negligence: damage

Question 1

what are the three elements of negligence?

Answer 1

1. duty of care
2. breach of duty
3. damage

Question 2

what is needed to prove damage?

Answer 2

there has to be some sort of damage (injury or damage to property) resulting from D’s negligence. C must prove:

1. factual causation- damage was caused y D’s breach of duty
2. remoteness of damage- the damage was not too remote (it was reasonably foreseeable)

Question 3

what is factual causation?

Answer 3

Barnett v Chelsea Kensington HMC (1969):
- C went to A&E complaining of severe stomach pains and vomiting. the doctor refused to see him. he died of arsenic poisoning a few hours later. although the doctor breached his duty of care by failing to examine C, it was proven that C would’ve died anyway, even if he had been seen.

• the but for test was not met because C would have died anyway. the breach was not the cause of death

Question 4

multiple causes

Answer 4

wilsher v essex AHA (1988):
- where there are multiple causes, the D will not be liable because the C cannot prove causation

fairchild v glenhaven (2003):
- HOL held that Ds had materially contributed to the risk of the C’s contracting the cancer

Question 5

loss of chance

Answer 5

Hotson v East Berkshire AHA (1987):
- C fell from a tree and his injuries were then wrongly treated at the D’s hospital. C was left permanently disabled. D admitted negligence but denied liability. evidence showed that there was a 75% chance that C’s medical condition would have been the same even if he had received the correct treatment. causation could not be established and the claim failed.

• there needed to be more than a 50% chance that the negligent medical treatment affected C’s condition. this is known as the all-or-nothing approach

Question 6

new intervening acts

Answer 6

Smith v Littlewoods (1987):
- vandals broke into a disused cinema owned by D and set fire to it, causing damage to C’s property. C claimed that Littlewoods owed him a DOC to prevent the actions of the vandals. they were not required to provide 24 hour surveillance and were unaware of the break-in.

• the law is unwilling to impose liability for the deliberate act of a third party. the fire was a Novus Actus Interveniens which broke the chain of causation

Question 7

remoteness of damage

Answer 7

the wagon mound (1961)
- the D’s vessel, the wagon mound, leaked oil at a Wharf in Sydney Harbour. Some cotton debris became soaked in the oil and sparks from some welding works ignited the oil. the fire spread rapidly causing destruction of some boats and the wharf

• D’s were not liable because the damage to the property caused by the ignition of the oil was too remote from the original oil spillage. the damage must be reasonably foreseeable

crossley v rawlinson (1981):
- C was running towards a buring vehicle with a fire extinguisher to put the fire out. he tripped, fell down a pothole and was injured.

• c’s injuries were too remote because whilst it was foreseeable that someone would be injured putting the fire out, it was not foreseeable that C would fall down a hole on the way there

bradford v robinson rentals (1967)
- C was sent by his employers to a job in terrible weather in a van with no heater. C asked to postpone the journey until weather conditions improved. they refused. due to the severe cold, he suffered frostbite and subsequently claimed damages against the company.

• an extreme form of the type of harm expected, is recoverable

hughes v lord advocate (1963):
- two boys aged 8 and 10 went exploring an unattended man hole which was surrounded by parrafin lamps. the boys took a lamp down the hole. one of them dropped the lamp leading to an explosion and extensive burns. the damage was not too remote it was foreseeable that the boys may suffer a burn from the lamp. the fact that the burn resulted from an unforeseeable explosion did not prevent the type of damage being foreseeable

• where the type of harm suffered is foreseeable (burns), it does not matter that the precise way it was caused, was unusual (explosion)

smith v leech brain (1962):
- D was found liable for the death of V who was burned on th lip by a hot metal caused by D’s negligence. The hot metal triggered pre-cancerous cells to develop, V got cancer and died.

• D must take his victim as he finds him. this means D will be liable for injuries that are more serious than might have been expected because of a vulnerability of the victim

Question 8

res ipsa loquitur

Answer 8

• the facts speak for themselves

scott v london and st katherines docks (1865):
- C was injured after being hit by six bags of sugar, which fell from D’s crane. The court gave the three rules for res ipsa to apply:

1. the thing that caused the damage was under the control of the defendant
2. the cause of the accident is unknown
3. the accident is such that would not normally happen without negligence

mahon v osborne (1939)
- negligence was established through res ipsa loquitur when a patient died shortly after an abdominal operation with a swap left inside his body