damages - neg Flashcards
what two part of damages
-factual causation
-remoteness of damage(legal causation)
what test is used for factual causation
‘but for’ test
how is the ‘but for’ determine
whether, ‘but for’ D’s act or omission, would the injury or loss occurred
what is the ‘but for’ test if D is liable
-if the injury or loss would not have occurred , D is liable
what is the ‘but for’ test if D is not liable
-if the injury or loss would have occurred anyway, D is not liable.
case link to Factual causation and the ‘but for’ test
Barnett v Chelsea and Kensington hospital management committee (1969)
facts of Barnett v chelsea and kensington hospital management committee (1969)
Three night watchmen went to A&E complaining of vomiting after drinking tea. The duty doctor, who did not examine them, told them that they should go home and see their doctor.one of the men went home and died a few hours later of arsenic poisoning.
what was claimed for in Barnett v chelsea and kensington hospital management committee (1969)
It was claimed that the doctor had breached the duty of care by not examining them. However evidence showed by the time the C got to the doctor, there was nothing that could been done to save him.
legal point/ held for Barnett v chelsea and kensington hospital management committee (1969)
No factual causation as the case failed the but for test. His death was not caused by the doctor’s breach of duty, it could not be said that ‘bot for’ the doctor’s failure to examine him, he would not have died.
What is the test for remoteness of damages
Reasonable foreseeability is the test for remoteness of damage
what must the harm not be in the reasonable foreseeability
The harm or injury suffered must not too remote, which is to say ‘unforeseeable’
case link to remoteness of damages
The wagon mound (1961)
facts of The wagon mound (1961)
Fuel oil had been negligently spilled from the D’s ship in the sea in Sydney harbour. The wind and tide carried the oil spill towards the C’s wharf. C was carrying out welding repairs. Two days later, the oil caught fire as a result of the welding and C’s wharf burned down.
held for The wagon mound (1961)
Although damage done to the wharf by the oil was reasonably foreseeable, fire damage was not reasonably foreseeable and therefore the damage was too remote and there was no negligence
what is the Latin word for intervening acts
novus actus interveniens
if there is no intervening act there is not what
There is no legal causation where there is an intervening act
what can break the chain of caution
Act by the claimant
Act by nature
Act by third party
case link to act by the claimant
McKew v Holland 1969
facts McKew v Holland 1969
C sustained an injury at work due to his employer’s breach of duty. He strained his back and hips and his leg was prone to giving way. Whilst in this state he attempted to climb down a steep concrete staircase without the handrail. He got part way down and felt his leg give way so he jumped down 10 steps to the bottom.he suffered a fractured ankle and left with a permanent disability.
what was the defendant liable for in McKew v Holland 1969
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
held for McKew v Holland 1969
The claimant’s action amounted to a novus actus interveniens because his action in attempting to climb the steps unaided knowing his leg might give way was unreasonable. The defendant was therefore not liable for the injuries resulting from the incident on the stairs.
case link to act by nature
Carslogie steamship co. v royal norwegian government 1952
facts Carslogie steamship co. v royal norwegian government 1952
The claimant’s vessel, heimgar,was damaged by a collision with the defendant, carslogie. The defendants admitted negligence and damage and this was not dispute. The claimantls had temporary repairs carried out on the vessel and it was certified to sail to new york. On the way, the heimgar suffered bad damage from stormy weather at sea. The vessel was in need of permanent repairs to fix this damage and this repair work began in new york and would last 30 days. During this time, the repairs for the collision with carslogie were completed.
held for Carslogie steamship co. v royal norwegian government 1952
It was held that the defendants were only liable and responsible for the loss of profit resulting from the collison, not for further damages sustained by the natural events of the sea. The claim for loss during the 10 day period was not awarded. The chain of causation was broken by natural events.
case link to act by a third party
Knightley v johns 1982
facts Knightley v johns 1982
As a result of mr john’s negligent driving his car overturned in a tunnel. Two police officers on motorcycles arrived at the scene. The senior officer instructed them both to ride their motorcycle to the other side of the tunnel and close the entrance as he forgotten to close it earlier. They took the decision of driving on through the tunnel on the wrong side of the road on a blind bend rather than going the long way round. One of the officers, mr john knightly, was involved in a head on collision with an oncoming vehicle driven by mr cotton and sustained serious injuries. The main continuous point was whether Mr John remained liable or whether the actions of the other defendant’s and the claimant amounted to a novus actus interveniens.
held for Knightley v johns 1982
The senior officer;s instructions and failure to close the entrance to the tunnel were negligent and broke the chain of causation. The claimant’s decision in going through the tunnels was not negligent. Thus the claimant was entitled to full damages from the senior officer and Mr John was not liable.
Does it matter if the type of damage is extreme?
No, as long as the type of damage caused is foreseeable, the actual level of damage can be extreme.
case link to extreme damages
bradford v robinson rentals 1967
facts of bradford v robinson rentals 1967
C was sent by his employer (D) to drive a long distance to exchange an old van for a new vehicle during extremely cold weather conditions.neither of the vehicles he drove were heated and as a result, C suffered frostbite.
held for bradford v robinson rentals 1967
If the type of damages is reasonably foreseeable, it does not matter if the damage suffered is rare or extreme. Although frostbite is rare, injury through cold exposure could be foreseen in this case.
what is the eggshell skull rule(thin skull rule)
Must take victim as you find them
case link to eggshell skull rule
Smith v leech brain 1962
facts of Smith v leech brain 1962
C was burned on the lip by molten metal as a result of D’s breach of a duty of care. He had an existing precancerous condition. The burn eventually brought about the onset of full cancer and the man died.
held for Smith v leech brain 1962
The burn was a foreseeable consequence of D’s negligence and this resulted in the death.D was liable for his death. It was not necessary to show that the death by cancer was foreseeable, nor that an ordinary person would not have died from the injury. The egg shell(thin) skull rule applies andD must take his victim as he finds him
what is meant by unknown to science
It is not reasonably foreseeable if the accident occurred as a result of a totally unknown event.
case link to unknown to science
Case for this is doughty v turner Ltd 1964
facts of Case for this is doughty v turner Ltd 1964
The cover on a cauldron of exceedingly hot molten sodium cyanide was accidentally knocked into the cauldron. C, a worker, was injured when the cauldron erupted like a volcano exploding. Scientific knowledge at the time was that there might be small splash but no violent explosion.
held for Case for this is doughty v turner Ltd 1964
The claim failed. D employer owed a duty of care in respect of only foreseeable risks. In this case the risk of splashing of the liquid if the cover fell into it, not for the unknown violent consequences.
