Negligence - Causation and Remoteness Damage Flashcards
Factual Causation
Can C establish that D’s breach of duty is the factual cause of the harm that C has sustained?
But for test
Principle: C. must show that, but for D.’s breach of duty, C. would probably
have avoided the damage of which C. now complains.
1 - how has D breached the duty to C?
2 - what harm has C sustained?
3 - what harm would C have sustained if D had not breached his duty?
^^^^If 3 is different from 2 then the but for test has been met
BUT FOR TEST –> Cork v Kirby Maclean Limited (1952) CA:
> C had epilepsy & not allowed to work at heights, C. gained employment with D. as a painter and didn’t tell D about his epilepsy
C was working on a platform at height. Platform did not correspond with regulations. C. fell to his death.
> Was the cause of the death him not telling D about his epilepsy or the lack of regulations? –> IF THE DAMAGE WOULD HAVE HAPPENED ANYWAYS THEN IT IS NOT FACTUAL CAUSATION
OUTCOME:
> BUT for test applied and met = C.’s claim succeeded …
> However, since the claimant’s conduct had contributed to his death, at the DEFENCES stage, C.’s claim was reduced for contributory negligence
BUT FOR TEST –> Barnett
FACTS:
> C, unknowingly drank tea which had poison in it, after vomiting for 3 hours, he attended A&E but a doctor refused to see him, C. died 5 hours later.
> C.’s widow claimed in negligence against the hospital.
OUTCOME:
> Duty – the hospital owed a duty of care to C. (pre-existing relationship of hospital to patient)
> Breach – Doc breached by failing to examine C (falling below a responsible body of professional opinion)
> Causation – C. would have died regardless any medical treatment
The breach was NOT a factual
cause of C.’s death = THE OUTCOME WOULD HAVE BEEN THE SAME
BUT FOR TEST - McWilliams v Sir William Arrol & Co Ltd.
D. in breach of duty to provide a safety harness to C.
C. fell to his death. C.’s estate claimed against D.
What would have happened if D. had not breached their duty? D. adduced
strong evidence that C. rarely, if ever, used a safety harness.
Held: if a harness had been provided, it was reasonable to infer that C. would
not have worn it (and so would have suffered the same injury regardless of
D.’s breach of duty). THE OUTCOME WOULD HAVE BEEN THE SAME
BUT for test applied but NOT met: C.’s claim failed
DUTY NEXUS QUESTION
MEADOWS v KHAN 2021:
Is there a connection between the loss and the subject matter of D’s duty
‘the duty nexus question) may in many cases be answered straightforwardly because the defendant was unquestionably under a duty
of care to protect the claimant from the harm for which he or she claims
damages.’
LEGAL CAUSATION / legal responsibility
Two principles to consider here:
1 - Remoteness of damage –> Is the actionable harm sustained by the claimant too ‘remote’ from the defendant’s breach of duty?
2 - Intervening acts –> Has there been an intervening act between the defendant’s breach of duty and the harm sustained by the claimant that has broken the chain of causation so that the defendant’s breach of duty is not regarded as being the legal cause of the harm to the claimant?
Remoteness of Damage
Principle: A claimant is unable to recover damages which are too ‘remote’ / regarded as not being legally caused by the defendant’s breach of duty
Modern ‘reasonable foreseeability’ test
Overseas Tankship v Morts Dock & Engineering Co. (The Wagon Mound)
Oil escapes from D.’s ship, ‘The Wagon Mound’, into a harbour and spreads
Welding was being done at a nearby wharf by C. –> Spark from the welding ignited the oil and so fire spread to C.’s wharf and equipment.
C. brought a claim against D.
Damage too remote?
Held: damage was direct and was recoverable BUT then it was reversed and D was not liable
All about reasonable foreseeability rather than hindsight
1- Principles of Legal Causation - TYPE OR KIND OF DAMAGE MUST BE FORESEEABLE
WAGON MOUND 1961:
The type or kind of damage/harm which C. has sustained must be reasonably foreseeable to D or D.’s comparator at the time of D.’s breach of duty:
What type of harm / damage?
Courts usually adopt a wider approach = e.g. physical or psychiatric injury of any kind
Bradford v Robinson Rentals 1967 –> evident to see that a cold injury would be foreseeable, but what about frostbite? –> led to court adopting a wider approach to define harm/damage and that frostbite was the same as any other cold injury
2- Principles of legal causation - D IS LIABLE EVEN IF C’s DAMAGE IS NOT REASONABLY FORSEEABLE
It doesn’t matter the way in which the harm comes about to C whether it is reasonably foreseeable or not
Hughes v Lord Advocate 1963:
> There was a tent over a manhole surrounded by paraffin lamps –> 8 y/o boy dropped lamp down hole = explosion and C. badly burned.
> Held: type of damage (burn) was foreseeable. That the burns were sustained in an unforeseeable way did not make the damage too remote.
3 - Principles of legal causation - D REMAINS LIABLE EVEN IF DAMAGE TO C IS GREATER THAN REASONABLY FORESEEABLE
IT DOES NOT MATTER if C.’s actual type or kind of harm is MORE SERIOUS than the type or kind of harm that was reasonably foreseeable to D./D.’s comparator at the time of the breach of duty.
Hughes v Lord Advocate 1963:
> ‘…the defender is liable, although the damage may be a good deal greater in extent than was foreseeable…’
4 - Principles of legal causation - D MUST TAKE C AS HE FINDS HIM
Eggshell Skull Principle:
D will still be liable even if C.’s actual type or kind of harm is more serious than the type or kind of harm that was reasonably foreseeable to D./D.’s comparator at the time of the breach of duty, BECAUSE OF C.’S PRE-EXISTING VULNERABILITY TO THAT SERIOUSNESS OF HARM
Smith v Leech, Brain & Co 1962:
> Pre-malignant cells became cancerous after a burn to his lip.
> Could D have reasonably foreseen damage of a type (e.g. a burn)
> D was liable as a ‘tortfeasor takes his victim as he finds him’ = D must take C as he finds him
Eggshell Skull Principle
Applies to other characteristics and not just C’s physical vulnerability to harm includes:
Psychiatric injury claims: ‘eggshell personality’: Page v Smith (1996)
Financial loss claims: ‘eggshell wallet’ —> D. should bear the consequences if it was reasonably foreseeable that C.’s losses are greater because of C.’s financial situation: Lagden v O’Connor (2004) HL
5 - Principles of legal causation - D is not liable for the damage caused by a break in the chain of causation
A new act intervening is another way of expressing that the harm which C. sustains (after the act) is too remote / not reasonably foreseeable at the time of D.’s breach
The test: Is the intervening cause within the foreseeable risk created by D?
> Yes –> chain of causation will not be broken
> No –> chain of causation will not be broken and D will not be liable for any future losses caused by the intervening act
Types of Intervening acts - NATURAL ACT
An act of nature may break the chain of causation, if it was not reasonably foreseeable BUT VERY RARELY DOES
Carslogie Steamship Co. v Royal Norwegian Government (1952):
> C.’s ship damaged by D.’s negligence. C.’s owners put the ship to sea. Ship damaged during a very heavy storm.
> The storm was a novus actus (intervening act)
Types of intervening acts - CONDUCT OF C (McKew v Holland)
Principle: The chain of causation may be broken by a ‘highly unreasonable act’ of C. which is not reasonably foreseeable to D./D.’s comparator at the time of D.’s breach of duty.
McKew v Holland and Hannen & Cubitts:
> C. sustained injury at work. Employers admitted liability. Left leg left in a weak state.
> 3 weeks later, C. was descending a steep staircase. Left leg gave way and C. jumped 10 stairs to the bottom of the staircase. Further injuries.
McKew Held: chain of causation broken by C.’s unreasonable conduct:
> Per Lord Reid –> ‘If a man is injured in such a way that his leg may give way at any moment, he must act reasonably and carefully.
Types of intervening acts - CONDUCT OF C (Wieland v Cyril Lord Carpets)
C. sustained injury in a bus accident. Neck injury.
Soft cervical collar fitted. Neck in a fixed position.
Difficult to adjust to using bifocal glasses with a collar and ended up falling down 1 step very soon after she was fitted with a collar
Sustained injury to ankles.
Held: No unreasonable conduct of C. breaking the chain of causation. C. had not behaved unreasonably
Types of Intervenign acts - C injured while rescuing
A rescue attempt will usually be within the foreseeable risk created by D. (Haynes v Harwood (1935) CA
If a rescue attempt is made by C., it is reasonably foreseeable that it might not be perfectly free from injury to C
It is (usually) fairer to find that C.’s injury when rescuing is NOT a highly unreasonable act breaking the chain of causation
Types of Intervening acts - Acts of a 3rd party (negligent/careless) - Robinson v Post Office
The ‘chain of causation’ between D.’s breach of duty and C.’s harm may be broken by an intervening negligent act of a third party
Robsinson v Post Office:
> C. sustained leg injury when working for D,
> C. went to doctor, X., for an injection. X didn’t follow correct procedure for allergic reactions
> C. developed brain damage from allergic reaction to the injection
Held–> Since C.’s symptoms appeared after the 30 mins it would have taken to follow normal procedures. SO X.’s breach of duty did NOT contribute to C.’s injuries breaking the chain of causation
It was reasonably foreseeable that C. would sustain physical injury and that C. would require treatment for that injury and and an injury from the injection IS the same type of injury as physical injury to leg caused by D.
Eggshell skull rule applied –> D. liable to C. even though the same injury is greater than that what should have been foreseen (Hughes v Lord Advocate). SO –> D. liable for C.’s injuries, including brain damage.
Types of Intervening acts - Acts of a 3rd party (Criminal wrongdoing)
DIDN’T BREAK CHAIN OF CAUSATION:
> Stansbie v Troman (1948) –> theft did not break the chain of causation (D. under a duty to lock up; i.e. the risk of a 3rd P causing loss to C. by a danger created by D.)
> Home Office v Dorset Yacht Co. Ltd offenders’ acts did not break the chain of causation – it was ‘the thing very likely to happen’
DID BREAK CHAIN OF CAUSATION:
> Lamb v Camden London Borough Council (1981) CA damage caused by squatters did break the chain of causation
