NEGLIGENCE 2 Flashcards
Hunter v Canary Warf [DAMAGE]
FACTS: A tower (now called ‘One Canada Square’) was constructed by Canary Wharf Ltd. This was located next to the primary tv transmitter for the BBC and as a result the tower interfered with the television reception of a group of residents of the Isle of Dogs, however this was fixed by 1991. The parties claimed that there was private nuisance for the period of time when the interference was occurring and 690 claims were made on those grounds with an addition 513 against the London Docklands development Corporation for damages suffered from excessive dust.
RATIO:Interference with someone’s television reception through the construction of a neighboring structure could not and does not and cannot amount to an actionable nuisance. Only those with property rights can launch actions for private nuisance.
Rothwell v Chemical and Insulating Co Ltd [DAMAGE]
FACTS: C was negligently exposed to asbestos dust and developed pleural plaques. They suffered varying degrees of mental injury as they feared further negative health development
RATIO: Pleural plaques were usually symptomless and had no (foreseeable) effect on C’s health - this could not amount to damage. Negligence claims only count for actual damage, whereas recovery for future illnesses (or fear of future illnesses) are not actionable (they are only taken into account in computing the loss suffered by someone who has suffered compensatable physical injury).
What is needed for damage?:
* “An abstract concept of being worse off, physically or economically, so that compensation is an appropriate remedy.”
* “It does not mean simply a physical change, which is consistent with making one better, as in the case of a successful operation, or with being neutral, having no perceptible effect upon one’s health or capability.”
* It is not a “trivial injury” (Lord Hoffmann) or “damage which is purely minimal” but something making C “appreciably worse off”, which is “real damage” (Lord Hope) and is “material” (Lord Rodger)
* Not all forms of injury are damage: “Pleural plaques are a form of injury. But they are not harmful.”
“Proof of damage is an essential element in a claim in negligence and in my opinion the symptomless plaques are not compensatable damage.”
DRYDEN JOHNSON MATTHEY PLC [DAMAGE]
FACTS:
C developed platinum sensitisation from being negligently exposed to a higher level of platinum than safe in D’s factory. Sensitisation is symptomless but further exposure might trigger a platinum allergy, meaning C lost their job (and therefore earnings) because their company did not want it to develop into an allergy.
Court of Appeal: Platinum sensitisation is “analogous to the development of pleural plaques” in Rothwell and is not a “‘hidden impairment’ which has the potential by itself to give rise to detrimental physical effects”
RATIO: Platinum sensitivity was held to be actionable damage which is, per the requirement in Rothwell, “given the impact on their lives […] certainly more than negligible”, even where the physical injury is symptomless. Therefore, the claim is not just for pure economic loss and must be allowed.
Rejection of D’s argument: D argues this case is not real damage, unlike someone who has developed a sun sensitivity as a result of negligence, as this would affect everyday life.
Example of a coffee taster who, due to negligence, loses her ability to taste.
Distinguished from Rothwell: Unlike Rothwell, it “constitutes a change to their physiological makeup”. Cs now have to “change their everyday lives so as to avoid exposure”. “They have suffered a loss of bodily function by virtue of the physiological change caused by the company’s negligence.”
The changes “may not be as obviously harmful as, say, the loss of a limb, or asthma or dermatitis, but harmful they undoubtedly are”
What about if C wants to retire, so sensitisation has no impact?:
This “does not go to the question of whether actionable personal injury has been suffered, but to the quantum of damages flowing from that”.
Hotson v East Berkshine Area Health Authority[CAUSATION]
LOSS OF CHANCE
FACTS: D negligently failed to diagnose C’s condition after a fall. There was a 75% chance the disability would have been developed with proper treatment (so only a 25% he would have been fine) and the CA awarded C 25% of his full loss.
RATIO: This was not a loss of chance case. The state of C’s leg at the time of the breach of duty determined whether prompt treatment would have prevented the disability (so it was a matter of past fact) – the fall was the sole cause of the disability. C needed to show that treatment would have made a difference, but C could not do this, as, even with treatment, the chance of recovery was only 25%.
It is not the case that he had a 25% chance of recovery: If insufficient blood vessels were left, he had no prospect of avoiding the disability.
No discount for loss of chance: Once liability is established on the BoP, C’s loss is payable in full; it is not discounted by reducing his claim to the extent which he has failed to prove his case with 100% certainty.
Allied Maples Group v Simmons & Simmons [CAUSATION]
LOSS OF CHANCE
FACTS: C was buying a company. Their solicitor, D, failed to warn them about liabilities they were not properly protected against. C argued the solicitors should have to compensate them for the lost chance of negotiating out of the liabilities - lost chance of an opportunity to negotiate a better bargain.
RATIO: A loss of chance claim was allowed for economic loss. Causation would be established if C could show there was a “real or substantial chance as opposed to a speculative one” or a “measurable chance” that they could have negotiated for better protection. The value of the damages would be adjusted to reflect the chance of that happening
Gregg v Scott [CAUSATION]
LOSS OF CHANCE
FACTS: D negligently delayed in diagnosing C’s cancer, reducing his survival chance from 45% to 25% - he likely would have died anyway. C sued in respect of his consequent loss of expectation of life. C does not claim for the loss of an outcome (i.e. cure), as this would not have happened: C is claiming for the reduced chance of achieving that outcome.
RATIO: The claim for a 17% reduction in life expectancy was rejected. Reasserts the rule that C cannot recover partial damages for a loss of a chance in medical cases. If C cannot show on the BoP that they would not have suffered the damage if not for the negligence, there is no causation.
Distinguished from Hotson: In that case, the die was already cast by the time C got to the hospital. D could not have caused the loss of chance of saving the situation, because there was no chance by the time C got to them.
This case is different: C does have a chance of a favourable outcome which is wiped out or significantly reduced by the negligence.
Rejecting C’s argument: Almost any claim for loss of an outcome can be reformulated as a claim for a loss of chance of that outcome.
OBITER
Minority view - Lord Nicholls: C should be able to recover for the loss of chance of a favourable outcome
Baronness Hale
* If the minority’s view were followed - unfairness: “A defendant who has negligently increased the risk that the claimant will suffer harm in future […] would be liable even though no harm had yet been suffered. This would be difficult to reconcile with our once and for all approach to establishing liability and assessing damage.”
* If the minority’s view were followed - tort vs. criminal law: Allowing a 17% reduction claim would be a “good thing”, as “one of the objects of the law of negligence is to maintain proper standards”. However, doctors are not motivated by the fear of legal consequences.
“Tort law is not criminal law. The criminal law is there to punish and deter those who do not behave as they should. Tort law is there to compensate those who have been wronged.”
Lord Phillips :
On the minority: In Fairchild, a special approach to causation was used. Lord Nicholls proposes another special test where “the doctor will be liable to the extent that his negligence has reduced the chance of a cure”.
“There is a danger, if special tests of causation are deployed piecemeal to deal with perceived injustices in particular factual situations, that the coherence of our common law will be destroyed”.
Perry v Raleys Solicitors [CAUSATION]
LOSS OF CHANCE
FACTS: C brought a claim against his solicitors alleging that, due to their negligence, he was no longer able to make a claim for a services award (set up as part of a compensation scheme for injured miners).
RATIO: C had to prove on the balance of probabilities that he would have taken any necessary steps required of him to convert the receipt of competent advice into a claim to a services award within time. He failed to do so.
The law has developed a clear and common-sense dividing line between those matters which the client must prove and those which may be better assessed on the basis of an evaluation of a lost chance.
Matters the client must prove: When considering if a client would have been better off, it must be considered what the client would have done upon receipt of the competent advice. This must be proved by the claimant on the balance of probabilities and gives rise to an all or nothing outcome.
Matters assessed based on loss of chance: When the supposed beneficial outcome depends upon what others would have done.
Barnett v Chelsea Hospital [CAUSATION]
BUT FOR TEST
The preliminary filter in causation
FACTS: C went to hospital due to vomiting but was told to go home. C later died of arsenic poisoning.
RATIO: Introduced the “but for” test - requires courts to consider whether C’s damage would have occurred if D had not been negligent. The hospital had breached their duty of care, but there was no factual causation as there was more than a 50% chance C would have died anyway. On the balance of probabilities, the negligence did not cause the injury.
Wilsher v Essex AHA [CAUSATION]
BUT FOR CAUSATION
preliminary filter
FACTS: A premature baby was negligently given too much oxygen and developed blindness. Excess oxygen was a known cause of this condition but in this case it was one out of five possible causes.
RATIO: The but for test was not satisfied. The test of material contribution to damage per McGhee does not apply where there are multiple possible causes of the damage (as opposed to damage caused by the cumulative effects of multiple factors). There is no liability. Adding a possible cause is not the same thing as a material contribution.
It was impossible to tell here which of the five factors had caused the blindness, whereas in McGhee, the dermatitis was caused by one factor - brick dust.
Williams v Bermuda Hospitals Board on this case: “A claim will fail if the most that can be said is that the claimant’s injury is likely to have been caused by one or more of a number of disparate factors, one of which was attributable to a wrongful act or omission of the defendant.”
“The fact that the administration of excess oxygen was negligent did not warrant an inference that it was a more likely cause of the RLF than the various other known possible causes.”
Bonnington Castings Ltd [CAUSATION]
MATERIAL CONTRIBUTION TEST
FACTS: C developed a lung condition (pneumoconiosis) both as a result of dust D had negligently left (by failing to provide an extractor fan) by breaching statutory factory requirements and other dust that C had inevitably come across while working (innocent dust).
RATIO: C only needed to show that the dust from D’s negligence had made a material contribution to the disease but did not need to show the contribution was over 50%. As this was made out, D was liable. Material contribution test applied to an indivisible injury.
What must C show?: On the BoP, “the breach of duty caused, or materially contributed to, his injury”.
Indivisible injury meaning: “If that material [that caused the illness] comes from two sources, it cannot be wholly attributed to material from one source or the other.”
What does material contribution mean?: “What is a material contribution must be a question of degree. A contribution which comes within the exception de minimis non curat lex is not material, but I think that any contribution which does not fall within that exception must be material.”
“Small though the contribution of pollution may be for which the defenders are to blame, it was continuous over a long period. In cumulo it must have been substantial, though it might remain small in proportion.”
Case decided on the basis that it was indivisible, but it has later been proven to be divisible. However, Williams says it must be taken as precedent for indivisible injury cases.
Williams v Bermuda Hospitals Board [CAUSATION]
MATERIAL CONTRIBUTION
see more in detail - v importnant case !
FACTS: D’s negligent delay in removing C’s appendix led to it rupturing, causing sepsis, causing heart and lung damage. However, he could not prove on the balance of probabilities that he would not have suffered from sepsis if not for the delay.
RATIO: Where C’s condition is caused by a single agent (the sepsis) and progressively gets worse over time, a delay in treatment which materially contributes to C’s injuries is enough to infer that D’s negligence was a material contribution and hold D fully liable.
“As a matter of principle, successive events are capable of each making a material contribution to the subsequent outcome.”
Why is the but for test not used in indivisible injury cases (on Bonnington)?: This involves a “false ‘either or’ premise”. Instead, the relevant question is “whether the particles from the swing grinders made any material contribution to the whole.”
Holmes v Poeton Holdings Ltd [CAUSATION]
FACTS: C was diagnosed with Parkinson’s disease, alleging breach of statutory duty by D (employer) who exposed him to unsafe levels of TCE. The trial judge held that C’s exposure to HCE created a material contribution to the disease, even if but for causation was not proven.
D’s argument: A material contribution test cannot apply to indivisible injuries (i.e. Parkinson’s)
RATIO: Divisible disease – definition: “Once initiated, their severity will be influenced by the total amount of the agent that has caused the disease”.
i.e. noise-induced hearing loss and pneumoconiosis.
And asbestosis (Holtby): All of the victim’s exposure to asbestos will contribute towards the severity of his eventual disease.
The burden rests on C to prove D who has been sued was responsible for a whole or a quantifiable part.
Divisible diseases are treated differently: As explained in Holtby.
Indivisible disease – definition: Once contracted, “its severity will not be influenced by the total amount of the agent that caused it”.
i.e. Mesothelioma: Although the risk of developing it increases in proportion to the quantity of asbestos inhaled, once caused, the condition is not aggravated by further exposure; the severity is not affected by variations in exposure.
On Bonnington – this only applies to indivisible diseases: “Whatever the reason”, the claim was treated “as if it were a claim in respect of an indivisible disease”, perhaps because D did not raise the point, or because it was not possible to tell.
“The statements of principle in Bonnington about making a material contribution to ‘the disease’ were not expressed in terms that were appropriate to allocation of responsibility for divisible diseases”.
D in this case can draw no comfort from the fact that Bonnington was about pneumoconiosis, which is known to be a divisible disease: “the Bonnington principle was expressed in terms that were appropriate to indivisible diseases rather than divisible ones”.
D is thus liable in full if he has made a material contribution to injury.
Simmons, Barker and Sienkiewicz were all indivisible injuries.
Bailey – indivisible injury case: Clearly shows Bonnington applies to indivisible disease cases (brain damage).
Has been subject to criticism: Questionable how a principle first enunciated in a divisible disease case is now one that bypasses the “but for” test in cases that do not come within Fairchild.
Williams – also treated as an indivisible injury case.
Fairchild v Glenhaven Funeral Servirces [CAUSATION]
MATERIAL CONTRIBUTION OF RISK
FACTS: Cs contracted mesothelioma due to exposure to asbestos at work. Medical evidence could not establish which D had caused the exposure, as each C had had multiple employers
RATIO: Each D “materially increased” the risk of the onset of mesothelioma through asbestos exposure. Therefore, even though the but for test could not be satisfied, each D was liable when the possible causes of C’s injury are all the same agent (here, it was asbestos).
Lord Nicholls: “So long as it was not insignificant, each employer’s wrongful exposure of its employee to asbestos dust, and hence, to the risk of contracting mesothelioma, should be regarded by the law as a sufficient degree of causal connection.”
Lord Hoffmann: “The grounds upon which the House was willing to formulate a special causal requirement rule in McGhee seem to me equally applicable in this case.”
Applying the “but for” test would lead to the outcome that, since it could not be proven which D caused the mesothelioma, none of them caused it. Should there be a “variation or relaxation” in “special circumstances” of this test?
Harsh?: It may be “rough justice” to impose liability on Ds who, if medical evidence were obtained, were not liable. However, C would recover no damages otherwise and there is a “strong policy argument” in favour of holding D liable, especially as C did nothing wrong, unlike D.
Lord Hoffmann: “The substantive duty of care would be emptied of all practical concerns so far as victims are concerned” if McGhee did not apply
Barker v Corus [CAUSATION]
MATERIAL INCREASE IN RISK
FACTS: The argument that someone who is a victim of multiple torts ends up worse off did not apply here, as there was only one tortfeasor and most exposure was due to the victim. The harm was reconceptualised as the risk of harm, awarding proportionate damages.
Cs contracted mesothelioma due to exposure to asbestos at work. Medical evidence could not establish which D had caused the exposure, as each C had had multiple employers. However, one of the Ds had become insolvent and one of the Cs had been exposed to asbestos during periods of self-employment.
RATIO: Ds were liable in proportion to the extent that they had contributed to exposure. D should not be liable for more than the damage which he caused: this would “smooth the roughness of the justice which a rule of joint and several liability creates”.
Mesothelioma is an indivisible injury because it is likely caused by a single exposure and is not made worse by further exposure.
“It should be irrelevant whether the other exposure was tortious or non-tortious, by natural causes or human agency or by the claimant itself”, as this “does not detract from the exposure for which the negligent employers had been responsible.”
Fairchild does not apply in multiple agent cases and is a “narrow exception”, rather than an “overarching principle”.
Lord Hoffmann on the Fairchild ratio:
Only Lord Hutton and Rodger suggested that “a defendant who had created a material risk of mesothelioma was deemed to have caused or materially contributed to the contraction of the disease”. “The other members of the House [Lords Bingham, Nicholls and Hoffmann] made it clear that the creation of a material risk of mesothelioma was sufficient for liability.”
Lord Nicholls in Fairchild: “The court is not, by process of inference, concluding that the ordinary ‘but for’ standard of causation is satisfied. Instead, the court is applying a different and less stringent test.”
Lord Hoffmann in Fairchild: “A breach of duty which materially increased the risk shall be treated as if it had materially contributed to the disease. I would respectfully prefer not to resort to legal fictions and to say that the House treated a material increase in risk as sufficient in the circumstances to satisfy the causal requirements for liability.”
DISSENTS AND OBITER –> see notes !
Sienkiwwicz v Greif
FACTS: Cs had mesothelioma from wrongful exposure albeit in small amounts. Ds argued that they should only be liable if it was proven they had doubled the risk of C getting mesothelioma
RATIO: The Fairchild rule applies if there is only one tortious exposure by D and other non-tortious exposure. There is no requirement to show a doubling of the risk.
The defendant in Bonnington did not argue that damages should be proportionate.
s3 Compensation Act “does not preclude the common law from identifying exceptions to the ‘material increase of risk’ test, nor from holding, as more is learned about mesothelioma, that the material increase of risk test no longer applies” (instead using the balance of probabilities test).
Even though its effect was to reverse Baker in mesothelioma cases.
Fairchild and Barker “developed the common law by equating ‘materially increasing the risk’ with ‘contributing to the cause’ in specific and limited circumstances”.
Lord Brown: “Fairchild had recognised a new tort, that of negligently increasing the risk of personal injury (although, of course, the injury had to eventuate before any tort was committed)”, meaning each D should only be liable for his contribution to the loss.
“The damage was no longer to be treated as the indivisible mesothelioma but rather as the readily divisible creation of the risk of developing mesothelioma.”
Lord Phillips: “If, under the Fairchild principle, exposure had been treated as if it had actually contributed to the disease, the conventional approach would have resulted in all those responsible for exposure being held jointly and severally liable”.
However, Fairchild treats a defendant liable “for contributing to risk, not contributing to injury. […] As risk or chance was infinitely divisible, each defendant could be held liable for his contribution to the risk.”
OBITER –> see notes
