Negligence - Damage Flashcards
(42 cards)
Causation
P must show that harm suffered was as a matter of fact caused by D’s breach of duty
“But For”
If “but for” the D’s neg conduct damage would not have happened then neg is cause of damage
Remoteness
Liability can still be avoided if D can show damage suffered was too remote a consequence of the breach of duty
Barnett v Chelsea and Kensington Hospital Management Committee (1969)
Established the But For Test
P’s husband vomiting after drinking tea. Nurse consulted dr by phone, told to send him home. P died of arsenic poisoning. Dr was neg. But had Dr’s BoD caused the death?
Held: Claim failed. Even if deceased had been examined and treated with proper care, would still have died. D’s BoD not cause.
Robinson v Post Office (1974)
P leg injury caused by D’s neg. Suffered reaction to anti-tetanus vaccination administered by Dr who omitted to test for allergy. D held liable for this injury, too. Dr not liable for omitting test, vaccine was urgently needed, test wouldn’t have revealed allergy in time.
Bolitho v City and Hackney Health Auth (1997)
P (2yo), died. Dr was in BoD to child. Issue was causation. Did BoD cause P’s injuries? Depends what dr would have done if had been present. Dr said she would not have intubated so cardiac arrest would have happened anyway. Med experts called to determine whether prof standard of care requires any Dr who attended the P to intubate.
Held: Action failed on causation. If Dr has attended, failure to intubate would not have been neg.
Chester v Ashar (2005)
C suffered paralysis after elective surgery, claimed Dr neg. Op have not been neg perf, but C argued had not been given adequate warning of 1-2% risk of paralysis. May not have consented.
Held: sufficient causal link between failure to warn and damage sustained by C. Link not broken by poss that C might have consented anyway
Lord Steyn: “cannot be said to have given informed consent”
McGhee v National Coal Board (1973)
D failed to provide washing facilities, P cycled home caked in brick dust. Dermatitis. Med evidence failed to show disease would have been avoided, but evidence showed shower would reduce risk.
Held: D liable on ground sufficient for P to show D’s BoD made risk more probable even if uncertain whether was actual cause
Wilsher v Essex Health Auth (1988)
Preme baby neg given too much oxygen. P alleged was cause of blindness. But were up to 5 poss causes. HoL held burden on P to est that D’s BoD was at least mat contributory cause of harm.
Bonnington Castings v Wardlaw (1956)
Exposed to noxious dust, disease. Some exposer was from non-neg source. But For Test couldn’t be satisfied.
Held: HoL causation could be est, emp’s act made mat contrib to harm
Hotson v East Berks Health (1987)
Fell from tree, hip injury. 75% chance of perm disability. D’s neg misdiagnosed, left untreated for 5 days. 1st inst: delayed treatment deprived P of 25% chance of recovery.
Held: HoL reverse. No basis in tort for loss of a chance. If P could prove on balance of prob that would have recovered w/proper treatment, entitled to full compensation. Otherwise entitled to nothing.
Gregg v Scott (2005)
HoL - liability for loss of a chance or a more favourable outcome should not be introduced into personal injury claims
Allied Maples Group v Simmons & Simmons (1995)
CoA confirmed P can succeed if real and substantial rather than speculative chance can be shown
Bailey v MoD (2008)
C weak due to neg lack of post-op care. BoD not disputed, issue was causation. CoA held enough to patient to establish that, on balance of prob, lack of post-op care made material contribution to overall weakness of her condition and resulting brain damage.
Fairchild v Glenhaven Funeral Services (2002)
Asbestor-induced mesothelioma. Couldn’t be proved which emp’s BoD was cause. Held: on balance of probability each D’s wrong doing had increased the risk of C contracting disease. Trated as proof that each D had mat contributed to it. McGhee applied. Policy consideration: injustice to deny remedy
Several Liability
D only liable up to the extent of the damage he caused
Joint Liability
C can sue one D for the whole damage leaving the D to seek compensation from other Ds
Baker v Corus UK (2006)
3 sep exposures to asbestos, 1 of which was caused by C himself. Held: Partially reversed Fairchild. Liability was several rather than joint. S could still be liable w/out proof of causation, but liability could only extend tot eh relative proportion to which he contributed to the chance of the outcome. 20% discount for contrib neg.
Seen as victory for insurers, strong resistance from trade unions and victim support groups
Compensation Act 2006 (s.3)
In response to adverse publicity around Cs who were sick and dying being required to spend their remaining time trying to establish relative extent of liability of former emps.
Causation est by showing that exposure made “mat contrib to the risk”
Sienkiewicz v Grief Ltd (2009)
Only 1 emp here, but woman exposed in environment of town she lived in. 1st ins: since one emp, C should have to prove causation on normal balance of prob test, found she failed to succeed.
Held: CoA allowed appeal. C could establish causation by showing that workplace exposure to asbestos had mat increased the risk of the employee developing disease (Comp Act 2006 3(1))
Baker v Willoughby (1970)
Road accident caused by D’s neg. P suffered leg injury. Pre-trial, P victim of robbery, shot in same leg and had to be amputated. D admitted neg, arg his resp ended when P shot and so all losses after date of shooting flowed from robbery.
Held: Rejected D’s arg as produced manifest injustice. Remained liable for full extent of P’s damage.
Jobing v Associated Dairies (1981)
D liable when P sustained back injury, -50% earning capacity. Prior to neg action, disease of spine rendered P unfit to work. 2nd event brought about by natural causes. HoL held D only liable for reduced capacity up to time of onset of disease.
Novus Actus Interveniens
Where an intervening act has caused the damage, it may break the causal link between D’s BoD and the damage
McKew v Holland & Hannen & Cubitts (1969)
D’s neg, P suffered leg injury, occasionally lost control of it. Attempted to descend stairs w/no handrail. Leg gave way, he fell and sustained further injuries.
Held: D not liable for injury. P’s act brake CoC. Unreasonable conduct.
