Negligence-Legal Causation

Question 1

Wright v Lodge

legal causation

‘Not every cause ‘without which not’ – or ‘but for’ – is regarded as a relevant cause in law.’

Staughton LJ, 132.

Answer 1

Lodge’s recklessness had broken the chain of causation. Even though the presence of Miss Shepherd’s car was a factor in the pile up, it was not a factor that had any legal significance in light of Lodge’s unwarranted and unreasonable behaviour. Shepherd could not have reasonably foreseen that another driver would intentionally or recklessly collide with her car; however, she could have been held liable if the other driver had merely been driving negligently (as was in Rouse v Squires – 1973).

Lodge was not merely negligent but reckless, driving at 60 mph in bad weather conditions. Hence, he was held liable for the injuries sustained by the victims. Nonetheless, the court determined that Miss Shepherd should contribute 10% to the compensation for her passenger.

It was late at night, and there was a very thick fog outside. Miss Shepherd’s car broke down on a carriageway, and it was determined that she acted negligently by leaving it on the carriageway. Though she tried to restart the car, it couldn’t. Mr. Lodge, a lorry driver, who was driving too fast, collided with the abandoned car, and then swerved across the central reservation, causing multiple other vehicles to pile up. Mr. Wright was injured as his car was hit, and another person was killed. Lodge asserted that Shepherd was partly to blame for the pile up because it was initially caused by her negligence in that she did not move her vehicle off the road.

Question 2

Gray v Thames Trains Ltd [2009] UKHL 3

legal causation - supervening event

‘All these cases raise in one form or another the question: on what disabling supervening events is the initial tortfeasor entitled to rely to reduce or extinguish the consequences of his tort? Put another way: from what further misfortunes of the claimant should the tortfeaser be held entitled to benefit?’ Lord Brown at [98]

[75]–[76] ‘Why should the defendants pay damages on the basis that, but for his PTSD, the claimant would have been able to work after 19 August, when, as the court knows, because of the manslaughter, at all material times after that date he was actually in some form of lawful detention which prevented him from working?

The claimant’s approach is, to say the least, unreal. If that were the worst that could be said against it, it might stand in the uncomfortable company of Baker v Willoughby.’

= C cannot claim for loss of earnings bc the reason why he could not earn was because he was lawfully detained. The courts are prepared to look at what has happened subsequently.

Answer 2

The claimant was a passenger on a train which crashed due to the defendant’s negligence. He suffered Post-Traumatic Stress Disorder due to his experiences, which caused his personality to change radically. The claimant went on to kill a person because of their disorder. As a result, he was convicted of involuntary manslaughter after establishing the defence of diminished responsibility. The judge sentenced him to a hospital order under the Mental Health Act 1983.

The claimant sued the defendant in negligence. He claimed damages for the consequences of his manslaughter: including loss of reputation, emotional distress, and indemnity for any potential claims made by his victim’s dependants. He also claimed damages for the consequences of his sentence: loss of liberty and lost earnings during the period of his detention. The defendant argued that they were not liable for any of these losses. They argued that the defence of illegality prevented the claimant from recovering losses for the consequences of his own criminal acts.

Question 3

Baker v Willoughby [1970] AC 467,

legal causation - supervening event

‘[The defendant’s argument] must not be allowed to succeed, because it produces manifest injustice. The supervening event has not made the plaintiff less lame nor less disabled nor less deprived of amenities. It has not shortened the period over which he will be suffering. It has made him more lame, more disabled, more deprived of amenities. He should not have less damages through being worse off than might have been expected.’

NB: this decision was subject to criticism => we must ignore the subsequent events, and this area of law was revisited in Jobling but the judges distinguished Jobling rather than overruling Baker.

Answer 3

The House of Lords held in favour of the claimant. The later cause was ‘concurrent’ with the original cause. As such, the defendant should be taken to have caused the claimant’s losses even after the date of the later cause. The claimant’s damages should not be reduced, as a result.

This Case is Authority For…
If a later injury is ‘concurrent’ with the injury the defendant inflicted, damages should not be reduced to reflect the fact that the claimant would have suffered the loss in any event.

What exactly this case decides is unclear. In particular, it is unclear when an injury will be deemed ‘concurrent’. This is because the decision in Baker seemingly conflicts with the House of Lords decision in Jobling v Associated Dairies [1982] AC 794. In Jobling, the House of Lords distinguished and criticised Baker, but did not overrule it.

There are two ways of interpreting this case:

A subsequent tortious cause will not break the chain of causation between the defendant’s tort and the ongoing injury;
A subsequent non-natural cause will not break the chain of causation between the defendant’s tort and the ongoing injury.

The claimant was about to cross the road. He had a clear view, and could see one car when he looked right. When he crossed the road, he was struck by the defendant’s car. The defendant had overtaken the only car the claimant had seen and had not taken action to evade the claimant. The claimant suffered serious injuries to his leg as a result. Before trial, the claimant was mugged and shot in the same leg. The leg had to be amputated. The claimant sued the defendant in negligence.

Issue(s)
1. Could the claimant recover damages after the point at which he would have lost the use of his leg in any event?

Question 4

Jobling v Associated Dairies [1982] AC 794,

supervening event

Lord Edmund-Davies at 808-9:

‘My Lords, it is a truism that cases of cumulative causation of damage can present problems of great complexity. I can formulate no convincing juristic or logical principles supportive of the decision of this House in Baker v Willoughby, and none were there propounded.’

Lord Keith of Kinkel at 815:

‘In proceedings against the first tortfeasor alone, the occurrence of the second tort cannot be successfully relied on by the defendant as reducing the damages which he must pay. That, in substance, was the result of the decision in Baker v Willoughby, where the supervening event was a tortious act, and to that extent the decision was, in my view, correct.’

= rationale for distinguishing the cases: in Jobling, the development of the condition is unrelated to a subsequent tort.

Answer 4

Held: Held, that the supervening illness could not be disregarded, the court had to take into account all factors in assessing compensation.
D was liable only for negligence loss of earnings in the intervening period between the back injury and C’s development myelopathy

• ReconcilingBaker v WilloughbyandJobling
  
  • Where the supervening event is tortious, there is no reduction in damages:Baker
  • But where the supervening event is non-tortious and a vicissitude of life, there is a reduction:Jobling
  > If the second injury is held not to be tortious, it should be treated as one of the vicissitudes of life (Lord Wilberforce)

Facts: Mr Jobling, a butcher, slipped on the floor at his place of work due to his employer’s negligence. He injured his back which caused him to reduce his earning capacity to 50% of what it was. He then developed an independent back condition which was unrelated to the injury which left him unable to work. The trial judge appliedBaker v Willoughbyand held that the claimant was entitled to recover damages beyond the onset to the back condition. The employer appealed.

Question 5

Lamb v Camden LBC [1981] QB 625,

intervening act - third party

Lord Denning at 637:

‘The truth is that all these three—duty, remoteness and causation— are all devices by which the courts limit the range of liability for negligence.’

Oliver LJ at 642:

‘Few things are less certainly predictable than human behaviour and if one is asked whether in any given situation a human being may behave idiotically, irrationally, or even criminally, the answer must always be that that is a possibility, for every society has its proportion of idiots and criminals. It cannot be said that you cannot foresee the possibility that people will do stupid or criminal acts, because people are constantly doing stupid or criminal acts. But the question is not what is foreseeable merely as a possibility but what would the reasonable man actually foresee if he thought about it.’

Answer 5

Issue: was the council liable for the damage caused by the squatters?

Held: D was not liable for the damage caused by the squatters.

Facts: C owned this house which had been rented out to a tenant – the Ds were the council. The latter were replacing a sewer nearby and in the course of doing so broke water pipe and the water undermined the foundation of C’s house. As a result, the tenant moved out, C arranged for repairs to the house and put the furniture in storage and went back to New York. While C was away, squatter moved int the house and caused damage to the property.

Question 6

Knightley v Johns [1982] 1 WLR 349

intervening act - third party

367: ‘the inspector’s negligence was not a concurrent cause running with the first defendant’s negligence, but a new cause disturbing the sequence of events leading from the first defendant’s overturning of his car to the plaintiff’s accident and interrupting the effect of it.’

Answer 6

D1 was not liable as D2’s negligence constituted a break in the chain of causation
D2 was liable for C’s injury
**Principle : ‘Negligent conduct is more likely to break the chain of causation than conduct which is not; positive acts will more easily constitute new causes than inaction.’ **

D1’s negligent driving caused the blocking of a busy tunnel
D2, the police inspector, negligently forgot to close the tunnel and ordered C (a policeman) to drive back against the traffic to do so
C was hit by D3, another negligent driver
The judge held that only D1 was wholly responsible for the injury

Question 7

McKew v Holland [1969] 3 All ER 1621

intervening act - claimant

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… [If] the injured man acts unreasonably he cannot hold the defender liable for injury caused by his own unreasonable conduct. His unreasonable conduct is novus actus interveniens… A defender is not liable for a consequence of a kind which is not foreseeable. But it does not follow that he is liable for every consequence which a reasonable man could foresee.’

Answer 7

Held: he had broken the chain of causation by taking this flight of stairs knowing his condition

Principle: An unreasonable act by victim was results in further injury amounts to break in the chain of causation in negligence

Facts: C had been injured at work and as a result he sometimes lost control of his left leg. Once he was descending a steep flight of stairs without handrail and no support. He felt his leg give away, he landed heavily fracturing his ankle.

Question 8

Wieland v Cyril Lord Carpets [1969] 3 All ER 1006

intervening act - claimant

‘It can be said that it is foreseeable that one injury may affect a person’s ability to cope with the vicissitudes of life and thereby a cause of another injury and if foreseeability is required… foreseeability of this general nature will, in my view, suffice.’

Answer 8

D was liable for C’s further injuries
The chain of causation was not broken as C walking down the steps was not unreasonable

D’s negligence caused C to wear a neck brace which restricted her ability to use her bifocal glasses
C missed a step on a staircase and fall down some steps, sustaining further injuries
Issue: did C’s act of going down the stairs break the chain of causation

Question 9

Reeves v Commissioner of Police [1999] 3 WLR 363

intervening act - claimant - suicide

‘an independent act superseding the effect of the tortious conduct must, in my view, relate to an act which was outwith (outside) the contemplated scope of events to which the duty of care was directed.’

Where such a duty is specifically directed at the prevention of the occurrence of a certain event I cannot see how it can be said that the occurrence of that event amounts to an independent act breaking the chain of causation from the breach of duty, even although it may be unusual for one person to come under a duty to prevent another person deliberately inflicting harm on himself.’

= here the very act was the object of the duty

Answer 9

D was liable

Principles:
* A duty of care can arise in respect of persons under D’s custody as there is a relationship of control
* A deliberate act that D was under a duty to prevent cannot amount to a break in the chain of causation or a voluntary assumption of risk but it can amount to contributory negligence

Man committed suicide in jail, despite the police being warned that he was a suicide risk
The judge found that he was of sound mind
C, as administratrix of the man’s estate, sued the police commissioner (D) for negligence in failing to prevent the man’s death
Issue
Did the man’s intentional suicide constitute a break in the chain of causation?

Question 10

Corr v IBC Vehicles [2008] UKHL 13; [2008] 1 AC 884,

intervening act - claimant - suicide

Reasoning:

• Where the defendant owes a duty not to cause psychiatric harm, and the claimant commits suicide because of the defendant’s actions, this falls within the scope of the defendant’s duty. It was not necessary for C to show that it was reasonably foreseeable that the D’s negligence would result in her husband’s killing himself; it was enough that it was reasonably foreseeable that her husband would suffer some form of depression if the defendants allowed him through their negligence to suffer an injury at work
• Suicide can only be anovus actus interveniensif done consciously and voluntarily in the absence of mental illness. Where it results from a reduction in capacity caused by the defendant’s breach, it will not break causation.
• Where psychiatric harm such as depression is a foreseeable result of the breach, there is no need to demonstrate that suicide specifically was foreseeable to establish that the loss was not too remote ⇒ A tortfeasor who reasonably foresaw the occurrence of some damage need not foresee the precise form which the damage might take:

Answer 10

Held: The CoC was not broken. D was liable for the man’s death subject to a reduction for contributory negligence.

[29] ‘If Mr Corr had not suffered from the clinical depression brought about by the accident, he would not have had the suicidal tendencies that led him eventually to kill himself. In my opinion, on the principles established by the authorities to which I have referred, the chain of causal consequences of the accident for which Mr Corr’s negligent employers are liable was not broken by his suicide.’ (Lord Scott)

Facts: The claimant’s husband was an engineer who suffered a workplace injury. The injury left him disfigured and caused him to suffer post-traumatic stress disorder and worsening depression. As a result, he committed suicide. The claimant sued under the Fatal Accidents Act 1976. The defendant, the man’s employer, accepted liability in negligence for the man’s initial injuries and the consequent psychiatric harm. However, they argued that any losses resulting from the man’s death should not be recoverable.

Issues

1. Was suicide outside of the scope of theduty of careowed by the defendant to their employees?
2. Was the suicide anovus actus intervenienswhich broke causation?
3. Did the suicide trigger the defence ofvolenti non fit injuria?
4. Did the suicide amount tocontributory negligence?

Question 11

Spencer v Wincanton Holdings [2009] EWCA Civ 1404,

claimant - intervening act

[15] ‘Fairness, baldly stated, might be thought to take things little further than reasonableness. But what it does is acknowledge that a succession of consequences which in fact and in logic is infinite will be halted by the law when it becomes unfair to let it continue. In relation to tortious liability for personal injury, this point is reached when (though not only when) the claimant suffers a further injury which, while it would not have happened without the initial injury, has been in substance brought about by the claimant and not the tortfeasor.’ (Sedley LJ)

Answer 11

Held: Yes, D was held liable for additional disability, but damages were reduced by 1/3 for contributory negligence

C injured his leg and had it amputated due to D employer’s negligence
C tried to fill his car with petrol despite being handicapped, tripped and fell and became wheelchair bound
Issue
Was D liable for the additional disability?

Question 12

Clay v TUI UK Ltd [2018] EWCA Civ 1177

claimant - intervening act

[106] ‘The judge then balanced the degree of inconvenience to which Mr Clay and his family were subjected against the risk of injury were he to attempt to jump from the one balcony to the other, and he found that Mr Clay’s action in climbing over the balustrade and putting his weight on the outside ledge constituted a strikingly new and independent act such that it became, in law, the effective cause of his injury.’ (Kitchin LJ)

Answer 12

Held: this conduct broke the CoC and the hotel was not liable for the fractured skull.

= is the C act an effective and independent cause of the injury or not.

Facts: C had been on holidays with family. They had a room with balcony. C on accident trapped ppl on the balcony and left people trapped by locking the door which had a fault mechanism. C tried to climb and fell and fractured his skull.

Question 13

The Wagon Mound (No. 1) [1961] AC 388

remoteness - reasonable foreseeability test

Re Polemis Overruled.

Viscount Simmonds
For it does not seem consonant with current ideas of justice or morality that for an act of negligence, however slight or venial, which results in some trivial foreseeable damage the actor should be liable for all consequences however unforeseeable and however grave, so long as they can be said to be ‘direct’. It is a principle of civil liability, subject only to qualifications which have no present relevance, that a man must be considered to be responsible for the probable consequences of his act. To demand more of him is too harsh a rule, to demand less is to ignore that civilised order requires the observance of a minimum standard of behaviour (at 422).

‘For, if it is asked why a man should be responsible for the natural or necessary or probable consequences of his act (or any other similar description of them) the answer is that it is not because they are natural or necessary or probable, but because, since they have this quality, it is judged by the standard of the reasonable man that he ought to have foreseen them.’

426: ‘[Their Lordships] have been concerned primarily to displace the proposition that unforeseeability is irrelevant if damage is “direct.” In doing so they have inevitably insisted that the essential factor in determining liability is whether the damage is of such a kind as the reasonable man should have foreseen.’ (= not asking what you have effectively forseen but what should you have foreseen)

Answer 13

D was not liable for damage caused by the fire as it was not reasonably foreseeable that the oil would be set alight on water.
= it is in the case that the PC determined that the approach for limiting which csq you are liable for is the reasonable foreseeability (rejecting the idea of directness).

Ds were charterers of the Wagon Mound
Oil leaked from the Wagon Mound but D’s employees let it spread as they thought that the risk of it catching fire on the water was remote
When the oil caught fire, C’s wharf (Mort’s Dock) was damaged
The New South Wales Supreme Court ruled in favour of C on the basis that the Re Polemis rule was binding and as such damage directly flowing from D’s tortious act is actionable despite not being reasonably foreseeable

Question 14

Hughes v Lord Advocate [1963] AC 837,

remoteness - reasonably foreseeable - kind of damage

Answer 14

Held (Privy Council)
Appeal allowed; C’s injury was reasonably foreseeable. Held: there was liability – you can only escape liability if the damage differs in kind, not in extent.

*‘This accident was caused by a known source of danger, but caused in a way which could not have been foreseen, and, in my judgment, that affords no defence.’ *

This was a Scottish case
Employees of the Post Office (Ds) left a manhole uncovered and protected only by a tent and paraffin lamp
A boy (C) climbed down the hole but kicked over one of the lamps when he came up, causing an explosion
C sustained terrible burns and sued for damages in negligence
The Court of Sessions held that the accident and injury was not reasonably foreseeable; C appealed

Question 15

Jolley v Sutton LBC [2000] 1 WLR 1082

remoteness - reasonably foreseeable - kind of damage

‘The speech of Lord Reid in Hughes is in harmony with the other judgments. It is not in conflict with The Wagon Mound No. 1. The scope of the two modifiers—the precise manner in which the injury came about and its extent—is not definitively answered by either The Wagon Mound (No. 1) or Hughes v Lord Advocate. It requires determination in the context of an intense focus on the circumstances of each case’ (Lord Steyn rejecting the tension between Hughes and WM)

Answer 15

the House of Lords disagreed, preferring the trial judge’s broader characterisation of the risk created by the council’s negligence as that children would ‘meddle with the boat at the risk of some physical injury’ = D was liable as the accident and injury was reasonably foreseeable.

Facts: Boat left abandoned, the council knew it was there and planned to remove it. The wood was rotten. Two boys decided to repair it, but the boat fell, and one was paralysed.

Held: the Court of Appeal held that the damage was too remote. While physical injury by, say, falling through rotten planks on the boat’s deck was foreseeable, the injury the boy suffered when the boat collapsed on him was not.

Question 16

Smith v Leech Brain [1962] 2 QB 405

remoteness - thin skull rule

Lord Parker CJ
*“If a man is negligently run over… it is no answer to the sufferer’s claim for damages that he would have suffered less injury… if he had not had an unusually thin skull or an unusually weak hear”

‘For my part, I am quite satisfied that the Judicial Committee in the Wagon Mound case did not have what I may call, loosely, the thin skull cases in mind. It has always been the law of this country that a tortfeasor takes his victim as he finds him… If the Judicial Committee had any intention of making an inroad into that doctrine, I am quite satisfied that they would have said so.’ *

Answer 16

Held: The D’s argument failed. It must be foreseeable that some injury would occur – the cancer was only an extension of that burn. Though death from the cancer was not reasonably foreseeable as the employer had not known about his underlying condition, the employer was liable for it in negligence

The deceased was splashed on the lip by molten metal due to employer’s negligence
The resulting burn activated a pre-cancerous condition and he died from cancer
His widow brought a claim for negligence against the employer

Question 17

Tremain v Pike [1969] 1 WLR 1556,

remoteness - thin skull rule

Answer 17

Held: it was too remote and the way how it was caught as well.

‘Weil’s disease was at best a remote possibility which they could not reasonably foresee, and that the damage suffered by the plaintiff was, therefore, unforeseeable and too remote to be recoverable.’

The farm labourer contracted leptosporosis from handling materials on which rats had urinated.

Question 18

Lagden v O’Connor [2003] UKHL 64,

remoteness - thin skull rule

Lord Hope:

[61] ‘the correct test of remoteness today is whether the loss was reasonably foreseeable. The wrongdoer must take his victim as he finds him… This rule applies to the economic state of the victim in the same way as it applies to his physical and mental vulnerability. It requires the wrongdoer to bear the consequences if it was reasonably foreseeable that the injured party would have to borrow money or incur some other kind of expenditure to mitigate his damages.’

= the thin skull rule applies to the physical state as well as the economic state of C– reasonably foreseeable

Answer 18

Appeal dismissed, Lagden was entitled to recover costs in full on the basis of the ‘thin skull’ rule. The TS applies to the economical state as well

Mr. Lagden’s car, parked and unoccupied at the time, was negligently damaged by Mrs. O’Connor in a collision and was brought in to be repaired
Lagden needed a replacement car, but was unemployed and entered into an unfavourable deal with a credit-hire company which included unusual additional charges
The credit-hire company brought a claim on behalf of Lagden against O’Connor, including for the additional charges
O’Connor disputed the charge and claimed the additional charge was caused by the claimant’s impecuniosity and was therefore not recoverable

Question 19

SAAMCO/Banque Bruxelles Lambert SA v Eagle Star Insurance Co [1997] AC 191

scope of duty

Lord Hoffmann at 213:

213: ‘A mountaineer about to undertake a difficult climb is concerned about the fitness of his knee. He goes to a doctor who negligently makes a superficial examination and pronounces the knee fit. The climber goes on the expedition, which he would not have undertaken if the doctor had told him the true state of his knee. He suffers an injury which is an entirely foreseeable consequence of mountaineering but has nothing to do with his knee.

… On what I have suggested is the more usual principle, the doctor is not liable. The injury has not been caused by the doctor’s bad advice because it would have occurred even if the advice had been correct.’

‘Rules which make the wrongdoer liable for all the consequences of his wrongful conduct are exceptional and need to be justified by some special policy. Normally the law limits liability to those consequences which are attributable to that which made the act wrongful. In the case of liability in negligence for providing inaccurate information, this would mean liability for the consequences of the information being inaccurate.’

Answer 19

D was not liable for not liable for the full extent of the loss.

the Court of Appeal emphasised that it is not part of a valuer’s duty to advise the client on future movements in property prices, whether nationally or locally. To the extent that a belief among buyers and sellers as to what will happen in the future affects current prices, this should be taken into account in the valuation. However, the valuer’s concern is with current value only; he or she is not asked to predict what will happen in future.

The purpose of a valuation is not to protect the client against a future decline in the property market. The essential question is the scope of the duty to the client taken on by the valuer. Ordinarily, this will simply be to provide a valuation rather than to advise on the whole transaction. Hence the valuer’s liability will normally be limited to the consequences of the valuation itself being wrong, rather than all the consequences, however foreseeable, of having entered into the transaction relying upon the valuation.

A property company, which wished to borrow money on the security of recently acquired commercial properties, instructed a firm of valuers to value those properties. It was held that the valuers owed a duty of care to both the lender and the insurance company that issued mortgage indemnity guarantee policies, since the valuers knew that both these parties would rely on their valuations.

The valuers admitted negligence, but other aspects of the case were the subject of an appeal.

Question 20

BPE Solicitors v Hughes-Holland [2017] UKSC 21

scope of duty

[41] ‘even if the material which the defendant supplied is known to be critical to the decision to enter into the transaction, he is liable only for the financial consequences of its being wrong and not for the financial consequences of the claimant entering into the transaction so far as these are greater. Otherwise the defendant would become the underwriter of the financial fortunes of the whole transaction by virtue of having assumed a duty of care in relation to just one element of someone else’s decision.’

Answer 20

Held (Supreme Court)
Applying the SAAMCO principle Solicitors were providers of information and thus not liable for any losses

Principles:
* The distinction between an adviser and a provider of information is that an adviser has a duty to consider all aspects of a prospective transaction whereas a provider of information only has a duty to provide advice on a limited aspect of the transaction
* The fact that the material contributed by the defendant is known to be critical to the claimant’s decision whether to enter into the transaction does not itself turn it into an “advice” case

C agreed to loan money to his friend, who had fraudulently told him it was for the purpose of property development
D solicitors were instructed to craft a loan agreement
D negligently stated in the agreement C that the money was for development when it would in fact be used by the friend to discharge an existing loan on secured on the property
In SAAMCO v York Montague [1996] 3 All ER 365, the House of Lords laid down in the principle that while an adviser of a course of action is liable in negligence for all foreseeable consequential loss from a course of action being taken, a provider of information is liable only for the foreseeable loss attributable to incorrect information

Question 21

Meadows v Khan [2021] UKSC 21,

scope of duty

Lord Hodge & Sales

[53] ‘The mechanism by which the duty nexus question is addressed in the valuers’ negligence cases is to ask a counterfactual question: what would the claimant’s loss have been if the information which the defendant in fact gave had been correct? We refer to that question as “the SAAMCO counterfactual”. It is sometimes misunderstood…’

‘… The question is not whether the claimant would have behaved differently if the advice provided by the defendant had been correct. Rather, the counterfactual assumes that the claimant would behave as he did in fact behave and asks, whether, if the advice had been correct, the claimant’s actions would have resulted in the same loss.’

= if we look at the autism, that was a result of the baby being born but unconnected with the haemophilia test.

[58] ‘A defendant’s act or omission may as a matter of fact have consequences which, because they are not within the scope of his or her duty of care, do not give rise to liability in negligence’

Answer 21

Held: The doctor is only liable for the losses falling within the scope of her duty of care to advise whether Ms Meadows was a carrier of the haemophilia gene, but not the costs associated with Ms Meadows son’s autism.

Lords Hodge and Sales: When thinking about liability in egligence cases, some questions may be used.

[28] ‘Those questions are:

(1) Is the harm (loss, injury and damage) which is the subject matter of the claim actionable in negligence? (the actionability question)

(2) What are the risks of harm to the claimant against which the law imposes on the defendant a duty to take care? (the scope of duty question)

(3) Did the defendant breach his or her duty by his or her act or omission? (the breach question)’

(4) Is the loss for which the claimant seeks damages the consequence of the defendant’s act or omission? (the factual causation question)

(5) Is there a sufficient nexus between a particular element of the harm for which the claimant seeks damages and the subject matter of the defendant’s duty of care as analysed at stage 2 above? (the duty nexus question)

(6) Is a particular element of the harm for which the claimant seeks damages irrecoverable because it is too remote, or because there is a different effective cause (including novus actus interveniens) in relation to it or because the claimant has mitigated his or her loss or has failed to avoid loss which he or she could reasonably have been expected to avoid? (the legal responsibility question)’

C was concerned that might be a carrier of haemophilia. She asked to be tested. The doctor negligently commissioned the wrong tests and test came back negative. The C conceived a son who was born with haemophilia, in fact C was a carrier of the gene. If the test had come back positive, she would have aborted. The son was also autistic and required intensive support as a result.

Issue: whether D was liable for the costs of bringing up the disabled child who has both conditions or only for those costs which are associated with the hereditary disease.

Question 22

Manchester Building Society v Grant Thornton UK LLP [2021] UKSC 20 - Should be read together with Khan v Meadows

scope of duty

The majority decision of Lord Hodge and Lord Sales (with whom Lord Reed, Lady Black and Lord Kitchin agreed) clarifies that:

1. “the scope of the duty of care assumed by a professional adviser is governed by the purpose of the duty, judged on an objective basis by reference to the purpose for which the advice is being given”. The test is, therefore, to examine what risk the duty was intended to guard against and then look to whether the loss suffered by the claimant represents the realisation of that risk;
2. the distinction between “advice” cases and “information” cases that was established inSAAMCO(and critical to the Court of Appeal’s analysis in this case) is too rigid and is liable to mislead. Rather than trying to “shoe-horn” a case into one of these categories and letting that classification lead the analysis, the focus should be on identifying the purpose to be served by the duty of care assumed by the defendant; and
3. the counterfactual test established inSAAMCO(i.e. if the case is an “information” case, asking whether the claimant’s actions would have resulted in the same loss if the advice given by the defendant had been correct) is only a tool to cross-check the result of the analysis of the purpose of the duty.Over-reliance on the counterfactual has the potential to confuse rather than assist the correct analysis. Again, the better approach is to focus on the purpose for which the advice was given.

⇒ the ‘rigid’ distinction between ‘advice’ and ‘information’ was rejected by the majority

Answer 22

Appeal allowed. Grant Thornton advised the Society that it could use hedge accounting for its mortgage business model. This negligent advice led the Society to enter swap transactions, exposing it to break costs when hedge accounting proved impossible. The majority held these losses were within Grant Thornton’s duty of care since their advice was specifically meant to help assess regulatory capital risks from the proposed accounting method. The break costs were therefore recoverable, subject to contributory negligence.

The auditor had negligently advised the society that its accounts could be prepared using “hedge accounting” and that such accounts would give a true and fair view of the society’s financial position. In reliance on that advice, the society entered into long-term interest rate swap contracts as a hedge against the cost of borrowing money to fund mortgage lending. The misstated accounts hid volatility in the society’s capital position and hid a severe mismatch between the negative value of the swaps and the value of the society’s loans. After the error was revealed, the society had to restate its accounts to show substantially reduced net assets and insufficient regulatory capital. To extricate itself from the situation, the society closed out the swaps early at a cost of £32.7 million. The society brought proceedings against the auditor claiming the amount paid to close out the swaps, less the £6 million gains it made on the loans it would not have made had it not entered the swaps. The auditor admitted negligence but said that the losses were not within the scope of its duty of care. A High Court judge agreed with the auditor and held that, had the auditor been liable, the society’s damages would have been reduced by 50% for contributory negligence. The Court of Appeal upheld the judge’s decision.

The issue before the Supreme Court was how to determine the nature and ambit of the scope of duty principle and, in particular, how this applied to Grant Thornton’s role.

Question 23

Charles B Lawrence & Associates v Intercommercial Bank [2021] UKPC 30

scope of duty

[16] Comparing Meadows v Khan to the facts of this case, one can see that, just as the haemophilia loss, but not the autism loss, was within the scope of the doctor’s duty of care so here the commercial, rather than residential, overvaluation loss, but not the defective title loss, was within the scope of the valuer’s duty of care. And in each case that conclusion follows from the purpose of the advice or information given by the professional and hence the risk that was being guarded against.

Answer 23

The key issue on the appeal to the UK’s Privy Council was whether the lower courts were correct that all the losses claimed fell within the scope of CBL’s duty. Applying MBS and Khan, the Privy Council noted that in determining the scope of a professional’s duty of care, it was important to consider the purpose of the advice or information being given.

CBL argued that the Bank had suffered two distinct losses because:

the secured land was overvalued due to an assumption it could be used for commercial use rather than residential use, and
the title to the land was defective.
CBL argued the second loss was outside of its duty and, therefore, irrecoverable as it was not part of the valuer’s role to investigate the title to the land. That was the responsibility of the conveyancing solicitor.

The Privy Council agreed with CBL and held that that the purpose of CBL’s report was to value the property on the assumption that there was good legal title to the land. It was not CBL’s role to advise on, or give information about, the title to the land. It was also clear that the Bank was not looking to CBL’s report to advise on, or give information about, the title to the land. That was a matter for a lawyer, not a valuer.

The Privy Council determined the loss factually caused to the Bank by the defect in title should be deducted from the losses recoverable from CBL. This was assessed as the true value of the land on the date of the loan on the assumption that there was good title in the sum of US$2.375 million and gave a recoverable loss of US$625,000.

Intercommercial Bank Ltd (Bank) was approached for a loan by Singapore Automotive Trading Ltd (Borrower). The security for the loan was land owned by a related entity (Guarantor). The Guarantor instructed Charles B Lawrence & Associates (CBL) to provide a valuation of the land.

CBL valued the property at US$15m, on the basis that:

• a good marketable title could be shown
  planning permission would be granted for commercial development of the land, and
• the land was free from all encumbrances with vacant possession.
• Relying on the valuation, the Bank lent US$3 million to the borrower with a mortgage over the land as security.

The Borrower and Guarantor defaulted on the loan without making any repayments. The Bank appointed a receiver to enforce the security. Through that process, the highest bid received was US$2 million. It was also discovered that the secured land could be used only for residential purposes, and that the true value of the land was US$2.36 million rather than US$15 million. The Bank then issued a claim against CBL.

The Bank subsequently discovered that the Guarantor did not have good title to the secured land, which meant the mortgage was of no value. The Bank settled the claim against its lawyers regarding the defective title.

The High Court and Court of Appeal held that CBL was liable for all of the bank’s loss, less a 20% deduction for contributory negligence.

Question 24

Armstead v Royal & Sun Alliance Insurance Company Ltd [2024] UKSC 6

scope of duty

> Where it is shown that loss has (factually) been caused by the defendant’s breach of a duty of care, five principles are capable of limiting the damages recoverable by the
claimant. They are: (i) the scope of the duty; (ii) remoteness; (iii) intervening cause; (iv) failure to mitigate; and (v) contributory negligence.

> As discussed above, in relation to the tort of negligence, this requires showing that the loss suffered was not of a type that was reasonably foreseeable. The underlying justification for this approach rests, as we see it, on considerations of both fairness and efficiency. Once it has been proved that the defendant has committed a wrong which has caused loss to the claimant, it is fair to place the onus on the wrongdoer to show a good reason why the wrongdoer should not be liable to compensate the victim for the full extent of the loss caused. In addition, it would be unduly burdensome to require a claimant who has proved that the defendant committed a tort which has caused the claimant loss to have to anticipate ways in which it might nevertheless be said that the defendant should not be held legally responsible for the loss and rebut them.

Answer 24

Held: The claimant, Ms Armstead, succeeded in her claim for her contractual liability of £1,560.
Therefore, a clear framework has been set that requires the contractual liability to be areasonable pre-estimate of loss.

2. Remoteness

The ‘real issue’ was whether the Court of Appeal was entitled to conclude that the Clause 16 sum was too remote to be recoverable on the ground that it was not a reasonable pre-estimate of the loss.

ApplyingNetwork Rail, the court found that in order for a contractual liability such as clause 16 to fall within the reasonably foreseeable type of loss, it is necessary for the claimant’s contractual lability to reflect thereasonableloss of use of the hire company; this can be apre-estimateinstead of the actual loss (which may be difficult to calculate in advance).

3. Burden of proof: remoteness

Finally, the court considered who had the burden of proving that Clause 16 was a reasonable pre-estimate of the Helphire’s loss of use.

The court reminded itself of the fundamental principle that the defendant bears the legal burden of pleading and proving a failure to mitigate loss caused by a tort. Remoteness was considered to play an analogous role to the duty to mitigate, contributory negligence, and the concept of intervening cause.

It was held that the burden was on the defendant to plead and prove that loss which was caused by the defendant’s tort was nevertheless irrecoverable because it was too remote i.e., that the loss suffered was not a type that was reasonably foreseeable.

Facts: Following an accident, Ms Armstead hired a Mini Cooper from a company called Helphire Ltd (now Auxillis) on credit hire terms, whilst her own vehicle was being repaired. Unfortunately, whilst driving the Mini she had a further accident. The driver of the other vehicle involved was insured by RSA.

The hire agreement between Helphire and Ms Armstead included at Clause 16 a requirement that Ms Armstead pay on demand an amount equal to the daily rental rate for a maximum of 30 days. This was to cover Helphire’s loss of use for each calendar day the vehicle was unavailable to be hired. Such terms are commonly included in car rental agreements. Though RSA admitted liability for the accident, they contested the “Clause 16 sum”, which amounted to £1,560.

Question 25

Chester v Afshar [2004] UKHL 41,

disclosure of risk

Chester test:
Chester, as per Lord Hope’s opinion, which required you to show that:

• The injury was intimately involved with the duty to warn;
• The duty was owed by the doctor who performed the surgery to which the patient had consented; and
• The injury was the product of the very risk that the patient should have been warned about when they gave their consent.

Conventional causation principles in “failure to warn” cases require the injured party to demonstrate, on the balance of probabilities, that they would have refused the treatment had they been warned of the “material risk” or, at least, would have looked to mitigate that risk. In other words, they have to show that their injury occurred “but for” the failure to warn.

See Duce where she wrongly was arguing was that Lord Hope’s test meant that she did not have to prove that her injury occurred ‘but for’ the surgeon’s negligence.

Lord Hope:

[87] ‘The function of the law is to enable rights to be vindicated and to provide remedies when duties have been breached. Unless this is done the duty is a hollow one, stripped of all practical force and devoid of all content. It will have lost its ability to protect the patient and thus to fulfil the only purpose which brought it into existence…On policy grounds therefore I would hold that the test of causation is satisfied in this case. The injury was intimately involved with the duty to warn. The duty was owed by the doctor who performed the surgery that Miss Chester consented to. It was the product of the very risk that she should have been warned about when she gave her consent. So I would hold that it can be regarded as having been caused, in the legal sense, by the breach of that duty.’

Lord Hoffmann (dissenting):

[31] ‘In my opinion this argument is about as logical as saying that if one had been told, on entering a casino, that the odds on No 7 coming up at roulette were only 1 in 37, one would have gone away and come back next week or gone to a different casino. The question is whether one would have taken the opportunity to avoid or reduce the risk, not whether one would have changed the scenario in some irrelevant detail. The judge found as a fact that the risk would have been precisely the same whether it was done then or later or by that competent surgeon or by another.’

Answer 25

Held: dismissing the appeal (Lords Bingham and Hoffmann dissenting), that a judgment in C’s favour could not be based on conventional causation principles = the risk of which she should have been warned was not created by the failure to warn. It was already there, as an inevitable risk of the operative procedure itself, however skillfully and carefully it was carried out. The risk was not increased, nor were the chances of avoiding it lessened, by what X had failed to say about it.

However, the duty of a surgeon to warn of the dangers inherent in an operation was intended to help minimise the risk to the patient and was also intended to enable the patient to make an informed choice whether to undergo the treatment recommended and, if so, at whose hands and when. X had violated C’s right to choose for herself, even if he had not increased the risk to her. The function of the law was to enable rights to be vindicated and to provide remedies when duties had been breached. Unless that was done, the duty to warn would be a hollow one. On policy grounds the test of causation was satisfied in the instant case. The risk was within the scope of the duty to warn so that the injury could be regarded as having been caused, in the legal sense, by the breach of that duty

Facts: C suffered repeated episodes of low back pain and had been referred for surgery to X, who was experienced in disc surgery. C underwent the surgery and suffered a rare complication known as cauda equina syndrome, a risk in respect of which X had failed to warn her in advance. The judge had not found that X had been negligent in the actual performance of the surgery. However, he had found that X had failed to warn C of the small risk that the operation could adversely affect her, and that had she been warned of the risk, she would not have undergone the surgery at the time she did. At first instance D was found liable - The appellant appealed against a finding that he was liable in damages for his failure to warn the respondent (C) of a risk inherent in surgery that he had performed on her

Question 26

Duce v Worcestershire Acute Hospitals NHS Trust [2018] EWCA Civ 1307

disclosure of risk

Hamblen LJ:

[69] ‘the majority decision in Chester does not negate the requirement for a claimant to demonstrate a “but for” causative effect of the breach of duty, as that requirement was interpreted by the majority, and specifically that the operation would have not have taken place when it did.’

Answer 26

• The Court of Appeal held that the trial judge did not fail to apply the Montgomery test
• The Court of Appeal in Duce considered that Lord Hope was not outlining a free-standing test for causation in Chester. It was clear that itwas decided on its special factual circumstances.
• The Court of Appeal upheld the trial judge’s finding that Ms Duce was clearly willing to have the operation whatever the risks. So, even if she had been sufficiently warned of CPSP, the operation would have gone ahead as planned and the injury would have been sustained.

The Court of Appeal’s decision clarifies 2 points:

• the scope of a doctor’s duty to warn of risks of treatment under Montgomery only applies to risks which, at the time of treatment, are clearly associated with the procedure; and
• Chester applies in very limited circumstances; arguably only in like-for-like cases.

Ms Duce made a claim against the respondent for damages relating to an operation performed at Worcester Royal Hospital on 25th March 2008 which aimed to relieve her of persistent period pain. Unfortunately, Ms Duce sustained nerve damage and now suffers from Chronic Post-Surgical Pain (“CPSP”). Ms Duce did not argue that the operation was performed negligently. Her case was that she had not been adequately warned of the risk of CPSP, chronic pain or neuropathic pain as a result of the operation.

Following a 4-day trial at Birmingham County Court, the judge dismissed Ms Duce’s claim. He held that there was no duty to warn of the risk of CPSP, neuropathic or chronic pain because, at the time of the operation, these risks were not associated with that particular procedure by the medical profession. In any case, the evidence showed that Ms Duce had been sufficiently warned that the operation would cause her some pain which could last 3-6 months. Also, even if she was warned of CPSP, etc., she would have likely gone through with the operation anyway.