Negligence II: Damage, Causation & Remoteness Flashcards
(17 cards)
What is recoverable as damage in negligence?
- Hunter v Canary Wharf: Must be damage in the sense of a physical change in property
- Rothwell v Chemical & Insulating: Suffering a risk of damage is not damage. A condition that was sympotmless and had no affect on the claimants health could not be recoverable
What are the rules on a ‘loss of chance’ being recoverable as damage in negligence?
MEDICAL / PHYSICAL CONTEXT:
* Decisions in Hoston v East Berkshire HA and Gregg v Scott suggest that a loss of chance with regards to a medical condition will not be applicable where the chance is lower than 50% and therefore be impossible to show that the doctor’s negligence caused the injury
FINANCIAL CONTEXT
* Perry v Raleys Solicitors: The question of whether the client would have been better off depends on what the client would have done upon receipt of competent advice, proved on the balance of probabilities
* Allied Maples Group Ltd v Simmons & Simmons: Where loss depended on the hypothetical action of a third party, he will succeed if he can show there is a real or substantial chance that the third party would have acted to confer the benefit on C
What is the general test of causation in negligence?
Claimant must show ‘but for’ the defendants act, they would not have suffered loss or injury (Barnett v Chelsea Hospital)
How does the but for test operate differently in cases of divisible and non-divisible injury?
DIVISIBLE INJURY
Where it is possible to attribute different parts of the injury to different causes. Causation will be established if defendant’s negligent caused a ‘material contribution to the injury’ (Bonnington Castings v Wardlaw)
- Holtby v Brigham Cowan: Proportional damage is to be awarded based on the extent of material contribution to injury
INDIVISIBLE INJURY
There is no way to divide the injury, cause can only be attributed to one person. Courts have still said that material contribution could apply:
- Bailey v Ministry of Defence: Brain injury, caused due to patients weakness and negligent treatment in hospital, was actionable. But for test modified because it could not be satisfied
- Williams v Bermuda Hospital: Where actions contributed to the incremental development of a physical condition that led to indivisible injury
- Holmes v Poeton Holdings: Bonnington can apply to indivisible injury, rejected the idea from Williams that material contribution means but for is satisfied
How is causation different where there are multiple causes of injury?
Baker v Willoughby: A supervening event that occurs between the time of the tort and trial which worsens the existing damage / injury does not reduce the amount of compensation
Jobling v Associated Dairies: When the supervening event is non-tortious and a vicissitude of life, there will be a reduction
What is the rule where there is causal / scientific uncertainty?
Fairchild v Glenhaven Funeral Services: In cases of scientific uncertainty, a material increase in the risk of injury satifies causation. Impossible for the claimant to prove on the balance of probabilities that the defendant had caused injury
- Adressing Wilsher v Essex HA, where multiple causes could have caused death, court said for fairchild to apply it must be the same agent
- Baker v Corus: This applies were possible causes are both tortious and non-tortious (e.g. fault of the defendant and claimants fault) as long as both agents could cause damage in the same way and only differed in some causally irrelevant aspect
Does Fairchild only apply to one type of medical condition?
- Sienkiewicz v Grief (UK) Ltd: Seemed to suggest the Fairchild exception was confined to the special case of disease in fairchild, mesothelioma, because they are in a class of their own
- International Energy Group v Zuirch Energy Insurnace: Recognised the exception is not perculiar to such cases. In cases not of mesothelioma, damages can still be apportioned
How should damages be decided in cases where the Fairchild exception applies?
Barker v Corus UK Ltd
Damages should be apportioned among defendants in proportion to their relative contribution to risk of injury, this involves quantifying the risk contributed by the particular defendant
Reversed in cases of mesothelioma by S3 Compensation Act 2006, but applies to others per Heneghan v Manchester Dry Docks
How might a novus actus interveniens by the claimant break the chain of legal causation?
Although the defendants breach of duty was a cause, some intervening conduct was the cause of damage instead
McKew v Holland and Hannen: An unreasonable act by the victim that results in futher injury may break the chain of causation
Spencer v Wincanton Holdings: Victims own contribution to injury in negligence is not an intervening act unless highly unreasonable
Corr v IBC Vehicles: An act not taken fully voluntarily and consciously by the victim does not break the chain of causation, suicide is not a break when not completely voluntarily
How might an act of a third party break the chain of the causation?
Knightley v Johns: In regard to third parties, negligent conduct and positive acts are more likely to break the chain of causation than innocent mistakes or omissions
What is meant by remoteness?
The Wagon Mound (No 1)
D will not be liable where the injury is too remote (i.e. too far removed) from their original act. Defendant is not liable if they could not have reasonably forseen that damage would occur
What does Hughes v Lord Advocate tell us about remoteness?
It does not matter if the sequence of events that happen are unusual, what matters is whether the type of injury is foreseeable or not
* This point was confirmed in Jolley v Sutton LBC, precise manner and extent of injury do not always need to be reasonably foreseeable
What is the thin skull rule?
Smith v Leech Brain & Co
A particular weakness of the victim that an ordinary person would not have cannot be used as a defence to negligence even if it means injury was not reasonably foreseeable
How is remoteness judged differently in Hedley Byrne assumption cases?
Wellesley Partners v Withers LLP
In these cases the rule on remoteness should be that in contract, i.e. Hadley v Baxendale. Therefore it must be foreseeable by a reasonable person having knowledge of the ordinary circumstances or who has knowledge of special circumstances communicated to the defendant
What has the supreme court recently said about remoteness?
Armstead v Royal & Sun Alliance Insurance Company
In order for a contractual liability to be reasonably foreseeable loss, it is necessary for the contractual liability to reflect the reasonable loss of use of the hire company. Policy reason is to ensure that an excessive burden of liability does not fall on the defendant
What does the Social Action, Heroism and Responsibility Act 2015 tell us?
That when considering a claim for negligence, the court must consider whether the person was fulfilling one of the criteria and consider this in the standard of care
What is the SAAMCO principle?
Banque Bruxelles Lambert v Eagle Star Insurance: Where information is given to enable the claimant to decide on a course of action, the extent of negligence liability was to be ascertained by reference to the to the consequence of the information given being inaccurate, not what position the claimant would have been in had the information been accurate. This only applies to provides of information, not advisors who are liable for all
Khan v Meadows
1. Is the harm actionable?
2. Did the law impose a duty on D?
3. Did D commit a breach of that duty?
4. Is the loss the consequence of this breach?
5. Is there sufficient connection between a particular element of harm and the subject matter of the duty?
6. Is an element of the harm irrecoverable because it is too remote, because there is a different effective cause, because the claimant has mitigated his loss or has failed to avoid loss that they could reasonably be expected to avoid?
Apply when a party provides another with information, is the loss a consequence of this information?
