Week 7- Causation, damage, remoteness

Question 1

Why is the ‘but for’ test for causation different regarding what must be established compared to the two exceptions?

What must be shown for the two exceptions to the law?

Answer 1

This is the only test for causation under which it is shown that the defendant’s negligence was a necessary condition of the claimant’s harm. They must show that the defendants negligence was more likely to cause the damage than any other factors. Once again it must be shown on a balance of probabilities.

The Wardlaw exception shows that the plaintiff must prove, on a balance of probabilities, that the defendants negligence materially contributed to the damage incurred by the plaintiff; it is applicable in both divisible and non-divisible injuries. it may not be a necessary condition because the injury may happen irrespective of the material contribution to harm.

The Fairchild exception, applicable only in a specific kind of indivisible injuries, requires that the plaintiff can prove that the defendants negligence was a material contributor to the RISK of harm, as opposed to a material contributor to the actual harm, as in Wardlaw. Owing to the inability to identify the extent to which one defendant materially contributed to the damage, based on the limited scientific knowledge surrounding mesothelioma and asbestos, which sets it apart from the Wardlaw exception.

Question 2

Facts and significance of Bonnington Casting v Wardlaw 1956? (exception number one to “but for” causation?

Answer 2

Facts- A steel dresser exposed to silica dust at work, contracted pneumoconiosis. Part of the exposure derived from a failure on his employer’s part to discharge the duty under the Grinding of metals regulations 1925, as more precautions were expected to take place. The other contributing factor, a pneumatic hammer, could not have been made any safer through further precautions, so no duty of care was owed with respect to guarding against the risks associated with this.

Facts- Lords held that there was no need to show that the contribution of dust made by the swing grinders (which should have been guarded against) was more than 50% of the total exposure to the dust (to prove on a balance of probabilities that they caused the damage (but for)), with more dust coming from the ‘innocent’ hammer rather than the grinders. The employers were nevertheless liable for the disease.

• Ambiguous because it is not clear whether the Lords were ruling on the fact that the greater exposure added to the harm suffered (makes ‘material contribution’ compatible with but for test, as condition would not have been worsened but for the failure to guard against swing grinders.). Or it could rule on the basis that it exerted a causal influence, regardless of whether it would have happened without the swing grinder contribution, which clearly wouldn’t be compatible with ‘but for’ test.
• Nowadays, it’s likely that damages would be apportioned between the tortious and innocent causes of the disease.
• “One reading of Bonnington says that material contribution to injury could be shown in the sense that any exposure will have worsened the injury; it was a progressive disease. On a different reading, it was the interaction of different sources of dust which was taken to have caused injury; it was a case of material contribution to causation of damage.” Whilst not being the sole cause of damage, it made a material contribution, even if it didn’t reach a 50% threshold of contribution. The second reading of this is supported by the SC in Sienkiewicz.
• This is still proved on a balance of probabilities, not that it had to be proved to be above the 50% threshold of causative contribution, but that it was more likely than not to have made a material contribution to damage.

Question 3

Barnett V Chelsea hospital 1969 facts and significance?

How can this causation case be explained in terms of consequences (damage) ?

Answer 3

Facts- The three men had been vomiting for 3 hours when they arrived at the hospital, after drinking tea. The nurse reported their complaints by telephone to the duty medical officer, who instructed her to tell the men to go home to bed and call in their own doctors. This, reportedly, is what the duty medical officer said:
“Well, I am vomiting myself and I have not been drinking. Tell them to go home and go to bed and call in their own doctors, except Whittal, who should stay because he is due for an X-ray later this morning” [at 431].
All of the men left. About five hours later, one of them died from poisoning by arsenic, which had been introduced into the tea. Nield J concluded that he would have died from the poisoning even if he had been admitted to the hospital and treated with all due care five hours earlier- intervening factors can break the chain of causation, or pre-existing factors which cannot be prevented, regardless of the any attempts made to cure etc.

Significance- There was a breach of duty of care in that the hospital failed to diagnose and offer care, but the ‘but for requirement’ clearly was not satisfied. Even if they employed the utmost care for the men, the man would still have died. The hospital had breached their duty of care, but not caused the death of the deceased, and therefore were not liable for the death in negligence. A breach of duty alone cannot constitute liability in negligence if it does not cause the damage to the plaintiff.

“Causation is, again, related to responsibility. The only ‘responsibility’ in question is responsibility for consequences. If no consequences flow from the breach of duty, then I am not responsible in tort for that breach. If there is an injury, but I could not have prevented that injury through proper conduct, then again, I am not responsible, even if my behaviour is culpable. Even a clear breach of a statutory duty will give rise to no liability in tort if it is not shown to have caused the eventual damage.”

Question 4

What is ‘but for’ causation?

Answer 4

“In summary, the idea of ‘but for causation’ is treated by Hart and Honoré as no more than a useful way of asking whether the defendant’s breach of duty was effective in the history of events which led to the claimant’s loss, while avoiding ‘abstract metaphysics’. ‘But for’ causation is an important element in our common understanding of the nature of ‘cause’, particularly when causal questions are asked for the purposes of attribution of responsibility. ‘But for’ causation will, however, not always provide the tools that we need.”

But for causation:
-Not enough that the defendants action caused damage to the claimant’s property, it must have been done in a manner which breaches the duty of care and caused that relevant damage. But for is merely a starting point, which asks whether or not the damage would have happened but for the actions of the claimant. If it happens regardless, then it is not a necessary cause of damage. It must be established on the balance of probabilities, but if, on a balance of probabilities, it would more likely have happened regardless of Ds actions than not, then but for causation is not satisfied. It therefore wouldn’t be A NECESSARY CONDITION of the damage.

Question 5

Facts and significance of Baker v Willoughby 1970 AC 467 regarding concurrent and consecutive torts?

Answer 5

Baker v Willoughby 1970 AC 467:
Facts- P suffered injury to leg in road accident caused by D. Shortly before his action was heard, he was shot in the same leg in an armed robbery, causing the leg to be amputated.

Significance- First tortfeasor liable for the damages which he had caused (despite the intervention of the second event). If the second tortfeasor had been available to sue, he would have had to pay for the additional pain, suffering, loss of amenity and loss of earnings, on top of what D paid with regards to the damage which he caused himself. D remains liable for his causal devaluation to the life of P in full, despite the second event, including the loss of amenity and lower earning capacity, despite the fact that he lost the full leg soon afterwards, which clearly wasn’t attributable to him.

Question 6

Jobling v associated daries 1982 facts and significance regarding concurrent torts?
How does it disapprove of Baker v Willoughby?

Answer 6

Facts- P suffered back injury at work due to tort of D. Later developed disease to which he had a predisposition.

Significance- HoL held that disease had to be taken into account when assessing the damages. The reward of lost earnings due to Ds actions must be limited by the fact that he would have lost earnings from the onset of the disease from a certain point onwards.
-Conflict with Baker v Willoughby, which was called “unrealistic” by Lord Edmund Davies, and “not acceptable” by Lord Keith. This would be because whether or not the first injury had been caused (the leg being injured in the traffic accident), the eventual amputation would have superseded any effects of the accident anyway, and therefore why should he be liable for the lower earning capacity and loss of amenity which would have stemmed from the amputation of the leg, whilst the armed robber would only pay the additional damages?

Question 7

Facts and significance of Performance Cars v Abraham 1962?

Answer 7

Facts- the appellant had negligently hit the car of the claimant, who’s Rolls Royce had also been hit two weeks earlier. The car required a re-spray, and the claimant sought to recover £75 from the first party who hit the car. Whilst waiting for the first £75, the claimant sought to recover from the second party (the appellant).

Significance- court held that claimant was not entitled to recover the same damages twice; the appellant was absolved of all liability. It was unjust and illogical for the claimant to recover another £75 from the appellant who had not caused the re-spray to be required. There was no extra damage which had been caused, but if there had been, the appellant would have been liable for any further damage which he caused from his own collision.

Question 8

How limited is the scope of the Fairchild exception?

Why is the ‘but for’ test not possible to apply in similar mesothelioma cases?

Answer 8

The Fairchild exception is only going to apply to indivisible injuries with similar characteristics to the facts of that case ie there is a lack of medical knowledge which allows us to determine whether mesothelioma is caused by a singular fibre or more than one. Therefore we can’t determine the threshold which must be reached before the onset of the disease starts, which is why the ‘but for’ test isn’t possible to apply here- cannot confidently say that the same injury would have been suffered but for the certain employers negligently exposing an employee to asbestos.

Question 9

What are the facts of Fairchild v Glenhaven 2002?

Answer 9

Claimants exposed to asbestos dust by a number of employers in different periods of employment. All developed a fatal form of cancer, and it was common knowledge that this could be caused by anywhere between one and many asbestos fibres. Once it had been caused, it was not aggravated by further inhalation, but rather the risk of developing the cancer would increase by further exposure.

Question 10

What are the necessary conditions of the Fairchild approach?

Answer 10

1) Uncertainty: must be impossible for current scientific knowledge to prove who the true cause was of the increased risk of disease. If it is possible, then the burden of proof remains on the claimants. Otherwise, impossibility favours the claimant against the defendant, who is more likely to be liable where they increase the risk but are not the sole or material cause of the risk.
2) Single Agents: The Fairchild/ McGhee approach not applicable to cases like Wilsher, where there is a variety of different risks which the plaintiff is exposed to. Has to be the same type of risk/ exposure to the same agent.
3) Innocent or self-imposed periods of exposure: But the remarks suggested that if there is a case where one former employer who exposed the claimant to asbestos dust can be shown to have been not negligent (for example because they took proper precautions, or because their exposure of the claimant took place before the date on which such exposure could be said to give rise to foreseeable harm), then the solution reached in Fairchild may not apply. It would be provable that that defendant was not negligent, and therefore liability would fall on another defendant, or none at all. This is because they had discharged their duty of care eg in a Barnett v Chelsea hospital case.

Question 11

Facts and significance of Chester v Afshar and the difficulty of applying the ‘but for’ test? What were the reasons for the strong dissents against the decision?

Answer 11

Facts- Chester had been complaining of lower back pains and was told that surgery would rectify the pain. She was not informed of the 2% chance of the surgery going wrong and suffered a subsequent complication. It was contended whether there was a causal connection between the failure to warn the patient, and the subsequent damage.

Significance- The court held that, had she been informed of all the risks, she may have sought alternatives, and therefore the failure to warn was a necessary cause of her damage. There were two strong dissents made out.
-Lord Steyn ruled in favour of the claimant because he felt that a failure to award damages would make the role of the doctor somewhat redundant. The risk would not have changed had she been informed, but the doctor had violated her right to choose, and but for this failure to make her aware of the risks, it is conceded that she would have chosen other options, so harm could have been avoided.

Dissent 1) Lord Bingham argued that a failure to inform was not equivalent to causation of her injury from the surgery. It had to be proved that Chester would not have had the surgery at all had she been informed of the risk, in order to satisfy causation. He argued that the ‘but for’ test has not been satisfied at all, and therefore causation has not been made out. The injury would have been possible whenever and by whoever had performed the surgery, not merely by the Dr and his failure to warn her of the injury.

Dissent 2) Lord Bingham argues that even if he had warned her of the risk and she had eventually had the surgery anyway, the risk of injury was still present. The Dr had not caused the injury, even if he had breached his duty of care towards his patient by failing to act in their best interests. “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.”

Question 12

Facts and significance of Holtby v Brigham and Cowan 2000?

Answer 12

Facts- Claimant exposed to asbestos dust for several years, working for the defendant for half that time, developing a form of cancer different to that in Fairchild, because additional exposure makes this particular type of cancer worse, rather than merely increasing the risk of its development.

Significance- Held that defendant only liable for the extent that he contributed to the resultant disability. They rejected an approach based on the length of the exposure, and reduced damages payable by 25%.

• It’s been argued that in a case like Bonnington, argued today, an apportionment would likely be made, between the tortious and non-tortious causes.
• The Fairchild exception could not apply here so the defendant was not liable in full (shows strictness of the Fairchild exception- this is because the extent of the damage was 1) made worse by future exposure and 2) this further exposure could be attributed to the defendant)

Question 13

Facts and significance of Barker v Corus 2006 UKHL, how has it been reversed following the compensation act 2006 s3?

Answer 13

Facts- similar to Fairchild, claimants had contracted the same form of cancer through exposure to asbestos over many years. One plaintiff had both worked for the defendant, as well as being self-employed, thereby exposing himself to the risk in addition to his employer.

Significance- Problem 1) self-exposure: HL agreed with CA and held that a period of self-exposure did not defeat the Fairchild approach. Where there is a single agent risk, it is not necessary that all the exposures were tortious (in this case the employers one was, but self-exposure was not). The contributory negligence of the claimant is a mitigating factor for the claimants share of responsibility. The defendants liability is for the full damage suffered, a strange rule considering that they were liable for the full damage suffered by the claimant, with the increased risk of injury being construed as the full injury rather than the eventual disease, which was caused by both self-exposure and negligence on behalf of the employer.
-However,

-This decision has been reversed by the Compensation act 2006 s3, which provides a liable person (or their insurer) to recover a contribution from the financial services compensation scheme. Liability therefore apportioned because the plaintiff had also endured a period of self-exposure, which was a provable aggravating factor.

Question 14

What did the Compensation act 2006 s3 actually do with regards to mesothelioma related claims?

Answer 14

After the decision in Barker there was a swift and fierce political backlash, with large numbers of workers, families, trade unions, and Members of Parliament calling for the reversal of the ruling. This was on the basis that it would undermine full compensation for working people and their families. Soon enough the Compensation Act 2006[3] was introduced, specifically to reverse the ruling. However the Act only applies to mesothelioma. What remains to be seen is whether the “proportionate liability” idea will crop up in other situations
-This is only relevant to the situation where solvent and insolvent companies are jointly liable. Only the solvent company can pay his proportion of the damages when the companies are jointly and severally liable. The compensation act 2006 makes the liable solvent company fully liable, and capable of picking up contributions to cover the costs of paying out on behalf of the insolvent companies.

Question 15

What is the position currently regarding non-tortious exposure and the rule in Fairchild?

Answer 15

Even where non-tortious exposure eg self-exposure also materially contributed to the risk of mesothelioma, the Fairchild rule would still apply. This is illustrated by the dismissal of the appeal in Barker.

Question 16

Facts of Sienkiewicz v grief 2011 UKSC?

Answer 16

Facts- Daughter brought a claim on behalf of her mother who had worked at the factory premises at the defendant’s port. She mainly worked in the office but spent time in areas contaminated by asbestos as well. Supreme Court found defendants liable for negligent exposure to asbestos in full, but also that all inhabitants of the port were exposed to low-level asbestos, which was enough to trigger mesothelioma which could not be attributed to the defendant. Questions to be considered First, does Fairchild apply to cases where there is only one tortious exposure?
-Second, in such a case, can the same statistical evidence, which appears to be capable of being used to estimate the defendant’s contribution to the risk of damage, also be used to establish whether the tortious exposure did, or did not, cause the damage?

Question 17

What is the position on the Fairchild exception following Siekiewicz?

Answer 17

Significance- Lord Rodger- “Defendants whose breaches of duty materially increase the risk that the victim will develop mesothelioma are liable jointly and severally for the damage which the victim suffers if he does in fact develop mesothelioma. This is the current version of the Fairchild exception, as it applies in cases of mesothelioma.

• This seems to put mesothelioma cases in a category of their own, where the scientific knowledge does not necessarily require that the burden of proof fall on the claimant to prove that the defendants negligence caused their injury, where there is a single-agent contributory factor, and it can only be proved that the defendant increased the risk of the diseases onset, but cannot prove that it caused the damage via that fibre.
•  Lord Phillips explains the current law: “I see no scope for the application of the “doubles the risk” test in cases where two agents have operated cumulatively and simultaneously in causing the onset of a disease. In such a case the rule in Bonnington applies. Where the disease is indivisible, such as lung cancer, a defendant who has tortiously contributed to the cause of the disease will be liable in full. Where the disease is divisible, such as asbestosis, the tortfeasor will be liable in respect of the share of the disease for which he is responsible.”

Question 18

What are the problems with the doubles the risk test attempted to be applied in siekiewicz?

Answer 18

The doubles the risk rule puts unsound stress on the Fairchild exception in cases of mesothelioma, and held that it wasn’t necessary in such cases because it only had to be proved on a balance of probabilities that the defendant had materially contributed to the risk of harm.

Question 19

Facts and significance of Hotson v East Berkshire area health authority 1987 regarding loss of chance to avoid injury?

Answer 19

Facts- Plaintiff fell 12 feet out of a tree, taken to hospital where medical staff failed to notice his acute traumatic fracture of the left femoral epiphysis. He suffered for five days in pain at home, when he returned to hospital and the injury was sufficiently recognised. Had he been diagnosed earlier, the hip deformity, may not have been suffered, but this could not be proved on a balance of probabilities.

Significance- The traditional all or nothing approach of the house of Lords was restored but has been criticised for not dealing with the central issue. The defendant was not found to be liable, and the ‘lost chance’ possibility ruled out.

• The pain suffered was not relevant to the necrosis which he developed, and so it made no difference that the five days of pain was endurred, because it did not cause the unrelated element of damage for which he brought the claim for. It was the fall, rather than the delay, was the sole cause of necrosis. It could not be resolved on a balance of probabilities. The best evidence of the claimant was that the delay materially contributed to the necrosis, but no more. He would have to prove that, on a balance of probabilities, the that delay was a material contributory cause of the subsequent necrosis, or else he could not establish causation.
• The case is better understood, as explained by Lord Mackay, as a case involving a lack of evidence rather than being a loss of chance case. There was insufficient evidence as to whether insufficient blood vessels were left intact after the fall. If they were insufficient, and this was ascertainable straight after the fall, it was inevitable that necrosis would develop. If sufficient blood vessels were left intact, immediate treatment would have avoided necrosis. The evidence is lacking because there was no way to ascertain whether necrosis was inevitable or caused by the lost chance of medical treatment due to the delay, and so it could not be proved, on a balance of probabilities, that the necrosis would have been prevented by immediate medical attention after the fall.

Question 20

What point of law do the two decisions in Hotson v Berkshire HA and Gregg v Scott make?

Answer 20

-That the loss of chance of recovery does not suffice for damage and therefore is not sufficient for a claim in negligence, often against doctors who’s misdiagnosis results in a loss of recovery chance.

Question 21

Gregg v Scott 2005 UKHL facts and significance regarding loss of chance and medical negligence?

Answer 21

Facts- claimant consulted doctor about lump under his left arm, and the doctor failed to refer him to hospital for further investigation. It was in fact cancerous lymphoma, which could have been treated at a much earlier stage, had the first doctor not told the claimant that it was merely a build-up of fatty tissue under his arm. Only upon acute chest pain and hospital admission were the facts brought to light, and by this time, treatment was delayed for 9 months longer than it otherwise could’ve been. The claimant sought damages neither for the pain and suffering of the cancerous spread, nor the requirement of treatment, but merely the reduced chance of successful recovery as a result of delayed treatment.

Significance- Both the Lords and Court of Appeal dismissed appeals by Gregg, but Lord Nicholls and Lord Hope in the Lords dissented. The law stands that only when there was a 50% or more chance of recovery, which is severely reduced, may it be recoverable (it was 45% in this case).

Lord Nicholls (dissent) argues that the distinction between over and under 50% is unfounded and makes the doctors duty of care ‘hollow’; once the prospect of recovery falls below 50%, a doctor would be under no duty to maintain or improve the prospect of recovery, and could simply let it diminish. If a patient only ever has a prospect of recovery, the doctor’s duty should be to guard in favour of that prospect of recovery. If loss of recovery is not recoverable, then what duty are doctors guarding against by not breaching their duty of care? He disputes the all-or-nothing approach on the basis that it suggests that a patients chance of recovery is non-existent on account of falling below 50%.

• Lord Hoffmann- “But the outcome was not random; it was governed by laws of causality and, in the absence of a special rule as in Fairchild, inability to establish that delay in diagnosis caused the reduction in expectation in life cannot be remedied by treating the outcome as having been somehow indeterminate.”
• It seems that the fact that the chance is only diminished rather than gone is a big factor; it is a diminished chance case rather than a lost chance case, arguments advanced by Lady Hale and Lord Hoffmann, who were more concerned in reiterating the all or nothing approach.

Question 22

Textbook overview of the but for test and its application in divisible and indivisible injuries, in comparison to the Wardlaw exception:

Answer 22

“We have seen in this chapter that courts sometimes recognize evidence of ‘material contribution to damage’ as sufficient evidence of a causal link. The nature of this ‘material contribution’ test, and its relationship to ‘but-for’ causation, have however been exceptionally difficult to identify. As things stand, there is some evidence that a claimant who can show that the defendant’s negligence made a ‘material contribution’ to the process by which injury was caused will have satisfied the applicable causal tests. In the case of a divisible injury, there are grounds to think that this is no more than an application of the ‘but-for’ test, and in principle the damages should be proportionate to reflect the defendant’s contribution. In the case of an indivisible injury however, the current state of the authorities suggests that liability will be for the full injury suffered.”

Question 23

Facts and significance of IEG v Zurich (explaining the significance of the Fairchild exception alongside damage apportionment following the 2006 act)

Answer 23

“The Supreme Court yesterday overturned the Court of Appeal’s judgment in Zurich Insurance PLC UK Branch v International Energy Group Limited [2015] UKSC 33. This case dealt with the law in Guernsey on exposure to asbestos where there is no equivalent to the Compensation Act 2006. The case concerned whether an insurer is liable to indemnify an employer for the entire compensation the employer had paid to an employee (who had died from mesothelioma), despite the insurer only insuring the employer for six out of 27 years of the employee’s employment. The Supreme Court unanimously held that the rule of pro rata liability for the period of exposure, established in Barker v Corus (UK) plc [2006] UKHL 20, continues to apply in Guernsey and therefore Zurich was only liable to pay compensation in proportion to the period of cover it provided to IEG. Had Guernsey had an equivalent to the Compensation Act 2006 (which reversed Barker in the United Kingdom), by a 4-3 majority, the Court held that Zurich would have been liable for the full 100% loss (on account of the injury being indivisible), but with a right of recovery pro rata from other insurers and/or IEG to reflect the fact that it had only insured IEG for six of 27 years of exposure to asbestos.”

Question 24

Facts and significance of Rothwell v Chemical and insulating co 2007 regarding damage?

Answer 24

Rothwell v Chemical and insulating Co Ltd 2007:
Facts- Claimant sought to recover damages for developing pleural plaques, due to negligent exposure by his employers. The pleural plaques rarely cause any symptoms, nor other asbestos-related diseases. However, the diagnosis of pleural plaques can result in the discovery of other asbestos-related diseases, causing anxiety and depression about the possibility of eventual onset.

Significance- Held that the pleural plaques did not constitute damage in any sense as there were no symptoms associated with the change in the body. Nor was the mere risk of developing an injury actionable as damage without any psychiatric injury resulting from the narrow avoidance of physical damage. The apprehension of a particularly vulnerable person that they might develop a disease is not actionable damage.

• The plaques were merely a marker for asbestos exposure.
• Hoffmann distinguishes between ‘being worse off, physically or economically’ and then ‘simply a physical change’ such as a successful operation, or, in the present case, a neutral change which does not make the claimant worse off.
• The claim for non-negligible action runs from the point at which the actionable damage arises, not when the first damage is incurred, where it is no more than merely trivial. The case of action runs from when “the plaintiff concerned has suffered serious harm”.
• Holland J, with which Lord Hoffmann wholly agrees (pleural plaques) “I start by rejecting any notion that pleural plaques per se can found a cause of action. I am not satisfied that for forensic purposes they can be categorised as a ‘disease’ nor as an ‘impairment of physical condition’. This whole forensic exercise arises because for practical purposes there is no disease, nor is there any impairment of physical condition. If I am wrong, then, the expert evidence as to their significance points (as is in effect, conceded) to them being disregarded as ‘de minimis’. I do not think that that status can be enhanced by associating with such, the risk of onset of asbestos-related symptomatic conditions as arise not from the plaques per se but from the history starting with the initial exposure-still less do I think that that status can be altered by invoking anxiety arising out of the now articulated risks.”
• Disease/ injury are not equivalent with damage; it is not a question of whether the plaintiff has suffered what might be categorised as a disease or injury, but whether this has caused them damage. Where the disease or injury has NO EFFECT, no damage has been suffered and nothing is recoverable. The fact that there is the apprehension of future damage does not help decide whether damage has already been suffered; it is only to be taken into account once a cause of action has been founded when damage has been suffered.

Question 25

Facts and significance of Greenway v Johnson Matthey PLC 2016 regarding damage?

Answer 25

Facts- whether the claimants had suffered an actionable injury after negligent exposure to platinum salts in the workplace, who were removed from their work and losses earnings as a result. The salts had no physical effect of symptoms on the plaintiffs, but it did create increase susceptibility to an allergy following prolonged exposure. They sought to recover in tort and contract.

Significance- Due to the removal from the exposure, the onset of allergy would either remain constant or would deteriorate; there would be no progression. Wrong to deduce whether damage has been suffered with reference to resultant economic loss. Actionable damage therefore not present until further exposure provides for this. The claim was for pure economic loss and not damage for pain, suffering or loss of amenity, as there was merely no effect on the body which could constitute damage, without further exposure. The fact relating to the damage were somewhat similar to the Rothwell in that the presence of antibodies (in this case) was similar to the presence of pleural plaques in Rothwell; neither constituted any physiological harm, they were merely changes to the body which, owing to the respective circumstances and facts, were not causing damage nor getting worse.

Question 26

Facts and significance of the remoteness test derived from the Wagon Mound 1; how does it change the test in Polemis?

Answer 26

Facts overview: The Crew of a ship had carelessly allowed oil to overflow when refilling their ship, into the sea and the docks, in which other ships were also docked. The repair of other ships involved machinery which became hot, and subsequently set the oil on fire. The fire had therefore spread to the ships and they suffered substantial damage.

The decision in Polemis was criticised for imposing liability for a negligent act which results in ‘some trivial foreseeable damage’, and that the tortfeasor is liable for all subsequent damage on account of it being direct.

• It has been over-ruled that un-foreseeability is irrelevant where damage is direct.
• The judgement made reference to foreseeable and unforeseeable types of damage ‘the essential factor in determining liability is whether the damage is such a kind as the reasonable man should have foreseen”
• The decision in Wagon Mound favoured the defendant, as although it was foreseeable that the oil was flammable, it was not foreseeable that it would be able to burn on the water; the damage of the oil itself was minor but possibly still recoverable, but the damage to the ships as a result of it burning was extensive damage which was not foreseeable by the reasonable person in their position, even if the oil damage to the metal slipway was foreseeable and would have been actionable, had it been brought.
• This decision disputes the ‘direct damage’ test in Polemis because it holds that a defendant is only liable for his actions where the damage is reasonably foreseeable, not just on account of it being a direct consequence, no matter how remote or unforeseeable.
• Viscount Simonds- “Who knows or can be assumed to know all the processes of nature? But if it would be wrong that a man should be held liable for damage unpredictable by a reasonable man because it was “direct” or “natural,” equally it would be wrong that he should escape liability, however “indirect” the damage, if he foresaw or could reasonably foresee the intervening events which led to its being done.”

Following the Wagon Mound, the general test for remoteness was no longer a test based on hindsight and direct results flowing from actions; the foresight of the reasonable person in the position of the defendant at the time is the view that is taken, to decide whether the type of damage is foreseeable or not.

Question 27

Facts and significance of Smith v Leech Brain 1962? Why was it contentious with regards to its compatibility with the wagon mound, specifically regarding the pre-existing susceptibility to the eventual damage suffered.

Answer 27

Facts- plaintiff was a widow of a steel galvanizer, who had been burnt by molten metal which splashed up onto him. He was inadequately protected from the splash, and the burn caused cancer, which he died from 3 years later.

Significance and finding- Defendants liable for the death resulting from the burn, it was treated as the same type of damage.
Lord Parker CJ “The burn was a promoting agency of cancer in tissues which already had a pre-malignant condition” and so the cancer was aggravated by the burn; it may not have been caused without the burn, but he was certainly already susceptible. There was no need to consider the thin skull rule in the wagon mound, but there was here, due to the increased susceptibility (taking victim as found)
-The decision here did not challenge the perception that the defendant must take his victim as found. The rule makes the defendant more liable for damages that he has or ought to have foreseen, but the defendant still would have foreseen the type of damage, even if the extent of the damage was greater due to a pre-existing condition. The eventual damage suffered has to be treated as the same damage foreseen by the defendant to make this case reconcilable with the wagon mound. If the only damage that was said to be foreseeable was the burn, and the development of cancer was not foreseeable and only happened due to pre-existing susceptibility, then the defendant would only be liable for the damage of the burn. It is contentious whether these two are compatible; if the cancer is the same type of damage as the burn, it only determines the extent, and therefore this is a very generous understanding of remoteness in favour of the claimant.

Question 28

Facts and significance of Hughes v Lord advocate of Scotland 1963 regarding types of damage and extent of damage?

Answer 28

Facts- An 8-year old entered a manhole covering, knocking a light into the hole which caused an explosion, causing him to fall in and be severely burnt.

Significance and finding- the House of lords ruled that the workmen had breached their duty of care to the boy, and the damage was reasonably foreseeable.

• Lord Reid dismissed arguments that the boy could not recover because the damage was not a foreseeable type of damage. The main injuries suffered were burns, which were held to be reasonably foreseeable. Therefore, the type of damage was foreseen, even if it was extensive over and above what was foreseen as the most likely outcome. The cause of accident was a known source of danger, the lamp which had exploded, but it behaved “in an unpredictable way”. Only one course of action would have been required to remove the risk of the accident, and it should be guarded against.
• Even though the source of danger behaved unpredictably, which increased the extent of the damage suffered, the type of damage was nonetheless foreseeable, even if damage was more extensive than expected; the Wagon mound had clearly limited liability to foreseeable damage.
• The manner in which the damage was suffered does not need to be too specified, just the general type of damage, not necessarily the extent of it (so long as it remains of the same foreseeable sort).

Question 29

Jolley v Sutton 2000 facts and significance regarding remoteness and foresight of damage?

Answer 29

Facts- Boat left abandoned for two years on Ds land, and the council had planned to remove the boat. Claimants were two boys who, aged 13 and 14, used a car jack to repair the boat in the meantime. The boat fell off the car jack and injured the plaintiff, causing back injuries and eventual paraplegia.

Significance- House of Lords agreed that the presence of the boat would foreseeably attract children and that the type of accident and injury was foreseeable. Damages reduced by 25% for contributory negligence.

• The approach taken by Lord Hoffmann in relation to a matter of law: plaintiff shows that the injury falls within council’s duty, and scope of duty for physical injury is determined by whether the injury was reasonably foreseeable. Unless the type of injury is reasonably foreseeable, not merely that any injury is foreseeable, then it is too remote to find an action.
• “ I think that the judge’s broad description of the risk as being that children would “meddle with the boat at the risk of some physical injury” was the correct one to adopt on the facts of this case. The actual injury fell within that description and I would therefore allow the appeal.”
• “The truth is that such an approach (an approach which says that where the failure to mitigate the risk of a foreseeable injury leads to an unforeseeable injury which would also be mitigated at the same time, then the defendant is still liable; effectively it supersedes the type of damage question, which is why the risk of injury was greatly extensive), if applied without the ‘kind of damage’ limitation, would effectively do away with any separate question of remoteness based on foreseeability or scope of duty, and would simply ask whether avoidance of the damage would have required any other precautions than those already required by the need to avoid the foreseeable injury. For example, it would lead to reversal of the decision in The Wagon Mound (No 1) itself, on the basis that avoidance of the serious risk of damage by fire (unforeseeable) required no further precautions than avoidance of the trivial risk associated with fouling (foreseeable). The oil should not have been released. Since there is no obvious intention to depart from The Wagon Mound in this case, the idea that the avoidance of the wider risk would cost no greater precautions than avoidance of the lesser and more foreseeable risk should only operate together with the requirement that the damage suffered should be of a ‘foreseeable type’. In this case the foreseeable risk posed by the rotten boat was held to be that children ‘would meddle with the boat at the risk of some physical injury’. The risk is very broadly defined. Lord Hoffmann in his closing remarks invites the conclusion that this is a special approach adapted to known sources of hazard to children, since in such a case all manner of accidents are to be expected.”

Question 30

Johns v Knightley facts and significance regarding remoteness?

Answer 30

Facts- D’s negligent driving meant his car overturned in a tunnel. The senior officer instructed other officers to close the entrance to the tunnel as he had forgotten to do so. They drove through the tunnel round a blind bend on the wrong side of the road and was seriously injured in a head-on collision, whilst going to the close the tunnel. It was contended whether Johns was liable for his negligent driving in flipping the car (causing the police to attend the scene), or if the actions of the other defendants (the senior officer) constituted a novus actus interveniens.

Significance and finding- The senior officers’ negligence in failing to close the tunnel broke the chain of causation, and the claimant’s decision to go through the tunnel on the wrong side of the road was not negligent. Johns not liable despite flipping his car, but senior officer was. It was foreseeable that that the police officers would attend the scene at the tunnel, it was not foreseeable that the senior officer would send the others the wrong way down the tunnel, breaking the chain of causation from John’s negligent driving to the head-on collision. The senior officer was liable to the claimant who had suffered the injury from the head-on collision, rather than Johns being liable

Question 31

What is the general position on negligent claimants who cause further damage, ie the senior officer in Johns v Knightley?
What sort of threshold is there?

Answer 31

Cases where a third party has attempted to mitigate the negligence of a defendant but had inadvertently caused further damage. Generally, these cases do not amount to an intervening act, as it is generally foreseeable and a ‘natural and probable cause’ of the negligently created situation. The original defendant is likely to remain liable, even where the rescuer is unusually careless; they are usually acting in the heat of the moment, so are likely to display a lower standard of care than normal, and lower than that expected of the original defendant.

• It is not sufficient to merely show fault, carelessness, or error, but it must reach a certain high threshold of further negligence, such as the senior officer in Knightley.
• The foreseeability approach was somewhat superseded by ‘ulterior harm’ (G Williams) which reverted back to the more factual causal approach rather than remoteness to decide the case, as it was, in effect, independent of the actions of the initial negligent driver.
• It is accepted that there are general risks associated with rescuers for which they are unlikely to be held liable for, even for negligent medical care

Question 32

Facts and significance of McKew v Holland Hannen 1969 regarding remoteness and intervening acts?

Answer 32

Facts- the defendant had caused the injury to the leg of the claimant, which meant the leg was liable to giving way underneath him and causing further injury. The claimant, whilst going down some stairs without a handrail, jumped the last 10 steps as his leg gave way under him, and he fractured his ankle and sustained a disability. Contended whether this act of the claimant broke the chain of causation

Significance/ finding- The court held that the claimant had acted unreasonably and broke the chain of causation. His unreasonable risk was not foreseen, and the defendant could not be liable for the subsequent damage. Lord Reid made it clear that an injured person should act more carefully during his recovery and taking unreasonable risks would preclude liability on the part of the original tortfeasor. Reconciling this with later cases, it may be argued that it would be unfair to impose liability on the defendant for this subsequent injury, when the claimant had acted in such an unreasonable and careless manner, knowing he was susceptible to further injury.
-Had he acted reasonably and still been injured, it would be attributed to the original defendant. Unreasonably conduct= breaks chain of causation. Also portrayed in a way which said that it was not a natural and probable cause of the injury, but this uses language of the Polemis which was overrules by the Wagon Mound. Even if it was foreseeable that the claimant would suffer further injury, this was irrelevant when he had unreasonably brought this upon himself, without due care to his own susceptibility to injury.

Question 33

Facts and significance of Corr v IBC Vehicles 2008 regarding remoteness?
How does Lord Scott reconcile this with the decision in Page v Smith?

Answer 33

Facts- The accident at work had severed the deceased ear, causing a series of psychological and physiological issues, which led to his eventual suicide. It was contended whether the suicide was attributable to the breach of care at the workplace.

Significance- The Lords held that the workplace was negligent and subsequently liable for the suicide. Despite the choice to take his own life, Lord Hoffmann held that it was not a free and voluntary choice to do so, because of the effects on his mind from the injury, therefore not breaking the chain of causation.

• Egg shell rule also applies, which was extended to psychiatric harm in Page v Smith, even if he was more susceptible than the average person.
• Lord Bingham: “The rationale of the principle that a novus actus interveniens breaks the chain of causation is fairness. It is not fair to hold a tortfeasor liable, however gross his breach of duty may be, for damage caused to the claimant not by the tortfeasor’s breach of duty but by some independent, supervening cause (which may or may not be tortious) for which the tortfeasor is not responsible. This is not the less so where the independent, supervening cause is a voluntary, informed decision taken by the victim as an adult of sound mind making and giving effect to a personal decision about his own future… .
  16. In the present case Mr Corr’s suicide was not a voluntary, informed decision taken by him as an adult of sound mind making and giving effect to a personal decision about his future. It was the response of a man suffering from a severely depressive illness which impaired his capacity to make reasoned and informed judgments about his future, such illness being, as is accepted, a consequence of the employer’s tort. It is in no way unfair to hold the employer responsible for this dire consequence of its breach of duty, although it could well be thought unfair to the victim not to do so.”
• Lord Scott “Page v Smith … extended the rule as stated in Smith v Leech Brain so as to include psychiatric injury. If a duty of care to avoid physical injury is broken and psychiatric injury is thereby caused, whether with or without any physical injury being caused, the negligent defendant must accept liability for the psychiatric injury. He must take his victim as he finds him. That this is so is a consequence of the House’s decision in Page v Smith. That decision has been the subject of some criticism but not in the present case. If Mr Corr’s psychiatric damage caused by the accident at work is damage for which his employers must accept liability, it is difficult to see on what basis they could escape liability for additional injury, self-inflicted but attributable to his psychiatric condition.”

Question 34

Facts and significance of Page v Smith 1996? What is the extent of the rule which it established?

Answer 34

Facts- plaintiff suffered ME as a result of a minor car crash.

Significance- test applied= “could the defendant reasonably foresee that his conduct would expose the plaintiff to the risk of personal injury, psychological or physical?” If yes, irrelevant to what extent the damage was foreseeable because of application of the egg-shell skull rule. The defendant was found liable (matches Hughes v Lord Advocate principle)

• They refuse to define the relevant kind of damage ie the manner in which it came about, but also put physical and psychiatric injury together.
• The dissenters argued that the type of damage had to be foreseeable ie psychological or physical or both, not merely that some personal injury was foreseeable. They found that nervous shock was not foreseeable in the circumstances. They said that it does not follow that where there is physical injury, mental injury is also foreseeable.
• The rule of Page v Smith was restricted to cases where the complainant suffers psychiatric injury as an immediate result of the incident and as a PRIMARY VICTIM- a mere endangerment where someone subsequently worries about a future event (resulting in psychiatric injury) does not suffice.
• If Page was a secondary victim, it would have to be shown that nervous shock/ PSYCHIATRIC INJURY was a foreseeable injury consequence, not merely any personal injury.

Question 35

What are the two main reasons for the decision to narrow the scope of remoteness in cases of concurrent tortious and contractual liability?

Answer 35

The reasons given by their Lordships were three-fold. First, in concurrent liability cases the “foundation” of both the contractual and tortious duties is the same: voluntary assumption of responsibility. It logically follows that the extent of the damage for which a Defendant is liable should be determined on the same basis in relation to both (at [157], per Roth J).

Second, the rationale for the narrower remoteness test in contract is that the parties have the opportunity to draw special circumstances to one another’s attention at the time the contract is formed. The same is true, however, in relation to the tortious duty when concurrent duties are owed, “particularly given that the tortious duty arises out of the same assumption of responsibility as exists under the contract” (at [80], per Floyd LJ).

Question 36

Facts of Wellesley partners LLP v Withers?

Answer 36

Wellesley Partners was an executive headhunting firm that specialised in the investment banking sector. In 2008 Wellesley retained Withers to draft a limited liability partnership agreement following the admission of new partners to the business. These included a Bahraini bank, Addax, which had agreed to invest $5 million in exchange for a 25% stake in the partnership. At the time, Wellesley was wholly owned by a Mr Channing, who was described by the court as a “star in his particular firmament”. The parties had agreed that Addax would have an option to withdraw half its capital contribution. As the court subsequently found, Mr Channing’s instructions were that the option should only be exercisable 42 months after the date of LLP agreement. The agreement did not reflect these instructions and provided that the option was exercisable at any time within the first 41 months. Addax exercised its option twelve months into the agreement and Wellesley argued that the lost capital had prevented it from expanding its operation in New York. One of the opportunities Wellesley claimed to have lost was a lucrative contract with Nomura, which had £6 million to spend on recruitment. This opportunity had arisen through Mr Channing’s connections and was a very valuable one compared to the other opportunities alleged to have been lost.