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.
