Negligence: Actionable Damage Flashcards
Remember the four questions when discussing negligence: 1. Is there a duty of care? 2. Has there been a breach? 3. Is there actionable damage? 4. Are there any defences?
Hinz v Berry (1970)
C and her husband were out driving for the afternoon with their four children and four children whom they were currently fostering. The group stopped in a lay-by for a picnic and the plaintiff took one of the children across the road to pick flowers. D was driving recklessly and crashed into the couple’s van, where the plaintiff’s husband and the other children were making preparations. Most of the children suffered injuries, and the plaintiff’s husband was so seriously hurt by the crash that he died at the scene three hours later. P witnessed the entire event and its aftermath, developing long-term ‘morbid depression’ as a consequence.
It was held that psychiatric illness (e.g. nervous shock) can result in damages, but feelings of grief or sadness cannot equate to any form of tort action (actionable damage) - Lord Denning, at p. 42. In this case, C was awarded damages for her recognised psychiatric illness.
Rothwell v Chemical & Insulating Co (2008)
Many years ago, the claimant-employees were exposed to asbestos dust. They had subsequently developed pleural plaques (harmless proof of exposure to asbestos dust, not indicative of asbestosis). They all feared for developing asbestosis and thus suffered mental injury to varying degrees. It was held that there was no actionable damage here, as you need proof of the damage in a claim of negligence. Physical damage is not enough (Lord Hoffmann [7]).
‘De Minimis Non Curat Lex’: The Law does not care about the tiniest things. See Lord Hope at [47]: “Damages are given for injuries that cause harm, not for injuries that are harmless.”
Dryden v Johnson Matthey plc (2018)
The claimant-employees developed platinum sensitisation (just short of an allergy) due to D’s breach of health and safety regulations/common law duty at their workstation. They were thus forced to move away from the work area where platinum was used. Medically, the sensitisation itself was not particularly harmful, but the ‘real’ consequence here was that the claimants could no longer do the same job. There is thus actionable damage, as their bodily capacity to work has been impacted - it has made them ‘worse off’ in enjoying life in a manner “certainly more than negligible” (Lady Black, [40]).
Rothwell is therefore still applied, but a different view is being formed in this instance.
Lady Black goes on to say that it is a question of fact whether C has suffered material damage by any physical changes to his body. This question of fact must be determined “in light of the legal principles applicable to personal injury actions” [48]. It is questionable whether the SC is still following Rothwell at this point, as they are implying that we impose an ex-post facto analysis of actionable damage: liability will occur if the consequences of what has occurred to you are sufficiently serious.
Shaw v Kovac (2017)
This case restricts the formulation of new forms of damage. Here, damages for pain, suffering, and loss of amenity were awarded (C was the daughter of an 86 year old hospital patient who died during an operation which he did not formally consent to). ‘Interference with personal autonomy’ as a separate, conventional ‘head’ of recovery was rejected. It was held that values of personal autonomy, etc. are built into the ability to recover for negligence in the first place (Davis LJ [69]), and can be reflected in the award of damages. More generally, Courts should be reluctant to entertain new harms/losses suffered.
