harm was foreseeable,
• thin skull rule; ‘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,
• intervening acts ; break in the chain of causation,
• the question is whether the injury or damage was a foreseeable consequence of the original negligent act,