negligence remoteness Flashcards
what is the central concern of remoteness
The extent of liability- the extent of recoverable of loss
what are the 3 rationals for the remoteness principle
- Balancing C’s interest in security and D’s freedom of action;
- not discouraging enterprise by tilting the law too far towards C;
- not imposing disproportionate burdens on D
what did Andrews J say in Palsgraf about remoteness
that it is a ‘matter of practical politics’
what does Janet O’ Sullivan say on remoteness (3)
- she mixes up legal causation and remoteness
- her approach is reminiscent of US tort lawyers (who do the same thing when they invoke the doctrine of ‘proximate cause’).
- try to keep legal causation and remoteness distinct from one another
idea of a scope rule
New York fire rule case
Ryan v New York Central Railway
what is the a scope rule in New York fire case
Where D carelessly allows fire to spread from his or her property, liability does not extend beyond the first adjoining house
what test was considered the right test for remoteness in Wagon Mound (No 1)
the reasonable foreseeability test
what did Viscount Simonds say about the RF test in Wagon Mound (No 1)
(2)
- this test justly accommodates security and freedom of action
- this test confers wide discretion on judges
what was Viscount Simonds doing in Wagon Mound
balancing as seen as in Walker v Northumberland CC
what does Fleming say about RF and judicial discretion (2)
- ‘Foreseeability is a criterion with a wide margin of tolerance, largely influenced by individual experience and imagination’
- judges are able to attach importance to the features of a case that strike them as salient
Hughes v Lord Advocate outcome (2)
- The precise sequence of events does not have to be foreseeable. (Wagon Mound case was endorsed here)
- Harm must be of a reasonably foreseeable type. this confers discretion to judges
what case did judges apply the approach from Hughes v Lord Advocate
Hines v Morrow and in United Novelty Co v Daniels
Jolley v Sutton LBC outcome (3)
- emphasis on the ‘scope’ of the risk (Lord Hoffman)
- the rotten condition of the boat had a significance beyond the particular danger it created
- harm was of a reasonably foreseeable type
what is the egg shell skull principle
C has an eggshell skull (or other congenital weakness) and D is, hence, liable for unforeseeable loss(es).
Sayers v Perrin outcome
electric shock triggers (unforeseeable) polio; D held liable
Pigney v Pointers Transport Services outcome
carelessness leads to unforeseeable melancholia and suicide; D held liable. (Applying the eggshell skull principle, the losses were recoverable, despite being beyond the threshold of reasonable foreseeability).
Corr v IBC Vehicles Ltd outcome
- Suicide was the result of the breach and didn’t fall out of the scope of defendant’s duty.
- Mr Corr’s suicide was not a voluntary, informed decision’
what is the rationale for the nous acts interveniens doctrine as seen in Corrective v IBC Vehicles Ltd
fairness
what test was set out in Re Polemis
the direct consequences test
Re Polemis & Furness Withy & Co- result
The total loss of the ship is a direct consequence of carelessness. In the absence of carelessness, this result would not have occurred
what did Viscount Simonds say about Re Polemis in Wagon Mound (No 1)
-it does not seem constant with the ideas of justice and morality however slight trivial, that an actor should be liable for all consequence, so long as they can be said to be ‘direct’
criticisms of applying Re Polemis for egg shell skull principle (2)
- you may get a harsher outcome as ‘direct consequence’ encourages the aggressive trace in the consequences,
- as a result, it loses sight of, or perhaps fails to bring in balance the idea of a ‘just accommodation’ of competing concerns; security and freedom of action.
what type of justice is seen in the egg shell skull principle when applied in Re Polemis
distributive justice
what does Leon Green say about remoteness/ egg shell skull
No formula can be devised that will yield uncontroversial answers to all proximate cause [US doctrine] or remoteness questions
-same applies to remoteness- it is not straightforward to apply
defences
what must D’s show
-That they can meet the requirements of any defence (e.g. consent) on which they seek to rely
defences
what must D’s have to prove- which case highlights this
D’s have to prove on the balance of probabilities that they can meet the relevant requirements
(Wakelin v London and South Western Railway)
illegality
what is this
-moral and legal wrongdoing
illegality
what does the the maxim ex turpi causa non oritur actio means
the illegal or wrongful nature of C’s conduct may bar his or her claim in tort.
roots of the illegality defence- which case was this first seen in
Holman v Johnson
illegality
Holman v Johnson- outcome
the principle of public policy is this: ex dolo malo oritur actio. no court will lend its aid to a man who founds his cause of action upon an immoral or illegal act’.
illegality
how would a D run this defence
To run this defence, D must establish a causal connection between (i) C’s wrongful conduct and (ii) the harm suffered by C
(National Coal Board v England).
case for how a D would run the illegality defence
National Coal Board v England
what does Dillon LJ say in Pitts v Hunt about illegality
‘the fact that a plaintiff was engaged in illegal activity which brought about his injury does not automatically bring it about that his claim for damages’
-You can evoke the illegality defence with some prospect of it working, but judges exercise their discretion
what are the 2 conceptions of the illegality defence
1) The defence is based on considerations of public policy: e.g., compensating C would be ‘shocking to the public conscience’ or send out an undesirable signal to criminals and other wrongdoers (Kirkham v Chief Constable)
2) C’s 2. C’s participation in criminality or wrongdoing makes it impossible for judges to specify a standard of care. (Jackson v Harrison)
joint illegal activity- Pitts v Hunt outcome (2)
Ex turpi causa and public policy did operate to preclude the imposition of a duty of care.
To compensate C would be at odds with Parliament’s intentions in enacting road traffic legislation (concerned with safety).
Refill v Newbury outcome - compare to Pitts
- damages can be reduced if C contributed to negligence
- C can sue his victim (Revill) but not his accomplice (Pitts)
Clunis v Camden and Islington Health Authority- what 2 considerations were relevant here
and what is the public policy here
1) illegality
2) C knew or could be presumed to know that his conduct was wrongful.
public policy: deterring criminal acts
Gray v Thames Trains Ltd outcome
-illegality defence applied]-Gray was mentally ill and killed someone- wanted to recover compensation for loss of earnings
Clunis v Camden and Islington Health Authority- facts
- C mentally ill, in a mental hospital then charged with very little support
- he then killed Victim
- C sues in negligence-
- D able to rely on illegality defence
Gray v Thames Trains Ltd - which case did judges use to find support for their decision
Canadian case: Hall v Hebert
-identified consistency as the sole justification for the illegality defence- which was apparent in Gray
what principle from Gray iis seen as a justification for the illegality principle
the consistency principle
what are the 5 justifications for the illegality defence
- deterrence (Clunis)
- retribution (Pitts)
- Maintaining the integrity of the legal system (Weir- academic)
- Outlawry (C is effectively put beyond the law’s protection- Harvey (academic))
- Consistency (Gray)
illegality and immorality
2 cases
- Nayyar v Denton Wilde Sapte
- Safeway Stores Ltd v Twigger
Nayyar v Denton Wilde Sapte
outcome
The principle of ex turpi causa can extend to immoral as well as illegal acts and may apply to improper conduct evincing serious moral turpitude’ (Hamblen J)
Safeway Stores Ltd v Twigger outcome
Flaux J- ‘the maxim ex turpi causa ‘is not limited to criminal acts’
-‘There must be an element of moral turpitude or moral reprehensibility involved’.
(grave wrongdoing)
James Goudkamp on ex turpi causa (2)
- ‘The decisions in Nayyar and Safeway Stores have taken tort law in the wrong direction insofar as the maxim ex turpi causa is concerned’
- ‘the maxim stands out as particularly problematic in these respects’
Henderson v Dorset Health University NHS Foundation Trust outcome
D made successful use of the defence of illegality; the Supreme Court declined to depart from the House of Lords’ decision in Gray v Thames Trains and concluded that Clunis v Camden and Islington Health Authority should not be overruled.
in Henderson, Patel v Mirza was used.
what are the 3 considerations highlighted in Patel for the illegality defence
1) the underlying purpose of the prohibition which has been transgressed’; (the wrongful conduct under consideration)
2) public policies which may be rendered ineffective or less effective by denial of the claim’
3) application of the law with ‘a due sense of proportionality’ (per Lord Toulson). (also applied in Stoffel and Co v Grondona)
Henderson
What did Janet O’Sullivan say about illegality in the Supreme Court (2)
- in a novel case the court will move by incremental analogy from existing precedent, aided by Patel’s trio of considerations’
- If you’re looking at an illegality case, look first at relevant authority (precedent). If the case is novel, the court has to think about an incremental extension of the illegality defence, it has to think about developing the law on the basis of analogy, and that’s when the three considerations come in.
consent
what is this about
personal responsibility- D bares burden of proof
consent
how much D rely on this defence (2)
- Voluntary agreement: in order for D to rely on this defence, C must voluntarily agree to run the relevant risk(s): Bowater v Rowley Regis Corporation
- knowledge: In order for D to rely on this defence, C must have full knowledge of the relevant risk(s): Wooldridge v Sumner
consent
voluntary agreement case
Bowater v Rowley Regis Corporation
consent
knowledge case
Wooldridge v Sumner
consent
what type of test is the knowledge test
- subjective- Smith v Austin Lifts
- constructive knowledge: Dixon v King
consent
what type of knowledge is not sufficient for consent
constructive knowledge is not a sufficient basis on which to invoke the defence: Dixon v King.
the limited scope of the consent defence
case
Nettleship v Weston
the limited scope of the consent defence
Nettleship v Weston- what does Lord Denning say about the scope of consent
- the defence has been severely limited
- ‘courts adhere to the view that in employment cases the defence should be applied “with extreme caution”
Consent and the Road Traffic Act 1988
what does S 149(3) say about consent
- invalidates any agreement to restrict a driver’s liability to a passenger where the driver is required to be insured
- the fact that a passenger has ‘willingly accepted’ the risk of negligence does not negative liability on the part of the driver. (Consent cannot be used here)
consent
Morris v Murray outcome
- loss left to where it fell. Emphasis on Cs personal responsibility
- no equivalent section of S149(3) RTA 1988
consent and sporting activities
does consent yield a defence for sporting activities
Consent rarely yields a defence where d’s conduct goes beyond the normal rules of the game:
Gleghorn v Oldham
consent and sporting activities
2 cases
- Gleghorn v Oldham
- Simms v Leigh Rugby League Football Club
consent and sporting activities
Simms v Leigh Rugby League Football Club outcome
Held to have assented to run relevant risk(s).
consent and sporting activities
case for the idea that consent rarely yields a defence where D’s conduct goes beyond the normal rules of the fame
Gleghorn v Oldham
consent and rescuers
when may D try to run the defence of consent or argue that C’s intervention breaks the causal chain
When C suffers harm while seeking to rescue A, and A has been put in danger as a result of D’s carelessness,
Baker v T.E Hopkins outcome
Morris LJ: ‘Those who put men in peril can hardly be heard to say that the rescue attempt was not caused by the creation of the peril’.
ICI v Shatwell outcome
- C sues employer (relying on doctrine of vicarious liability)
- action fails, C consented to run relevant risks
what does Lord Reid distinguish between in ICI v Shatwell (2)
- Careless collaboration
- deliberate disobedience
what is the policy argument in Baker v T.E Hopkins
Through carelessness, the D can create a situation that draws someone acting reasonably into that situation (a rescuer), and when that happens judges are enthusiastic about responding positively to arguments running on the theme: the rescue breaks the causal chain and not keen on consent-based arguments
Baker v T.E Hopkins
what case does Wilmer LJ cite- give quote
Cardozo J’s dictum in Wagner v International Railway Co: ‘danger invites rescue. the cry of distress is the summons of relief’.
what does Cardozo say in Wagner v International about wrong that imperils life
The wrong that imperils life is a wrong to the imperiled victim; it is a wrong also to his rescuer’.
how do Hart and Honore describe the C as being under what obligation in (Baker v t.e Hopkins)
under a moral obligation
what type of defence is contributory negligence
a partial defence
what is contributory negligence (2)
-where there is multiple responsibility
0the ‘just and equitable’ apportionment of loss (judges have discretion)
what are courts supposed to do when C’s damages arise partly due to his own fault and partly due to Ds dault
courts are required to apportion responsibility for the losses (Law Reform (Contributory Negligence) Act 1945, section 1(1)).
how does Viscount Simon describe CN in Nance
‘a shield against the plaintiff’s claim’
what standard is applied to C in CN
a RP standard
how can D run the claim of CN successfully- what must he show (2)
1) ‘fault; on Cs part (applying RP standard)
2) factual and legal causation
CN
RP standard case
From v Butcher
RP standard in CN
Capps v Miller outcome
failing to wear a seatbelt/ helmet- D can claim CN
RP standard in CN
Owens v Brimmell
contributory negligence may be pleaded where a passenger consents to be driven by an intoxicated driver. You can’t use the defence of consent here but contributory negligence
RP standard in CN
Gregory v Kelly
contributory negligence may be pleaded where C drives a vehicle he or she knows to be defective.
CN
What did Lord Asquith hold in Stapley v Gypsum Mines about CN (3)
‘The question [of contributory negligence] must be determined by applying common sense to the facts of each case’
- Exercising strong judicial discretion, but expected to deliver a just outcome
- The consequent high-levels of uncertainty put risk-averse claimants at a disadvantage
CN and children
Yacht v Oliver Blais outcome
c held not to have been contributorily negligence
CN and children
Morales v Ecclestone outcome
eleven-year-old held to be 75% responsible, having run into the road and been struck by D’s vehicle
CN
What was held in Jones v Boyce about the agony of the moment
‘If the plaintiff’s act resulted from a rash apprehension of danger, which did not exist .. he is not entitled to recover’
CN
what was held in Jones v Live about personal responsibility
he contributed 1/5 to the accident
CN
what was held in Pitts v Hunt
-what did Beldam LJ state
it was thought that judges could make a 100% deduction (for contributory negligence) in a suitable case
Beldam LJ stated that a 100% deduction was at odds with the requirement that both parties be at ‘fault’
CN
outcome in Reeves v Metropolitan Police
- HoL replaced 100% reduction with 50% deduction
- Detainee had been at fault
CN
Corr v IBC Vehicles outcome
- employer liable for suicide
- no deduction for CN
state the CN act
The Civil Liability (Contribution) Act 1978: Section 1(1) and section 2(1)
what is stated in The Civil Liability (Contribution) Act 1978: Section 1(1)
‘[A]ny person liable in respect of any damage … may recover contribution from any other person liable in respect of the same damage’
what is stated in The Civil Liability (Contribution) Act 1978: Section 2 (1)
decisions on the amount of contribution should be ‘just and equitable’
what are the 2 relevant considerations for CN
a. causal responsibility
b. degree of fault (Miraflores v George Livanos).
what procedure do we follow if we have a faulty C and more than 1 faulty D
-what case approved this
- Address the question of contributory negligence first, and then
- Address the question of contribution (as between two or more defendants).
Fitzgerald v Lane
