Negligence Evaluation - Damage Flashcards
(9 cards)
What do you do for the AO1 of a damage essay, with cases?
Run through legal causation - Wagon Mound, Smith vs Leech Brain
Run through factual causation - Barnett vs Chelsea Hospital Committee
Is the thin skull test fair and what is the case for it?
Fair for claimant who receives compensation but unfair on defendant who had no knowledge that that type of damage would occur due to the pre-existing condition - Balance of conflicting interests
Smith vs Leech Brain
What are the cases and the Act for the asbestos/mesothelioma situation?
Holtby vs Brigham & Cowan
Fairchild vs Glenhaven Funeral Services
Barker vs Corus
Compensation Act 2006
What is the POL from Holtby vs Brigham & Cowan?
Fair on both claimant and defendant as the claimant receives full compensation, and the employers only pay for their proportion of the damage. They will also be covered by insurances, and they have taken premiums to cover it over the years.
What is the POL from Fairchild vs Glenhaven Funeral Services
Mesothelioma caused by a single fibre of asbestos entering the lungs and can take up to 30 years to present itself, meaning it is very difficult to prove. In Fairchild many companies didn’t exist, so claimants didn’t receive compensation which is an injustice, and it is very hard to prove what company caused the exposure that resulted in mesothelioma, so it is a negative. However, it was ruled that the claimants could prove causation on the ‘balance of probabilities’ which is good to limit the injustice and provide injured claimants with compensation.
What is the POL from Barker vs Corus?
House of Lords agreed to apportion damages based on the time each company had exposed the claimant to asbestos, so unless they sued all the companies (which is costly) they would lose a % of their compensation/damages which is unfair for the claimant
What was stated in the Compensation Act 2006?
Said a person contracting mesothelioma, the employer can be held fully liable, and the victim can sue 1 employer for the full amount. The company can recover a proportion from the other companies. This is the current law which is good because then the claimant can receive 100% of their damages without the large legal fees of multiple court cases and it is fair on the defendant as they can recover some of the damages from the other companies involved. Insurers will generally pay out and they take the premiums.
What is the case and point for an intervening act?
Spencer vs Wincanton - Said that unwise behaviour doesn’t break the chain of causation only if the result is fair. The employers had accepted the liability for the amputated leg but not for the new injury. The Court of Appeal said that what happened to Mr Spencer was a foreseeable result of the defendant’s negligence although the damages were reduced by ⅓ due to contributory negligence. This is the new/current law and is bad because it could potentially lead to many claims for the same individual act that could go on for a very long time. It also places too great a burden on the defendant.
What is the possible reform for damage?
Abolish the thin skull rule to protect defendant more - unlikely as it would still give rise to a BCI but just shifted the other way
Reverse the decision in Spencer vs Wincanton to reduce the burden on D and to limit the number of claims for a single injury, however, it would restrict the compensation available for the claimant when they are constantly impacted by a life changing injury
