Negligence II: Damage, Causation & Remoteness Flashcards
What is recoverable as damage in negligence?
- Hunter v Canary Wharf, must be damage in the sense of a physical change in property
- Rothwell v Chemical & Insulating, psychiatric illness can be recoverable but with certain restrictions
What is meant by remoteness?
D will not be liable where the injury is too remote (i.e. too far removed) from their original act
What was decided in The Wagon Mound No1?
D was not liable because they could not have reasonably foreseen the damage occurring due to fire as a result of spilling oil
What does Hughes v Lord Advocate tell us about remoteness?
It does not matter if the sequence of events that happen are unusual, what matters is if the type of injury is foreseeable or not
What is the thin skull rule?
A particular weakness of the victim that an ordinary person would not have cannot be used as a defence to negligence even if it means injury was not reasonably foreseeable
Smith v Leech Brain & Co
What does Page v Smith tell us about reasonable foreseeability?
It does not matter for a primary victim if psychiatric injury was reasonably foreseeable or not so long as the risk of physical injury is foreseeable
What does the Social Action, Heroism and Responsibility Act 2015 tell us?
That when considering a claim for negligence, the court must consider whether the person was fulfilling one of the criteria and consider this in the standard of care
What is the general test of causation in negligence?
Claimant must show ‘but for’ the defendants act, they would not have suffered loss or injury (Barnett v Chelsea Hospital)
How does the but for test operate differently in cases of divisible and non-divisible injury?
DIVISIBLE INJURY
Where it is possible to attribute different parts of the injury to different causes. Causation will be established if defendant’s negligent caused a ‘material contribution to the injury’ (Bonnington Castings v Wardlaw)
* Holtby v Brigham Cowan: Proportional damage is to be awarded based on the extent of material contribution to injury
INDIVISIBLE INJURY
There is no way to divide the injury, cause can only be attributed to one person. Courts have still said that material contribution could apply:
* Bailey v Ministry of Defence: Brain injury, caused due to patients weakness and negligent treatment in hospital, was actionable. But for test modified because it could not be satisfied
* Williams v Bermuda Hospital: Where actions contributed to the incremental development of a physical condition that led to indivisible injury
* Holmes v Poeton Holdings: Bonnington can apply to indivisible injury.
How is causation different where there are multiple causes of injury
Baker v Willoughby: A supervening event that occurs between the time of the tort and trial which worsens the existing damage / injury does not reduce the amount of compensation
Jobling v Associated Dairies: When the supervening event is non-tortious and a vicissitude of life, there will be a reduction
What is the rule where there is causal / scientific uncertainty?
Fairchild v Glenhaven Funeral Services: In cases of scientific uncertainty, a material increase in the risk of injury satifies causation
