Negligence 3 (Damage to the claimant)

Question 1

Introduction

Answer 1

Even if the defendant did owe a duty of care to the claimant, and even if that duty was breached, the defendant may still not have to compensate the claimant if the breach was not the cause of the damage.
The issue (also known as causation) can be sub-divided into two areas.
1) did, as a question of fact, the breach cause the damage (causation in fact).
2) should, as a matter of policy, the court regard the damage as being too remote from the breach (causation in law or remoteness of damage).

Question 2

Causation in fact

Answer 2

• To test whether the defendant was responsible for the damage suffered by the claimant the courts apply the ‘but for’ test. Would the damage have occurred but for the action or inaction of the defendant.
• If the damage would have occurred anyway, the defendant is not to blame.
• If, however, the damage would not have occurred, then the breach must be the cause of the damage

Question 3

Barnett v Chelsea & Kensington HMC

causation in fact example

Answer 3

Here a night watchman’s tea was spiked with arsenic on New Year’s Eve. He went to hospital, but the casualty doctor did not examine him, sending him home. Later that day he died. His widow sued the hospital, but lost.
The Doctor owed a duty of care and was in breach by not examining B. However, even if he had examined him, B would not have lived due to the difficulties in determining what was wrong in time.
B’s death was not caused by the doctors negligence – he was murdered by persons unknown.

Question 4

Chain of causation

Answer 4

• If, however, there has been a break in the ‘chain of causation’ then the defendant will not be liable for the injury that the claimant has suffered.
• The next few slides deal with three separate types of intervening act that break the chain –
• Natural events
• Acts by third parties
• The claimant’s own acts

Question 5

Natural events

Answer 5

Carslogie v Royal Norwegian Govt.
A ship owned by RNG damaged in collision with ship owned by C in 1941. Temporary repairs in Scotland. Ship sailed to USA for full repairs. During trip to US ship suffered weather damage in severe storm. Both sets of damage repaired at same time.
RNG’s claim for loss of profits during repair rejected as the weather damage took longer to repair than the collision damage.
The natural event broke the chain of causation as the damage to the ship did not render it more vulnerable to weather damage

Question 6

Intervening act of a third party

Answer 6

In Knightley v Johns there were two RTAs. The first RTA resulted in the police being sent to the scene. The second RTA was caused by the police inspector’s failure to close the tunnel after the first RTA. C injured in the second RTA.
The police motorcyclist who was injured sued the driver who caused the first RTA (and others), but lost against that driver because it was not the first accident that led to his injuries, but the neglect of the police inspector that caused the second RTA

Question 7

More than one cause of damage

Answer 7

• What happens where a claimant is unlucky enough to suffer a string of misfortune caused by different events?
• The court has to decide whether it is the defendant who is responsible for the injury to the claimant.
• If the court sees that there is a clear link between the event and the damage, the claimant may succeed.

Question 8

Medical treatment

Answer 8

Webb v Barclays Bank
W, who had suffered polio as a child, worked for BB and tripped on their premises injuring knee affected by polio. Left in pain and with grossly unstable knee
Eventually consultant recommended amputation of leg above knee, which was done in 1995. W sued BB. A third medical opinion in 1999 cast doubt on the advisability of amputation. The case hinged on the division of damages between the bank and the hospital employing the surgeon who amputated her leg.

Question 9

What if the intervening act was the claimant’s own act?

Answer 9

This will depend on whether the claimant acted reasonably.
In McKew, the Ct held that McKew had acted unreasonably when he descended a flight of stairs unaided shortly after an injury that rendered one of his legs likely to give way without warning.

Question 10

Several causes

Answer 10

What if the injury that the claimant eventually ends up with is the result of two or more incidents?
The answer may depend on whether both the original and any subsequent injury is the result of human intervention or if the second or subsequent event was the result of natural causes.
Contrast Baker v Willoughby with Jobling v Associated Dairies.

Question 11

Baker v Willoughby (several causes example)

Answer 11

Here the C’s leg was injured in an RTA, so he sued the driver of the car.
Shortly before the hearing, C was shot in the same leg during a robbery at his place of work. This resulted in C’s leg being amputated.
D claimed that he should only have to pay damages from the date of the accident to the date of the amputation as the injury was then overwhelmed by the amputation.

Question 12

Proof of Causation

Answer 12

The claimant has to prove, on a balance of probabilities, that the Defendant is responsible for the injuries sustained.
Sometimes this can be very difficult. However the Courts have been flexible on occasions.
Bonnington Castings v Wardlaw

Question 13

Bonnington (proof of causation example)

Answer 13

W suffered lung disease as a result of exposure to silica dust in the workplace.
W had worked on a pneumatic hammer. There was no way of protecting him from inhaling dust from the hammer, but there was a way of preventing silica dust from other sources being inhaled. D had not taken appropriate steps. When sued the D argued that it could not be established that W had inhaled the dust that it should have prevented.
Held: As the preventable dust was not a negligible amount, it must have contributed to C’s disease, so D had to pay

Question 14

s3 Compensation Act 2006

Answer 14

This applies only to mesothelioma cases and restored the pre-Barker position that the HoL had decided in Fairchild –
Joint & several liability
i.e. Although the defendants could claim contributions from each other, the Ct could order one D to pay 100%
Used when one or more of the employers or their insurers has ceased to exist in the interim period.

Question 15

Causation in Law or Remoteness of damage

Answer 15

Establishing a factual causation is not enough to claim damages. Claimants also need to show that the injury sustained is not too remote in law.
The Courts regard it as unfair that a Defendant be made to pay for events that are far removed from the original breach of duty.

Question 16

The Wagon Mound

Answer 16

Traditionally, cases concerning ships or shipping disputes are known by the name of the ship involved. This is irritating as you also need to know the names of the parties to find the case in an alphabetical list.
The proper title of the Wagon Mound case is –
Overseas Tankships v Morts Dock & Engineering Co
It is a Privy Council case on appeal from Australia

Question 17

The Wagon Mound Example

Answer 17

The WM was moored about 550m away from Morts dock in Sydney Harbour, discharging gasoline products and taking on bunkering oil. Oil negligently spilt floated across harbour and under/around Morts wooden jetty. A spark caused the oil to ignite and this caused extensive damage to Morts dock and the ships moored there.
The evidence showed that bunkering oil was not known to catch fire when spread on water and the WM’s owners could not, therefore, have reasonably foreseen the fire – no liability.

Question 18

Remoteness

Answer 18

Once it is established that damage of the kind sustained by the claimant is foreseeable, the likelihood of it occurring is irrelevant.
The injury has to be of the type or kind as the harm that could have been foreseen.
Bradford v Robinson Rentals – C required to drive 400/500 miles in a vehicle with no heater in January 1963. C suffered frostbite.
The Ct found that, whilst frostbite was rare in the UK, it was a foreseeable injury, being one caused by exposure to the cold weather

Question 19

Psychiatric injuries

Answer 19

It used to be the case that the courts regarded psychiatric injury with grave suspicion – it can be difficult to verify independently.
There was a difference, in the judicial mind, between physical and psychiatric injury.
This changed in Page v Smith. Here the nervous shock from being involved in an RTA triggered a re-appearance of the claimant’s ME and prevented him from working ever again. The D appealed against the large sum of damages awarded

Question 20

Remoteness and Policy

Answer 20

Remoteness can also be an issue of policy. The courts may refuse to compensate something that they find unreasonable or undesirable.
In Pritchard, a man was unable to get compensation for the cost of a divorce, even though the divorce was a consequence of the personality change he suffered after a head injury caused by D’s negligent driving caused brain damage.
The CoA held that the financial consequences of divorce were either too remote, or economic loss or excluded as a matter of public policy.

Question 21

Meah v McCreamer (remoteness and policy example)

Answer 21

This is another RTA/head injury/personality change case. Here the change was blamed for C’s rape of two women.
C got damages for the injury he suffered but was not allowed to claim for the damages he had to pay to his victims.
The car driver owed no direct duty to the two victims and public policy prevented the C from claiming an indemnity for his criminal acts.