Negligence - Damage

Question 1

Causation

Answer 1

P must show that harm suffered was as a matter of fact caused by D’s breach of duty

Question 2

“But For”

Answer 2

If “but for” the D’s neg conduct damage would not have happened then neg is cause of damage

Question 3

Remoteness

Answer 3

Liability can still be avoided if D can show damage suffered was too remote a consequence of the breach of duty

Question 4

Barnett v Chelsea and Kensington Hospital Management Committee (1969)

Answer 4

Established the But For Test
P’s husband vomiting after drinking tea. Nurse consulted dr by phone, told to send him home. P died of arsenic poisoning. Dr was neg. But had Dr’s BoD caused the death?
Held: Claim failed. Even if deceased had been examined and treated with proper care, would still have died. D’s BoD not cause.

Question 5

Robinson v Post Office (1974)

Answer 5

P leg injury caused by D’s neg. Suffered reaction to anti-tetanus vaccination administered by Dr who omitted to test for allergy. D held liable for this injury, too. Dr not liable for omitting test, vaccine was urgently needed, test wouldn’t have revealed allergy in time.

Question 6

Bolitho v City and Hackney Health Auth (1997)

Answer 6

P (2yo), died. Dr was in BoD to child. Issue was causation. Did BoD cause P’s injuries? Depends what dr would have done if had been present. Dr said she would not have intubated so cardiac arrest would have happened anyway. Med experts called to determine whether prof standard of care requires any Dr who attended the P to intubate.
Held: Action failed on causation. If Dr has attended, failure to intubate would not have been neg.

Question 7

Chester v Ashar (2005)

Answer 7

C suffered paralysis after elective surgery, claimed Dr neg. Op have not been neg perf, but C argued had not been given adequate warning of 1-2% risk of paralysis. May not have consented.
Held: sufficient causal link between failure to warn and damage sustained by C. Link not broken by poss that C might have consented anyway
Lord Steyn: “cannot be said to have given informed consent”

Question 8

McGhee v National Coal Board (1973)

Answer 8

D failed to provide washing facilities, P cycled home caked in brick dust. Dermatitis. Med evidence failed to show disease would have been avoided, but evidence showed shower would reduce risk.
Held: D liable on ground sufficient for P to show D’s BoD made risk more probable even if uncertain whether was actual cause

Question 9

Wilsher v Essex Health Auth (1988)

Answer 9

Preme baby neg given too much oxygen. P alleged was cause of blindness. But were up to 5 poss causes. HoL held burden on P to est that D’s BoD was at least mat contributory cause of harm.

Question 10

Bonnington Castings v Wardlaw (1956)

Answer 10

Exposed to noxious dust, disease. Some exposer was from non-neg source. But For Test couldn’t be satisfied.
Held: HoL causation could be est, emp’s act made mat contrib to harm

Question 11

Hotson v East Berks Health (1987)

Answer 11

Fell from tree, hip injury. 75% chance of perm disability. D’s neg misdiagnosed, left untreated for 5 days. 1st inst: delayed treatment deprived P of 25% chance of recovery.
Held: HoL reverse. No basis in tort for loss of a chance. If P could prove on balance of prob that would have recovered w/proper treatment, entitled to full compensation. Otherwise entitled to nothing.

Question 12

Gregg v Scott (2005)

Answer 12

HoL - liability for loss of a chance or a more favourable outcome should not be introduced into personal injury claims

Question 13

Allied Maples Group v Simmons & Simmons (1995)

Answer 13

CoA confirmed P can succeed if real and substantial rather than speculative chance can be shown

Question 14

Bailey v MoD (2008)

Answer 14

C weak due to neg lack of post-op care. BoD not disputed, issue was causation. CoA held enough to patient to establish that, on balance of prob, lack of post-op care made material contribution to overall weakness of her condition and resulting brain damage.

Question 15

Fairchild v Glenhaven Funeral Services (2002)

Answer 15

Asbestor-induced mesothelioma. Couldn’t be proved which emp’s BoD was cause. Held: on balance of probability each D’s wrong doing had increased the risk of C contracting disease. Trated as proof that each D had mat contributed to it. McGhee applied. Policy consideration: injustice to deny remedy

Question 16

Several Liability

Answer 16

D only liable up to the extent of the damage he caused

Question 17

Joint Liability

Answer 17

C can sue one D for the whole damage leaving the D to seek compensation from other Ds

Question 18

Baker v Corus UK (2006)

Answer 18

3 sep exposures to asbestos, 1 of which was caused by C himself. Held: Partially reversed Fairchild. Liability was several rather than joint. S could still be liable w/out proof of causation, but liability could only extend tot eh relative proportion to which he contributed to the chance of the outcome. 20% discount for contrib neg.
Seen as victory for insurers, strong resistance from trade unions and victim support groups

Question 19

Compensation Act 2006 (s.3)

Answer 19

In response to adverse publicity around Cs who were sick and dying being required to spend their remaining time trying to establish relative extent of liability of former emps.
Causation est by showing that exposure made “mat contrib to the risk”

Question 20

Sienkiewicz v Grief Ltd (2009)

Answer 20

Only 1 emp here, but woman exposed in environment of town she lived in. 1st ins: since one emp, C should have to prove causation on normal balance of prob test, found she failed to succeed.
Held: CoA allowed appeal. C could establish causation by showing that workplace exposure to asbestos had mat increased the risk of the employee developing disease (Comp Act 2006 3(1))

Question 21

Baker v Willoughby (1970)

Answer 21

Road accident caused by D’s neg. P suffered leg injury. Pre-trial, P victim of robbery, shot in same leg and had to be amputated. D admitted neg, arg his resp ended when P shot and so all losses after date of shooting flowed from robbery.
Held: Rejected D’s arg as produced manifest injustice. Remained liable for full extent of P’s damage.

Question 22

Jobing v Associated Dairies (1981)

Answer 22

D liable when P sustained back injury, -50% earning capacity. Prior to neg action, disease of spine rendered P unfit to work. 2nd event brought about by natural causes. HoL held D only liable for reduced capacity up to time of onset of disease.

Question 23

Novus Actus Interveniens

Answer 23

Where an intervening act has caused the damage, it may break the causal link between D’s BoD and the damage

Question 24

McKew v Holland & Hannen & Cubitts (1969)

Answer 24

D’s neg, P suffered leg injury, occasionally lost control of it. Attempted to descend stairs w/no handrail. Leg gave way, he fell and sustained further injuries.
Held: D not liable for injury. P’s act brake CoC. Unreasonable conduct.

Question 25

Weiland v Cyril Lord Carpets (1969)

Answer 25

P neg injured, forced to wear surgical collar. Restricted ability to focus through bifocal glasses. Fell down stairs, further injury. D found liable, P had not acted unreasonably.

Question 26

Pigney v Pointers Transport (1957)

Answer 26

Neg inflicted head injury affected D’s capacity for rational judgment. His suicide was therefore held not to break CoC.

Question 27

Corr v IBC Vehicles (2008)

Answer 27

Suicide merely culmination of depression. Depression as result of near-fatal accident at work was within compensable damage and CoC not broken by intentional act of suicide.

Question 28

Spencer v Wincanton Holdings (2009)

Answer 28

Emp admitted liability for injury = knee amputation requiring prosthesis. Resp had 2nd accident when not wearing prosthesis. Emp sought to rely on McKew, R had acted unreasonably and damage too remote. Appeal dismissed, Resp’s conduct towards 2nd accident had been below standard of unreasonableness required to break CoC and contrib neg available to deal with sharing of resp.

Question 29

Reeves v Commissioner of Police of the Metropolis (1999)

Answer 29

Deceased, known suicide risk, killed himself in police cust. D agreed owed a DoC, denied liability, said suicide was novus actus interviniens breaking CoC.
Held: D knew risk, suicide not new act but the very harm they were under duty to prevent. Deceased bore partial resp for his death. Damages -50%.

Question 30

Carslogie Steamship v Royal Norwegian Gov (1952)

Answer 30

P’s ship damaged due to D’s neg. Set out on voyage would not have made had collision not occurred, suffered extensive damage in heavy weather.
Held: D not liable for weather damage - intervening event. Tort merely part of the history of events which placed the ship in that place at that time.

Question 31

Re Polemis and Durness, Wilthy & Co (1921)

Answer 31

Stevedores unloading ship at Casablanca neg let plank fall, causing explosion, destroyed ship. Held: D liable for loss of ship. Direct, though not foreseeable, consequence of their neg

Question 32

Overseas Tankship v Morts Dock Co (The Wagon Mound) (1961)

Answer 32

Carelessness of D = fuel discharged into Sydney Harbour. Oil carried by wind to P’s wharf where ship being welded. P advised safe to continue. 2 days later oil caught fire. Wharf & ships damaged in blaze. Also interfered with P’s use of slips. No BoD and direct damage, at trial and appeal, following Polemis, judgment for P.
Held: PC reversed decision. Fact some damage foreseeable didn’t make D liable for fire damage which was unforeseeable.
Test for remoteness was whether damage sustained was reasonably foreseeable. Court: Polemis should no longer be regarded as good law.

Question 33

Jebson v MoD (2000)

Answer 33

Drunk soldier fell from roof of army truck. CoA held rowdy behaviour was foreseeable and so damage was not too remote.

Question 34

Hughes v Lord Advocate (1963)

Answer 34

Manhole left open in st, covered by canvas tent and surrounded by paraffin warning lamps. 2 young boys entered tent. Knocked lamp into hole. Explosion. P suffered severe burns. Held: Ds liable. Explosion unforseen, kind of damage (burns) forseeable

Question 35

Doughty v Turner Manufacturing Co (1964)

Answer 35

Chemical reaction of thing falling into caldron of molten liquid. Chemical reaction, explosion, P severe burns. Failed on grounds splash causing burns foreseeable, damage occurred was of entirely different kind.

Question 36

Vacwell Engineering v BDH Chemicals (1971)

Answer 36

D neg failed to warn P chemical liable to explode if mixed with water. P’s employee allowed contact with water, explosion destroyed most of P’s premises. Held: Ds libale. No def that explosion much greater than was foreseeable

Question 37

Egg Shell Skull

Answer 37

Amount of damage that victim suffers as result of neg depends upon the individuals characteristics and constitution. Tort-feasors must take their victims as they find them

Question 38

Smith v Leech Brain & Co (1962)

Answer 38

P burnt lip as result of D’s inadequate safety measures. Lip was pre-malignant and burn cased him to develop cancer which led to his death. D argued not reasonably foreseeable outcome.
Held: D liable. Egg shell skull applied. Q was whether burn foreseeable, not the cancer.

Question 39

Robinson v Post Office

Answer 39

P’s damage combination of D’s neg & allergy to med treatment. Egg shell skull rule: D liable for both injury and reaction.

Question 40

Pigney v Pointers Transport Services

Answer 40

D’s neg caused severe head injury induced depressive mental illness in P’s husband. Reaction to illness led to his suicide. D liable.

Question 41

Brice v Brown (1984)

Answer 41

P & 9yo daughter passengers in taxi involved in collision. Daughter suffered minor injuries. Mother’s injuries minor, but pre-existing personality disorder - suffered hysterical reaction and lasting nervous shock from injuries suffered by her daughter.
Held: Test is whether foreseeable that a person of normal disposition might suffer nervous shock through risk created by D’s neg. P allowed to succeed on basis that person of normal disp would have suffered nervous shock too, and D arg that P’s reaction was unusual/unforseeable was rejected

Question 42

Page v Smith (1995)

Answer 42

Claims for nervous shock distinguished between primary and secondary victims. Where P primary victim, injury must be foreseeable nut not necessary to show that injury by shock was foreseeable.
Where P is 2ndary victim D will not be liable unless psych injury is foreseeable in person of normal fortitude