Negligence - Causation and Remoteness of Damage Flashcards
1
Q
Introduction
A
- Damage is essential in negligence, unless Cl has suffered damage there is no action.
- Cl must prove damage suffered was caused by Def’s breach of duty and it wasnt too remote. Referred to as causation in fact and causation in law.
- causation of fact q is whether as a matter of fact damage was caused by breach of duty. No action unless established duty was breached
- remoteness of damage arises where causation in fact established but J must decide if damage was legal responsibility of Def - cut off point where Def ceases to be liable is established and beyond this point damage is too remote. Rules re remoteness of damage operate to limit overall extent of Def liability to Cl - when further event happens after breach of duty that contributes to damage, later event may be novus actus interveniens. Breaks chain of causation and renders new damage too remote from Def breach of duty.
2
Q
“But for” test
A
- breach of duty is factual cause of harm if harm wouldnt have happened but for breach of duty.
-Barnett v Chelsea and Kensington Hospital Management Committee 1969 - Cl husband complained of vomiting and pain when attended Def hospital, no exam ordered and sent to own GP. 5hrs later died from arsenic poisoning. Def was in breach of duty by not examining him but tests show he would have died even if Dr examined him. Diagnoses and treatment couldnt have been effective in preventing death, as would have died regardless of breach of duty, breach wasnt cause of his death. - H of L considered causation in context of omission to act in Bolitho v City and Hackney Health Authority 1997 but Lord Browne-Wilkinson said problem as “more apparent than real” - young child with history of respiratory problems was in hospital under obs. Had 2 episodes of difficulty in breathing, observed by nursing staff and Dr on duty was asked to attend. On both occasions, child recovered quickly and Dr didnt attend on 3rd, fatal episode. In last, respiratory collapse was total and child suffered brain damage - procedure to provide airway (intubation) would have ensured last episode wasnt fatal if had been done before last attack started. Q arose whether Dr would or should have intubated if she attended. Evidence was that particular Dr wouldnt have intubated and was supported by responsible body of medical opinion. Neg failure to attend boy didnt cause death
- Cl required to prove on balance of probabilities that Def breach of duty of care caused damage complained of: “Ct decides on balance of probabilities. Anything that is more probable than not it treats as certain”. (Lord Diplock in Mallett v McMonagle 1970)
- lower standard of proof is tort trial always needs to allocate responsibility to one party, someone always has to be responsible for loss. If Def doesnt comp Cl for loss, Cl bears loss.
-Dingley v Chief Constable of Strathclyde 2000 - Cl suffered whiplash in accident that was attributable to neg of his employer, was off work for 3 days only but 17 days after accident found to have early symptoms of MS and condition then deteriorated rapidly. Evidence that onset of MS is preceded by trauma to patient. H of L held Cl failed to provide actual link on these facts between original accident and onset of disabling condition.
-Chester v Afshar 2004 - Def neurosurgeon advised Cl to undergo op to remove 3 discs despite reluctance to have surgery but undisclosed (1-2%) risk of nerve damage. Cl agreed and suffered nerve damage with serious consequences. H of L held surgeons neg failure to warn of inherent and unavoidable risk of procedure had caused damage, if Cl was aware or risks probably wouldnt have had surgery that caused damage. - said she couldnt have been said to have given informed consent to surgery in full legal sense. Right of autonomy and dignity can and ought to be vindicated by narrow and modest departure from traditional causation principles.
3
Q
Multiple causes
A
- In cases of traumatic harm, such as injury to pedestrian by car, mere presence of car on road and evidence of impact between car and human can be treated as proof of cause of pedestrian’s injuries. Greater difficulty when multiple possible causes of damage sustained as standard “but for” test can produce unfair or absurd result, so Ct can deviate from it.
- Wilsher v Essex Area Health Authority 1988 - premature baby suffered blindness, junior Dr gave him too much oxygen that can cause blindness but were 4 other factors that could be cause of blindness, unrelated to Drs neg, and was scientifically impossible to tell which of the 5 caused it. Was only 20% possibility that Dr neg had caused blindness so claim failed, it was not more probable than not that Drs breach of duty caused blindness.
- another exception to usual but for test can be seen in cases like Bonnington Castings Ltd v Wardlow 1956 - Cl developed pneumoconiosis after breathing air that contained particles of silica during course of employment, was established that Def was in breach of stat duty to provide extractor fan but also risk of being exposed to silica anyway.
- Ct had to determine liability by examining 2 possible causes, guilty dust from breach of duty and innocent dust that would have been there anyway. H of L held in such cases obligation was on Cl to prove that neg cause materially contributed to injury.
- material contribution test only applies to test involving divisible injury where 2 or more causes act together to cause harm or make it worse and doesnt apply to what are known as “indivisible” injuries such as in McGhee v National Coal Board 1973 where Cl contracted dermatitis after cleaning out Def brick kilns. No washing facilities provided and Cl had to return home unwashed, Cl was unable to show washing would have prevented dermatitis but was able to show that absence of washing facilities materially increased the risk of skin problems developing. Def neg in not providing washing facilities was held to be cause of Cl dermatitis. - confirmed it is appropriate to apply this case in exceptional circumstances.
-Fairchild v Glenhaven Funeral Services 2002 - victims suffered mesothelioma caused by working with asbestos. Was thought to be caused by as little as one asbestos fibre which may be dormant for many years before fatal condition manifests itself. Considered that condition was not caused by accumulation of fibres. Once diagnosed short life expectancy and some involved in this already died. Victims had breathed in asbestos fibres at different workplaces while employed by different employers in working lives. - acknowledged need to do justice and provide redress in circumstances where each employer Def was in breach of duty of care owed to Cl. Shouldnt preclude recovery of comp as not sure which employer caused it.
- unusual situation where medicine and science couldnt identify which fibre led to development to deadly tumour with any certainty.
-Barker v Corus (UK) plc 2006 - appeal by employers who had been liable to former employees for mesothelioma, Cl been exposed to asbestos dust by Def employer but also other employers. H of L confirmed principles in Fairchild that worker who contracted after being wrongfully exposed to asbestos at various times by more than one employer could sue any of them, even though cant prove which exposure caused disease. Applies even though not all potential causes of damage tortious and non-tortious didn’t have to be created by someone who was tortfeasor. All required was proof that neg exposure had materially increased risk of disease developing. - Law Lords then considered quantification of likelihood that damage materialised from particular Def to determine share of damage that should be attributed to them, by way of fairness found should be severally liable only to extent of risk created by breach of duty, major blow as not all potential Defs still be in existence to be sued.
- Gov reversed effect of Barker v Corus (UK) by leg in form of s3 Compensation Act 2006 - only to victims who have contracts mesothelioma as result of exposure to asbestos and responsible person either negligently, or in breach of stat duty caused exposure. S3(2) states responsible person shall be liable: (a) in respect of whole of damage caused to victim by disease, (b) jointly and severally with any other responsible person
- as result in mesothelioma cases no longer be need to determine share of responsibility of each responsible person and Cl will be protected if one or more of those responsible are no longer in existence or worth suing.
4
Q
Multiple causes (2)
A
-Sienkiewicz v Greif 2011 and Knowsley Metropolitan Borough Council v Willmore 2011 - Sup Ct applied s3 CA 2006. Cls suffered mesothelioma owing to exposure of asbestos fibres while in employment of Defs. Exposure to Def only minimal, Ct of A held minimal exposure didnt excuse Def liability as long as exposure more than doubled risk of developing disease. Sup Ct dismissed and held s3 CA 2006 holds Def liable when conduct materially increased Cl risk of developing disease and test for deciding contrib is material is same as common law (McGhee v National Coal Board) that excludes minimal risk
-Clough v First Choice Holidays and Flights Ltd 2006 - Cl while under influence of alcohol slipped off wall dividing 2 pools and fell into small pool breaking neck. Wall hadnt been painted with non-slip paint which increased risk of slipping - was accepted by Ct of A that duty of care owed to holidaymakers whether drunk or not but q was whether failure to paint with non-slip paint was cause of damage. No scientific uncertainty, both Def failure to use non-slip paint and Cl intoxication could have caused Cl harm - only q was which one did, which “but for” was made for!
-Bailey v Ministry of Defence 2008 - Ct of A upheld trial J decision to recognise that lack of care on part of Def made material contrib to general physical weakness of Cl and her consequential inability to protect herself from inhaling own vomit. Material contrib is one more than negligible.
- Cl rec’d inadequate post operative car in MOD hospital, following unsuccessful op for removal of gallstone, condition deteriorated and transferred to intensive care unit where diagnosed with suffering from pancreatitis. Wasnt result of tort, but was in weak position unable to protect herself from inhaling own vomit and led to cardiac arrest and brain damage for which claiming comp.
- majority of cases use “but for” test but exceptions can be seen in divisible diseases or injury where severity of injury depends on accumulation of exposures to causative agent as in Bonnington where innocent and guilty dust worked together to cause harm. Further exception cases of industrial harm where impossible to identify specific injury but where its know employers breach materially increased risk of disease developing as in McGhee. Injury seen as indivisible, not degrees of severity and not linked to degree of exposure.
5
Q
Loss of Chance
A
- Ct reluctant to evaluate loss of chance in tort but accepted in breach of contract cases.
-Hotson v East Berkshire Area Health Authority 1987 - Cl boy fell out of tree and injured hip, rec’d neg treatment so in great pain for couple days and by that time too late to treat serious condition that had developed that would continue to affect future mobility. Successfully argued at first instance that proper medical help would have reduced chances of suffering permanent disability by 25%, but H of L found condition of hip was inoperable when first presented at hospital for treatment and hadnt lost chance of full recovery so claim failed.
-Gregg v Scott 2005 - Def GP negligently failed to diagnose lump under Cl arm as cancerous leading to delay of 9 months before treatment for cancer started - effects of delay were certain amount of pain and suffering and reduction of Cl chance of long-term survival from 42 to 25%. More probable than not that Cl wouldnt have survived even if treatment had been started soon after initial visit to GP and so clam dismissed at first instance. On appeal argued loss of chance of better outcome should be regarded as head of damage in own right and issue of reduced chance of survival of treatment as matter of quantification rather then causation. Ct of A found prognosis for recovery depended on assessment of variables, some present and some in future, and policy considerations militated against allowing loss of chance to be treated as head of damage itself. - Cl further appeal rejected by H of L, held liability for loss of chance is possible in claim for economic loss but not personal injury - one reason was she was still alive 10 years later and would be huge departure from established law to allow recovery for exposure of Cl to danger that didnt happen.
- affirmed in Johnston v NEI International Combustion Ltd 2008 - lesson of that case was that mere exposure of risk of future harm was not sufficient cause of action under English law: “victim of negligence must await events” - in PI claims Cl was required to show on balance of probabilities that harm suffered was caused by Def’s negligence.
- Where loss economic, Ct more wiling to accept claim for loss of chance
-Dixon v Jones 2004 - Sol failed to serve statement of claim in action by Cl against acc, so Cl lost her action. Ct of A found she had 30% chance of success and awarded damages on this basis.
-Normans Bay Ltd v Coudert Brothers 2004 - sols failed to advise on necessity of obtaining approval from anti-monopoly Committee so Cl lost opportunity for lucrative deal. Ct of A found that circumstances in which they would be prepared to make award for loss of chance were limited, but in this case there was duty on Def to give advice which would create chance of deal, even though chance was in end dependent on actions of 3rd party - unless chance was of no real value, damages for that loss were recoverable.
-Perry v Raleys Solicitors 2019 - Sup Ct looked at issue of loss of chance in relation to Cl lost opportunity to apply for Services Award to which argued would have been entitled to if properly advised by Def. Def Mr Perry was retired minor, suffered from vibration white finger caused by excessive use of vibrating tools. Def made successful claim for damages but didnt include service award, part of Gov comp scheme - to get Services Award had to show (1) had previously been able to do one or more of 6 defined routine tasks such as gardening, window cleaning and DIY without assistance (2) that were currently unable to do them without assistance due to VWF. Mr Perry claimed agaisnt Def alleging due to neg failure to give appropriate advice, had lost opportunity to claim Services Award. Def admitted breach but denied breach caused any loss - Sup Ct said what done with appropriate advice has to be proved by Cl on balance of probabilities. Cl couldnt prove on balance of probabilities that with correct advise he would be able to make honest and successful claim for award.
6
Q
Multiple Successive Causes
A
- where causes successive and breach of duty of 2nd Def causes same type of damage as that of 1st Def, “but for” test will be applied in action against 2nd Def.
- Performance Cars Ltd v Abraham 1962 - 2nd Def care negligently collided with Cl car, Cl claimed cost of respray but at time of accident car already required respray as result of collision with 1st Def - 2nd Def not liable as need for respray didnt arise from his breach of duty.
- Where Def clearly responsible for 1st event, and Ct needs to decide whether also responsible for 2nd successive event.
-Webb v Barclays Bank plc 2001 - Cl who suffered polio as child fell while at work injuring polio affected leg. Emp accepted neg which caused fall but on attending hospital for treatment Dr employed by 2nd Def neg advised affected leg should be amputated, employer sought to avoid liability for amputation on basis neg medical treatment was intervening cause.
-Ct of A upheld trial J decision that Drs neg didnt break chain of causation, both original tortfeasor and hospital were liable. Cl was already vulnerable due to virtue of polio and it was foreseeable that medical attention would be needed in event of accident she was involved in. Drs neg not so grossly negligent to break chain of causation so damages apportioned 25% bank, 75% Dr. - If 2nd Def caused damage of same type to Cl and 1st Def sued, different approach taken.
-Baker v Willoughby 1970 - Cl suffered injuries to left let as result of Def neg - before trial Cl shot in left leg during armed robbery and had to have left leg amputated. Even if robbers could be identified and sued, would have been liable only for depriving Cl of damaged leg. H of L held Def liable for ongoing disability caused by earlier neg, irrespective of fact that robbers deprived Cl of leg in q - distinguished in later H of L case where Def breach of duty was followed by natural event.
-Jobling v Associated Diaries Ltd 1982 - Cl back injured owing to Def neg - earning capacity reduced by 50%. Before trial found to have spinal disease unrelated to back injury which rendered totally unfit for work, onset of disease is seen as vicissitude of life which no action in tort arises. “but for” test applied to restrict Def liability for loss of earnings to period before onset of disease.
-Rahman v Arearose Ltd 2000 - Laws LJ gave J of Ct of A, while employed by 1st Def was victim of savage attack caused by 2 youths, taken to hospital and lost sight in right eye as result of neg conduct of operation. Had usual head of damage for loss o earnings but also suffered PTSD, severe depression and phobia about attackers. Every tortfeasor should comp injured Cl of that loss and damage for which he should justly be held responsible. - 1st Def responsible for attack and Cl phobia whereas 2nd Def responsible for blindness and depression. Apportionment of responsibility for future psychiatric damage was 1/4 to 1st Def, 3/4 to 2nd Def
7
Q
Novus actus interveniens
A
- Def breach of duty may be cause of Cl’s damage in sense that it satisfies the “but for” test but some other factual cause intervening the breach may be regarded as the sole cause of all or part of Cl damage - novus actus interveniens describes it.
-Home Office v Dorset Yacht Co Ltd 1970 - 7 boys from borstal were working under supervision of 3 officers of borstal, left island where working by boarding Resp’s yacht. Yacht later damaged - Lord Reid regarded case as turning on issue of remoteness of damage rather than duty of care. To determine whether boy’s act broke chain of causation said that “one of links between original wrongdoing of Def and loss suffered by Cl, that action must at least have been something very likely to happen if it is not to be regarded as novus actus interveniens breaking chain of causation”. As likely if boys escaped, nearby yachts would be damaged, boy’s act didnt break chain of causation. Alternative view is that Def duty in this case was to take care that boys under its control didnt cause to Cls, so behaviour of boys couldnt break chain of causation as it was the very thing that duty required the Def to guard against.
-Lamb v Camden London Borough Council 1981 - water main was broken as result of Def’s neg, water damaged Cl house and as result it was left empty. Squatters broke in and caused damage. Oliver LJ applied test of whether squatters incursion should have been foreseen by reasonable man as likely. As squatters act wasnt foreseeable in sense of chain of causation was broken. Lord Denning argued that Cl was more likely to be insured against damage occurring in this way and on policy grounds the loss should lie with Cl or insurers. - takes 4 forms
8
Q
- May be natural event
A
- Cts reluctant to find that intervening natural event breaks chain of causation as Cl has no one else to sue if Def isnt held responsible.
- natural event causes damage simply because Def’s breach of duty has placed Cl or their property in position where that damage can be caused, chain of causation is broken unless natural event was likely to happen.
- If Cl is injured by Def’s neg and suffers further harm when ambulance taking Cl to hospital is struck by falling tree, then chain of causation is broken but where Def neg starts a fire and strong winds fan the blaze, causing it to spread to Cl’s property, the winds dont break the chain of causation
9
Q
- May be the non-deliberate act of third party
A
- example of neg intervening act can be seen in Knightley v Johns 1982 - Def neg caused traffic accident at end of tunnel. Police officer managing accident scene sent Cl Policeman on his motorbike against traffic in tunnel to close other end of tunnel. Policeman injured in 2nd accident.
- sued first driver who argued neg of managing police officer in sending policeman against traffic had broken chain of causation between original neg and harm.
- Ct of A found to determine whether non-deliberate act amounted to novus actus interveniens, 2 qs need to be asked.
1. Was whole sequence of events natural and probable consequence of Def’s neg such that consequence was reasonably foreseeable to 1st Def and not just a possibility.
2. Could action of intervening person be categorised as legally neg, as neg conduct was more likely to break chain of causation than conduct which isnt neg. - on facts Def couldnt reasonably have foreseen that police officer would require policeman to take risk of riding against traffic as consequence of accident, so actions of police officer broke chain of causation.
-Rouse v Squires 1973 - A carelessly lost control of lorry, which stopped in position where is obstructed near and centre lanes of motorway. Lorry then hit by car, which stopped in centre lane with rear lights on. Another lorry arrived and stopped in near-side lane with lights on to illuminate scene. Few mins later, lorry driven by B arrived and B failed to see that vehicles were stationary until he was too close to stop safely. B lorry skidded and hit parked lorry, which moved forward and killed C who was helping at collision. C’s estate sued B and B claimed contrib from A. Ct of A held that A was liable, precisely because it was foreseeable that other drivers might not be fully alert to traffic danger he had caused.
10
Q
- It may be the deliberate act of a third party
A
- Where Def duty is to guard Cl or Cl’s prop against damage from 3rd party, as may happen if reqs of Smith v Littlewoods Organisation Ltd 1987 are met, 3rd party act will not break chain of causation
-Sansbie v Troman 1948 - Def decorator was told to lock door when he went out, he failed to do so and Cl jewellery was stolen. Thief’s action didnt break chain of causation. - Where Def not under specific duty to guard against damage suffered number of points arise.
. 3rd party act must be independent of breach of duty (The “Oropesa” 1943)
. 3rd party act must be voluntary (Haynes v Harwood 1935)
. Where 3rd party act is likely to occur it will not break the chain of causation
11
Q
- It may be the act of the Claimant themself
A
- where Cl’s lack of care for their own safety and Def’s breach of duty are both causes of harm suffered, normally contrib neg, but are circumstances where Cl’s conduct may exonerate Def regarding the injuries suffered in 2nd event
-McKew v Holland & Hannen & Cubitts (Scotland) Ltd 1969 - as result of Def’s neg Cl sometimes lost control of injured leg. Cl attempted to descend a steep staircase with no handrail while holding daughter by hand. Leg gave way and after pushing child back he jumped to avoid falling and broke his ankle.
-Cl decision to descend staircase was moment when he acted unreasonably. Risk took was unnecessary, decision shouldnt be confused with later choice which he made when he decided to jump. In agony of moment such choice might have been reasonable
-Wieland v Cyril Lord Carpets Ltd 1969 - Cl was attempting to continue her life with consequences of injuries caused by Def neg. Neck encased in collar which deprived her normal ability to wear bifocal spectacles, also fell while going down a flight of stairs but it was held that she hadnt acted unreasonably. 2nd accident was legally attributable to Def’s neg.
-Reeves v Commissioner of Police of the Metropolis 1999 - prisoner in customer hanged himself in cell and administratrix sued police alleging neg. Prison was known to be suicide risk and flap on door of cell was negligently left open providing him with means of hanging himself. By time reached H of L Def admitted both duty of care and breach of duty but argued act of victim should be seen as novus actus interveniens or at least contrib neg.
-Law lords held occurrence of act which was at heart of police’s duty of care for prisoner in custody shouldnt be treated as novus actus interveniens, would equally apply to deliberate act of 3rd party and didnt depend on whether person in question was of sound mind or not. Applied wording of s1(1) Law Reform (Contributory Negligence) Act 1945 and held victims deliberate act of suicide could constitute fault as in s4. On facts apportioned blame equally between Def and Deceased.
- q of whether suicide of accident victim, after tort committed, was reasonably foreseeable was before Ct of A in Corr v IBC Vehicles 2006 - Mr Corr injured in accident work and suffered physical injury, disfigurement and PTSD, became depressed and 6 yrs after committed suicide. 2 Ct of A Js found suicide was reasonably foreseeable and fell within requirement for type or kind of harm to be foreseeable at time of accident as was consequence of depression.
- employers appealed to H of L in Corr v IBC Vehicles 2008 but dismissed, duty of care of their employee included avoidance of psychiatric damage and employer’s breach of its duty caused both physical and psychological damage. Mr C behaviour and ultimate decision to take his life was attributable to accident, Depression was foreseeable and Cl wasnt required to establish suicide itself was foreseeable.
-St George v Home Office 2008 - Cl had been abusing drugs and alcohol from 16, when 29 went to prison and health-screening interview disclosed that he suffered epileptic fits. Put in cell in ordinary unit level where allocated top bunk - withdraw from drugs and alcohol led to seizure and he fell from top bunk to floor which resulted in severely and permanently disabled.
-Trial J found proof of breach of duty in allocating top bunk in light of his history, evidence of causation of long term disability, with damages reduced by 15% to reduce contrib neg of Cl given risks inherent with lifestyle. Cl appealed against finding of contrib neg and Def appealed against finding of causation. Ct of A not prepared to look at causation but appeal on contrib neg allowed.
-Clay v Tui Ltd 2018 - Holidaymaker locked family on balcony of hotel room, lock was faulty so family trapped. Cl attempted to step across from neighbouring balcony, fell and fractured skull. Was breach and “but for” satisfied, Ct decided that Cl antics were unreasonable so Cl was in effect author of his own injury via his “strikingly new and unreasonable act”
12
Q
Remoteness of damage
A
- Even when breach of duty is cause in fact of Cl’s damage, comp may be denied for some or all Cl’s injuries on grounds that breach of duty wasnt legal cause of that damage. In these cases damage in q is said to be too remote
- policy issues are at work in this area as Ct will not wish to impose an unfair or unduly heavy burden on insurers or Def.
13
Q
Re “Polemis”
A
- at one stage, was sufficient that physical damage was a direct consequence of Def’s breach of duty.
-Re “Polemis” 1921 - plank negligently dropped into hold of ship, petrol vapour in hold was ignited by spark caused when plank dropped. - ship was destroyed in fire: “once act is negligent, fact that its exact operation was not foreseen is immaterial”
- test was very generous to Cl but scope of potential tortious liability in neg was very narrow at time, predating Donoghue v Stevenson 1932 and emergence of neighbour principle, which was dramatically expanded duty areas and scope of tort of negligence.
14
Q
The “Wagon Mound”
A
- direct consequence test was considered and rejected by Privy Council in The “Wagon Mound (No.1) 1961 - Def neg discharged fuel oil into Sydney Harbour, some time later oil spread to Cl’s wharf where welding was taking place. Spark from welding torch ignited oil and caused significant damage to wharf, and oil also caused fouling to wharf.
-Trial J found wasnt foreseeable that fuel oil on water would catch fire but that some foreseeable damage in form of fouling was caused. There was breach of duty of care but Privy Council held Def wasnt liable for fire damage. Applied test for remoteness of damage of whether type of damage suffered was a reasonably foreseeable consequence of Def’s breach of duty. As it wasnt foreseeable that oil would catch fire on water, fire damage was unforeseeable type. - Was opinion of experts that oil of this type and in these conditions wouldnt ignite. Said Re “Polemis” shouldnt be considered as good law for neg claim as it was not consistent with ideas of “justice or morality that for an act of negligence, however slight or venial.. the actor should be liable for all consequences however unforeseeable and however grave, as long as they can be said to be direct”.
- This test of reasonably foreseeability is less favourable to Cl as may involve Ct making fine distinctions between types of damage. If kind of damage suffered is reasonably foreseeable, it doesnt matter that it came about in unforeseeable way.
-Hughes v Lord Advocate 1963 - portable tent was left over exposed manhole. Tent was surrounded by paraffin lamps. Child trespassing in tent dropped one of lamps down the hole causing explosion and suffered burns. Burning was foreseeable type of damage, even though precise manner of burning might not have been foreseen. Applied test of reasonable foresight and further explained nature of test “in order to establish coherent chain of causation it isnt necessary that the precise details leading up to the accident should have been reasonably foreseeable: it is sufficient if the accident which occurred is of a type which should have been foreseeable by reasonably careful person”
-Jolley v Sutton London Borough Council 2000 - Law Lords criticised interpretation of cases taken by Lord Woolf MR and Lord Steyn referred to speeches of Viscount Simonds: “he was in no way suggesting that precise manner in which injury occurred nor its extent had to be foreseeable. Scope of 2 modifiers - precise manner in which injury came about and its extent is not definitely answered in either The “Wagon Mound (No.1) or Hughes. Requires determination in context of an intense focus on circumstances in each case”
-Bradford v Robinson Rentals 1967 - Cl suffered frostbite after travelling for his employer in unheated van in severe winter weather. Trial J decided frostbite, albeit rare, was form of injury which might be suffered after exposure to extreme cold. Def employer was therefore liable for permanent injury caused by frostbite.
Tremain v Pike 1969 - J held Cl who contracted Weil’s disease from contact with rat’s urine couldnt recover comp. Distinction drawn between certain risks associated with rat infestation and Weil’s disease which was “at best a remote possibility which they couldnt reasonably foresee and damage suffered by Cl was unforeseeable and too remote to be recoverable”. At time, link between rat’s urine and Weil’s disease wasn’t known and so at the time the risk that the Cl might contract the disease was not foreseeable.
15
Q
Alternative way of limiting liability?
A
- alternative way of considering issue of type of damages recoverable is to ask what is the scope of the Def’s duty of care?
-Manchester Building Society v Grant Thornton UK LLP 2021 - Cl incurred financial losses as result of neg advice from Cl’s auditors. Trial J and Ct of A dismissed claim partly on basis damage suffered was too remote. Sup Ct disagreed. Held that claim in neg a Def was only liable for damages in respect of losses of a kind that fell within scope of their duty of care and scope of the duty of care assumed by professional adviser was governed by purpose of that duty, judged on objective basis by ref to reason why the advice was given. - Whether claim fails on basis of remoteness or scope of duty of care can sometimes be blurred line.
-Meadows v Khan 2021 - case re clin neg Sup Ct set out series of qs that helped analyse losses that Def would be liable for.
1. is the harm of a type that is actionable in neg?
2. What are the risks of the harm to the Cl against which the law has imposed on Def a duty to take care?
3. Has Def breached their duty?
4. Is the loss suffered by the Cl a consequence of Def’s breach?
5. Is there a sufficient “nexus” between particular element of harm for which Cl sought damages and subject matter of Def’s duty of care?
6. Is any element of the harm suffered irrecoverable because it was too remote, or because there was a different effective cause in relation to it, or because Cl mitigated loss or had failed to avoid loss which could reasonably have been expected to avoid? - key is that claim must be analysed in logical way to ascertain extent of Def’s liability
