Negligence Pt. 3 (damage, Defense, Remedy)

Question 1

What is damage?

Answer 1

The loss suffered by the C (e.g. personal injury or damage to property)
Both factual causation and legal causation (remoteness) must be proven

Question 2

What is factual causation?

Answer 2

Determined by the “but for” test.
But for D’s act or omission, would the C have suffered damage?
E.g. Barnett v Chelsea and Kensington Hospital (1969) D, a doctor, failed to diagnose C’s arsenic poisoning, he died, C would have died anyway so no factual causation
E.g. Chester v Ashfar (2004) doctor failed to warn of risks involved in back surgery, but for failure to warn, C would not have had surgery and suffered injury. FC established

Question 3

What is an intervening act?

Answer 3

Event that can break chain of causation in factual causation.
E.g. Knightley v Johns (1982) D’s negligent driving caused accident, police senior officer sent colleague against traffic causing 2nd accident, conduct was so unreasonable it broke chain of causation

Question 4

How is legal causation (remoteness) established

Answer 4

C can only claim for types of loss that are a reasonably foreseeable result of D’s breach.
E.g. The Wagon Mound (No.1) (1961)
D negligently spilt oil in water of harbour, 2 days later, sparks from dock ignited oil, causing fire and damage to ships. Too remote and not RF
E.g. Hughes v Lord Advocate (1963)
Boy knocked an unattended lamps into manhole, burned in explosion, succeeded in claim as RF that an injury could be caused by lamp

Question 5

How does the thin skull rule affect remoteness?

Answer 5

If the type of damage is RF, but much more serious because C had a pre-existing condition, D is liable for all consequences
E.g. Smith v Leech Brain (1962)
C had rare cancer gene, burnt by molten metal at work, got cancer, died, court said burn was RF and D had to take C as he found him

Question 6

What are the defences in negligence?

Answer 6

There are 2 main defences that can be raised by the D, contributory negligence and consent. If succesful, defence may allow D to escape liability even where all elements of the tort are present

Question 7

What is contributory negligence?

Answer 7

• where D all ages C has partly caused or contributed to the damage
• the Law Reform (Contributory Negligence) Act 1945 allows a judge to reduce any damages awarded to the C according to extent at which C contributed to their injuries
• partial defence, both D and C partly to blame
  E.g. Froom v Butcher (1975) D’s head injuries held to be caused by not wearing seatbelt, award reduced by 20%
  Can be 0 difference if seat belt wouldn’t affect, 100% if would have completely prevented (Jayes v IMI 1985)

Question 8

What is consent as a Defense?

Answer 8

Where C has voluntarily agreed to a risk of harm with full knowledge of risk.
It is a complete defence, if successful, C paid no damages
E.g. Morris V Murray (1991) C took flight in aircraft, knowing D was drunk, couldn’t claim
(In road traffic accident, D can knit have defence by saying C consented by accepting a lift
+ where C has no choice but to accept, defence does not succeed/has duty to act
E.g. Ogwo v Taylor (1987) D negligently set fire to house, C was firman who attended, despite wearing correct clothing, got burns, D’s defence denied