Law of Tort - Damage (negligence) Flashcards
What is ‘damage’ in negligence?
The legal test that a claimant’s loss was cause by a breach of a duty of care
What two elements is damage made up of and how does it link to negligence?
Factual causation - the idea that the breach of duty has caused the injury or damage being claimed
Legal causation - deciding whether the injury or damage suffered was reasonably foreseeable
Explain factual causation and give an example case
It is the starting point - if factual causation cannot be proved, there is no need to consider legal causation
It is decided by the ‘but for’ test. But for the D’s act or omission, the injury would not have occurred
Barnett (1969)
Three men visited A&E complaining about sickness after drinking tea made by a fourth man
Doctor did not examine men - advised they went home
One man died - widow sued hospital
Evidence showed that by the time man had arrived at hospital, it was already too late to save his life - meaning death was not caused by the breach of the doctor’s duty, ‘but for’ test failed
Explain legal causation
An intervening event can break the chain of causation
Principle to be applied to whether the injury was foreseeable consequence of the original negligent act or omission
What are the three types of intervening act that can break the chain of causation
Action of the claimant
Action of nature
Action of a third party
Explain the case from Act of the claimant
McKew v Hollands 1969
- Claimant suffered a leg injury at work (employer’s fault - negligent)
- After the injury, C tried to climb down a steep staircase without help or handrail - fell and ended up permanently disabled
- Whilst D was liable for original injury, climbing down stairs was an intervening act that broke chain of causation
- D not liable for permanent injury
Explain the case from Act of nature
Carslogie Steamship 1952
- Ship called H suffered a collision with another ship (carslogie) The carslogie was entirely to blame
- Temporary repairs were done to ship H before it could sail back to america. However during the crossing the ship suffered further damage from a storm
3.Storm broke the chain of causation - owner of carslogie not liable for damage caused by storm (but liable for original damage)
Explain the case from Act of third party
Knightly v Johns 1982
- Johns drove negligently, resulting in a crash where his car was stuck near the exit of a tunnel
- Police attended the scene but forgot to close the tunnel
- Senior police officer ordered other officer to ride his motorcycle the wrong way down the one way tunnel to shut it, resulting in a crash
- Johns was not liable for police officer’s crash, chain of causation broken
What is remoteness of damage?
Damage that is not reasonably foreseeable prevents there from being legal causation
The damage must not be too remote (meaning separate) from breach of duty by the claimant
Explain the case from remoteness of damage
Wagon Mound 1961
- Oil had negligently spilled from D’s ship into harbour
- Two days later, the oil caught fire because of sparks from welding, burning down a wharf.
- Damage was not reasonably foreseeable, too remote and chain of causation broken
Explain the skin skull rule in negligence (legal causation)
Take your victim as you find them. If an injury was foreseeable, but was much more serious for the claimant because of a pre-existing condition, D is still liable for the whole injury
Explain the case from the thin skull rule
Smith v Leech Brain 1962
Due to D’s negligence, claimant (man working in factory) was burnt on the lip by molten metal
Claimant had existing cancerous condition
Burn caused the onset of full cancer - killed claimant
D was liable for the burn - reasonably foreseeable - and because of eggshell skull defendant also liable for claimant’s death
