Tort of Negligence: Causation and Remoteness Flashcards

Question

Material contribution to risk (of injury already suffered by C)

Answer 1

• When it is proved, on a balance of probabilities, that D’s negligence has materially increased the risk of Csuffering an injury, then D is liable if C [actually] suffers the injury notwithstanding that D is not responsible for other factors which have materially contributed to the injury. A breach of duty which increases the risk of damage is enough for causation! Epidemiological evidence, even if accurate and reliable, will NOT be conclusive on the issues of causation!

Answer 2

ϖ NCB told C to clean out brick kilns and C was exposed to brick dust, causing him to contract dermatitis. Instead of going to shower, C cycled home and his sweat reacted with the dust. This is because D negligently failed to provide C with shower (breach of duty). Medical evidence shows that it is unknown whether it is the exposure or the sweat reaction which caused the disease, but both explanations are possible and that the sweat reaction had added materially to the risk that C might develop dermatitis. The ‘but-for; test cannot yield any definitive answer due to the lack of evidence. Held: C only had to demonstrate that the dust attributable to the breach of duty materially increased the risk of him contract dermatitis. Lord Reid: there is no evidence how the dermatitis begins. In cases like this we must take a broader view of causation. Lord Salmon: as a rule, when it is proved, on a balance of probabilities, that an employer has been negligent and that his negligence has materially increased the risk of his employee contracting an industrial disease, then he is liable in damages to that employee if he contracts the disease notwithstanding that the employer is not responsible for other factors which have materially contributed to the disease. Commentary: old test or new test? The new test argument is that the test is ‘material contribution to risk’ Stapleton: the courts are allowing C to jump the evidentiary gap, otherwise D will go scot-free and this will offend the notion of distributive justice! The normative ground for the rule, as recognised by the courts, is that there must be an exception to the orthodox but-for causation! Here, artificial apportionment was not argued, and hence D was liable in full by default!

Answer 3

ϖ It was common knowledge in the construction industry that asbestos inhalers may cause lung diseases and cancer. Asbestos are good insulators of heat and are usually lagged around hot pipes. During employment by several different employers, C was exposed to asbestos dust. Mesothelioma can be caused by a single asbestos fibre or an accumulation of them. C suffered from mesothelioma but the doctors’ evidence could not support but-for causation – it could well have been a cancer fibre passed onto him by X, and it could not be said that the exposure was a material contribution to the disease. Yet the doctor did know that the more likely C was exposed to asbestos, the more likely C would contract the disease. C was unable to demonstrate, and medical science was unable to detect, which employer exposed each of them to the one fatal fibre. HL Held (4:1): If C could demonstrate that one employer had materially increased the risk of contracting mesothelioma they were entitled to claim full compensation from that one employer.

Answer 4

1) Issue: If (1) C was employed at different times and for differing periods by both A and B, and (2) A and B were both subject to a duty to take reasonable care or to take all practicable measures to prevent C inhaling asbestos dust because of the known risk that asbestos dust (if inhaled) might cause a mesothelioma, and (3) both A and B were in breach of that duty in relation to C during the periods of C's employment by each of them with the result that during both periods C inhaled excessive quantities of asbestos dust, and (4) C is found to be suffering from a mesothelioma, and (5) any cause of C's mesothelioma other than the inhalation of asbestos dust at work can be effectively discounted, but (6) C cannot (because of the current limits of human science) prove, on the balance of probabilities, that his mesothelioma was the result of his inhaling asbestos dust during his employment by A or during his employment by B or during his employment by A and B taken together, is C entitled to recover damages against either A or B or against both A and B? It is accepted that the risk of developing a mesothelioma increases in proportion to the quantity of asbestos dust and fibres inhaled: the greater the quantity of dust and fibre inhaled, the greater the risk: but C could have inhaled a single fibre giving rise to his condition during employment by A, or by B, or by both A and B together. We don’t know. 2) Overall principle of tort law: The overall object of tort law is to define cases in which the law may justly hold one party liable to compensate another. But should we deny C of any remedies outright due to the evidential uncertainties? 3) *****Conflicting policy objectives: It can properly be said to be unjust to impose liability on a party who has not been shown, even on a balance of probabilities, to have caused the damage complained of. On the other hand, there is a strong policy argument in favour of compensating those who have suffered grave harm, at the expense of their employers who owed them a duty to protect them against that very harm and failed to do so. Such injustice as may be involved in imposing liability on a duty-breaking employer in these circumstances is heavily outweighed by the injustice of denying redress to a victim!!! Giving immunity to D would reflect no credit on the law 4) Answer to issue: C is entitled to recover against BOTH A and B for any sum less than the full compensation to which C is entitled, although A and B could seek contribution against each other. The conclusion is directed only to cases in which each condition (1-6) is satisfied!

Answer 5

``` 1) each condition (1-6) is satisfied! Rule: D breached its duty for not providing protection (e.g. masks).McGhee is a new test. A radical interpretation suggests that it the risk test, not the injury test. A breach of duty which increases the risk of damage is enough for causation. It does not have to necessarily increase the injury! SO the question is whether D materially increased the risk that C would contract the lung disease. If yes, D is liable! Hence, all the employers are liable as they all materially increased the risk. Commentary: the selection of the causation rules is determined by policy reasons! But what are the policy reasons? The courts are silent on this. This makes it difficult to know when Fairchild should be applied. It is argued that the exposure weakens C’s immune system, making C more susceptible to cancer fibres too! But this approach can make innocent people liable. So if C gets exposure during employment by ABCD, all of them are jointly liable, when it could have been just one of them which caused injury! However, C may choose who to sue. If C sues A, A may have a contributory claim against other tortfeasor BCD, determined by the Civil Liabilities Contribution Act 1978. ZCT: note that these ‘material contribution to risk’ cases differ from Hotson as C has already suffered from physical injury. It is not loss of chance we are talking about  see Lord Bingham’s 4th requirement! Fleming: Fairchild is a case of ‘indeterminate defendant’ – when 2 or more Ds have acted tortiously towards C who suffer injury as a result but cannot determine whose tort was the cause. The Fairchild approach has been used in car crash cases or drugs cases such as Fitzgerald v Lane and Sindell v Abbot Laboratories. It seems to say that C’s equities have overwhelmed D’s! Lord Hoffmann (extra-judicially): regrets the unprincipled exception based on a faulty equiparation with the Bonnington type of cases ```

Answer 6

ϖ (proportionate damages) C contracted mesothelioma as a result of exposure to asbestos. He worked for D between 1960 and 68. He worked for a different employer for 6 weeks where he was also exposed to asbestos. After 1968 he became self-employed as a plasterer for 20 years. Whilst self-employed he was also exposed to asbestos on three occasions. Medical evidence shows that one of possible reasons of the disease is the asbestos exposure during C’s self-employment. C cannot sue himself in tort. C argued that D should be liable for increasing the risk of the harm (under Fairchild). D was wound up 20 years before C brought the claim. D argued it is not fair. D also argued that his exposure to asbestos whilst self-employed prevented him from being able to rely on the causation principle established in Fairchild whereby C is able to demonstrate that the defendant's breach of duty materially increased the risk of contracting the disease. HL Held: Fairchild was applied and C was thus successful in establishing causation. His damages would be reduced under the Law Reform (Contributory Negligence) Act 1945 to reflect the periods where he exposed himself to risk during the course of his self-employment.

Answer 7

1) Limits of Fairchild: Lord Bingham's formulation requires that all possible sources of asbestos should have involved breaches of duty to C; Lord Rodger allowed for a non-tortious exposure by D who was also responsible for a tortious exposure but reserved his position on any other non-tortious exposure. The most that can be said of the others is that they did not formulate the issue in terms which excluded the possibility of liability when there had been non-tortious exposures. Fairchild should be limited to cases involving ‘causal agents or mechanisms operating in substantially the same way. 2) ***The purpose of the Fairchild exception: the purpose of the Fairchild exception is to provide a cause of action against a defendant who has materially increased the risk that the claimant will suffer damage and may have caused that damage, but cannot be proved to have done so because it is impossible to show, on a balance of probability, that some other exposure to the same risk may not have caused it instead. Hence, for this purpose, it should be irrelevant whether the other exposure was tortious or non-tortious, by natural causes or human agency or by the claimant himself! 3) Quantification: The present case involves uncertainty as to the cause of a known outcome, namely, the mesothelioma. But in principle I can see no reason why the courts cannot quantify the chances of X having been the cause of Y just as well as the chance of Y being the outcome of X. 4) Fairness and apportionment: In the end, however, the important question is whether such a characterisation would be fair. The Fairchild exception was created because the alternative of leaving the claimant with no remedy was thought to be unfair. But does fairness require that he should recover in full from any defendant liable under the exception? The attribution of liability according to the relative degree of contribution to the chance of the disease being contracted would smooth the roughness of the justice which a rule of joint and several liability creates. The defendant was a wrongdoer, it is true, and should not be allowed to escape liability altogether, but he should not be liable for more than the damage which he caused and, since this is a case in which science can deal only in probabilities, the law should accept that position and attribute liability according to probabilities

Answer 8

liable or non-liable. To award proportionate damages would in effect be allowing recovery for the loss of chance which is rejected in Gregg v Scott. The new analysis which the House is adopting will tend to maximise the inconsistencies in the law by turning the Fairchild exception into an enclave where a number of rules apply which have been rejected for use elsewhere in the law of personal injuries

Answer 9

hence only proportionate liability is imposed on D (liable for the proportionate share of the loss), NOT the full liability. ZCT: if it is uncertain who caused the loss, how can you quantify the loss? This seems like pure legal fiction! Mitchell: Barker makes it hard to determine whether Fairchild is applied. In Wilshire and Hotson, the exceptional test was NOT applied! In joint liability, C may sue anyone of D. Parliament overruled the proportionality analysis in Barker after 3 weeks – MPs argue that this is unfair to the victim that he has to shoulder the burden should D go insolvent, since C can only recover the proportionate share. Laleng: o Lord Hoffmann’s treatment of the limit of Fairchild is problematic: in a lung cancer case where a claimant had been exposed to asbestos dust and cigarette smoke, it is difficult to understand why this should be the case given the lack of knowledge about causal mechanisms. The courts face similar rocks of uncertainties in other cases too!

Answer 10

3 Mesothelioma (1) This section applies where— (a) a person (“the responsible person”) has negligently or in breach of statutory duty caused or permitted another person (“the victim”) to be exposed to asbestos, (b) the victim has contracted mesothelioma as a result of exposure to asbestos, (c) because of the nature of mesothelioma and the state of medical science, it is not possible to determine with certainty whether it was the exposure mentioned in paragraph (a) or another exposure which caused the victim to become ill, and (d) the responsible person is liable in tort, by virtue of the exposure mentioned in paragraph (a), in connection with damage caused to the victim by the disease (whether by reason of having materially increased a risk or for any other reason). (2) The responsible person shall be liable— (a) in respect of the whole of the damage caused to the victim by the disease (irrespective of whether the victim was also exposed to asbestos— (i) other than by the responsible person, whether or not in circumstances in which another person has liability in tort, or (ii) by the responsible person in circumstances in which he has no liability in tort), and (b) jointly and severally with any other responsible person. Mitchell: this is awful legislation -it only applies to mesothelioma! What if C did not suffer from this? If C did not suffer mesothelioma, then Barker still applies! This is crap.

Answer 11

ϖ material contribution; epidemiological evidence available; restrictive and Janus-faced) C was exposed to asbestos fibres from D’s tortious negligence and environmental non-tortious exposure, and contracted mesothelioma and died. Although D had been in breach of either its statutory or common law duty to C throughout her employment, that tortious exposure was modest compared with her environmental exposure and had increased the risk of her contracting the disease by only 18%. D argued that the orthodox ‘but-for’ test should be applied, not McGhee or Fairchild because the epidemiological evidence is clear that the non-tortious exposure is the more potent cause! Also, D argued that there must be evidence that its negligence had doubled the risk over and above the risk from the non-tortious environmental exposure to become ‘material’ contribution to risk (i.e. only if that is the case will D’s tortious exposure be a more significant factor than the environmental exposure). HL Held: An increase of 18% is enough for material contribution to risk. A level above the minimal level is enough! The double-the-risk test is rejected and the epidemiological evidence was not used to decide on causation! The ‘rock of uncertainty’ means that C is simply unable to show whether the inhalation of any one or more of D’s fibres in fact caused or materially contributed to the contracting of the disease, regardless of the respective numerical contribution of each source to the overall fibre burden. To require proof of “but for” causation in single employer cases would place an insuperable and unwarranted obstruction in the claimant's way. Hence, the Fairchild exception applies.

Answer 12

1) Double-the-risk test: ¬ Simultaneous cumulative causation: it should NOT apply. 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. ¬ Consecutive cumulative causation: it should APPLY! The position depends on which exposure came first in time.Where it was the tortious exposure, it is axiomatic that this will have contributed to causing the disease, even if it is not the sole cause. Where the innocent exposure came first, there may be an issue as to whether this was sufficient to trigger the disease or whether the subsequent, tortious, exposure contributed to the cause ¬ Competing alternative causation (Hotson): it should APPLY! Epidemiological evidence may be used to show that one of the causes was more than twice as likely as all the others put together to have caused the injury. ¬ ****Where there is statistical evidence on causation: was there a need to apply Fairchild/Barker rule epidemiological evidence enabled us to use statistics to determine causation on the balance of probability? a) Evidence not reliable: In the case of mesothelioma, epidemiological evidence alone has not been considered by the courts to be an adequate basis for making findings of causation: that so long as medical science is unable to demonstrate, as a matter of fact, the aetiology of mesothelioma, data relating incidence to exposure is not a satisfactory basis for making findings of causation. The reliability of the evidence is a concern. b) Even if evidence is accurate: even if the evidence is accurate, there is still justification for applying Fairchild! Imagine 4 Ds each of whom had contributed 25% to the victim's exposure so that there was a 25% likelihood in the case of each D that he had caused the disease. The considerations of fairness that had moved the House in Fairchild would justify holding each of the defendants liable, notwithstanding the impossibility of proving causation on balance of probability! c) Conclusion: it is inappropriate to decide causation on epidemiological data as to exposure. So far as concerns apportionment between tortfeasors jointly liable for causing mesothelioma it is likely to be necessary to use epidemiological evidence faute de mieux 2) Material contribution to risk: connoted a degree which was more than minimal and it was for the judge on the facts of the particular case to determine whether the defendant's breach had materially increased the risk. Here there was material contribution and D is liable! The requirement is NOT ‘double the risk’, but just that the contribution is not de minimis! 3) Causation test: So long as medical science was unable to attribute causation in mesothelioma cases there was no place for the conventional test of causation that, on the balance of probabilities, it was more likely than not that the defendant's breach had materially contributed to the victim's condition. Hence, the “doubles the risk” test could not be applied in such cases 4) S.3 CA 2006: s.3(1) does NOT that say that if he has materially increased the risk he will be liable in tort. It says if D is liable in tort the section will apply! Hence, determination of ‘material contribution’ remains a question of common law (Fairchild and Barker).

Answer 13

the law tampers with the ‘but for’ test of causation at its peril -Fairchild is unsatisfactory. It must only be applied to mesothelioma cases!!! To award full damages to C is rough justice. But it is balanced by the denial of compensation to C who cannot establish the probabilities. Save only for mesothelioma cases, C should henceforth expect little flexibility from the courts in their approach to causation. Courts are cautioned to be wary indeed of creating any further special rules in personal injury claims!

Answer 14

nothing which I have said is intended to discourage the use of epidemiological evidence or to depreciate its value in cases where a claimant has to prove his case on the balance of probabilities. Far from it. Obviously, for example, epidemiology is likely to lie behind much of the evidence on which a court determines whether an exposure has materially increased the risk of the claimant developing a disease. Epidemiological evidence may also be relevant when deciding whether it would have been reasonable for a defendant to take precautions to avoid the risk of the claimant suffering a particular injury—say, the side-effect of a drug. And, of course—it must be emphasised once more—epidemiological and statistical evidence may form an important element in proof of causation. Unless a special rule applies, where there is epidemiological evidence of association, the court should not proceed to find a causal relationship without further, non-statistical evidence!

Answer 15

Commentary: ZCT: epidemiological evidence sounds a bit shaky. If 1000 people hurl abuse at me and cumulatively cause me RPI, there is arguably no material contribution to my RPI (0.1% per person). But if there are only 4 (25% per person), the results may change. I may be way more traumatised in the first case than the second. Hence, the epidemiological evidence should not be a primary concern. Yet, should the courts find ‘material contribution’ in the first case? Oliphant:1) the approach is Janus-faced (duplicitous). Lord Philips remarked that the ‘material’ definition is draconian on D. Some have even suggested this exceptional approach should cease to exist when medical knowledge advances. The tenor of the judgments suggests that any attempt to extend the circumstances in which the McGhee/Fairchild rule will apply will NOT be countenanced!2) the problem with the epidemiological evidence is that they can show increased risk only, NOT whether C actually fell within the risk of contracting the disease as a result of D’s tortious exposure but not the ambient environmental risks!! 3) it is unlikely that the evidence be used as grounds for applying the McGhee/Fairchild exception! Miller: it is clear that C must establish a rock of uncertainty of the medical evidence if the Fairchild principle is to be applied outside of mesothelioma cases. Unless this hurdle was cleared, the orthodox causation rule (balance of probability) would apply, as in Hotson. Stapleton: care must be taken when using epidemiological evidence as it depends on the understanding of the causal processes. Lords Philips and Dyson seem to have allowed causation to be established under the ‘doubling the risk’ approach. Others have not gone this far (‘false air of authority’ per Lord Kerr). Ibbetson and Steel: the weight of opinion of the court is AGAINST epidemiological evidence being able on its own to establish causation! Laleng: the meaning of ‘de minimis’ is still unclear!

Answer 16

ϖ --- liability insurance case. D were employers facing actions from V (employee), who died from mesothelioma due to exposure to asbestos dust. Can C claim insurance under the insurance policy? The issue was whether the insurance police covered mesothelioma or the risk of mesothelioma. Held: it was inaccurate to speak of an employer's liability to an employee who had developed mesothelioma after exposure to asbestos as being simply for the risk created by exposing the employee to the asbestos! Risk was no more than an element or condition necessary to establish the liability for mesothelioma and the reality was that the employer was being held responsible for the mesothelioma

Answer 17

it is impossible, or at least inaccurate, to speak of the cause of action recognised in Fairchild and Barker as being simply “for the risk created by exposing” someone to asbestos. If it were simply for that risk, then the risk would be the injury; damages would be recoverable for every exposure, without proof by the claimant of any (other) injury at all. That is emphatically NOT the law! The cause of action exists because D has previous exposed V to asbestos, AND because mesothelioma has been suffered by V! Here, nothing suggests that the risk to which D exposed V actually materialised! Hence, the cause of action is ‘for’ and ‘in respect’ of the mesothelioma, and that is reason why D is liable under Fairchild/Barker. It is over-simple to describe it as being for the risk! Liability for mesothelioma following upon exposure to asbestos created during an insurance period involves a sufficient “weak” or “broad” causal link for the disease to be regarded as “caused” within the insurance period. It would, I think, have been anomalous and unjust if the law by “deeming” there to have been causation of the disease could have created policy liability

Answer 18

the policies did NOT cover D’s liability to V because the McGhee/Fairchild exception was for the risk of mesothelioma, NOT for the mesothelioma itself. As the policies did not cover liability for creating risk, D was not covered.

Answer 19

Commentary: ZCT: 1) Lord Phillips is right. How can Lord Mance be right that there is such weak or broad causal link if we are not even sure whether D actually caused the disease itself? The outcome may be that D did not cause the disease. Hence, to make D liable, we can only say that his liability is in respect of the risk. And this is ‘deemed causation’. 2) Proper threshold for ‘material contribution to risks’? Whether it is just or not to impose deemed causation should, I think, depend on a higher threshold for material contribution. I think 50% should be the right threshold, otherwise D (who may not even have caused the injury) will almost always be liable if a non-negligible contribution is to suffice! It will be even more unjust to D if apportionment is not available! 3) Thought Experiment (moral luck): C voluntarily exposes himself to asbestos 12 hours every day at his own home through his own fault, and 1 hour every day during the course the employment by D. It is unknown what caused C’s cancer. Should we make D liable for creating a ‘non-negligible’ but 1/24 risk’? This whole Fairchild exception seems absurd. But then again, if D is only liable for 1/24, that is more acceptable. As Lord Bingham pointed out, it is better for D1 to be liable for 1/8, D2 1/8… and C himself 1/8 then for C to be unable to recoverable 8/8 of the whole damage he suffered. But this is not necessarily the fairness outcome if D1 to D7 were totally not responsible for the injury. Yet, a moral luck argument would be that D’s fault has been done – whether it has caused the real injury is a matter of moral luck which is outside D’s control. If it did cause it, then D would be liable anyway. Hence, D’s liability may be justified! Mitchell: there are two different treatments of Fairchild: a) It replaces the usual requirements of proof of causation and balance of probabilities with this weaker test for mesothelioma cases b) It recognizes a new form of damage – the risk of contracting mesothelioma is in itself a form of risk which can be sued for. According to Lord Hofmann in Barker, it has been used as a justification All the majority judges said D was wrong. The loss was mesothelioma, not the risk of creating it. The Fairchild principle is committed to mesothelioma cases, but should ONLY to mesothelioma cases. A middle ground has to be found! Fairchild is unprincipled – it is a terrible mess! Increased risk of injury is NOT a kind of damage that is recoverable in tort: see Chorus! Oliphant: Lord Philip’s view is hard to be reconciled with Grieves v Everard, where the HL held risks were not compensable. Proportionate damages may be accepted. Hence, the insistence on mesothelioma for a cause of action should be correct! If Lord Philip is right, then C can sue D the moment D puts him in a room exposing him to asbestos, which is untrue! The risk of mesothelioma is not actionable damage! Hoffmann: The court should NOT allow a Fairchild claim in non-mesothelioma cases! Fairchild seems unprincipled and unable to be justified! We should not have done what we did! Unprincipled exceptions should be for Parliament to legislate. Mitchell: then why did you decide the way you did?

Answer 20

• For C to successfully sue D, D ‘ought to be liable for the damage in question’. Policy concerns loom large and if the chain of causation is broken, then D is not liable

Answer 21

• Where the new act is of X, the test is whether the act was foreseeable. If X’s act was not foreseeable, this will break the chain of causation and D is not liable for the actions of the third party: Home Office v Dorset Yacht

Answer 22

this is more likely to break the chain of causation ϖ was driving a car on the main road and came out of a one-way tunnel and crashed. The police officerin charge (X)arrived driving through the tunnel, but forgot to close the other end of the tunnel before dealing with the crash site to stop the traffic from coming through. So X told his colleague (C) to drive back through the one-way tunnel to the entrance to close the tunnel. That order was in breach of police force standing orders. The colleague was hit by an oncoming car without negligence on the part of the driver and badly injured. Should D be liable to the injured colleague C? Held: X’s instructions and failure to close the entrance to the tunnel were negligent and broke the chain of causation. C’s decision in going through the tunnel was not negligent. Thus C was entitled to full damages from X. D was not liable. Stevenson J: the question to be asked is whether the sequence of event is (a) A natural and probable consequence of D’s negligence, AND (b) A reasonably foreseeable result of it? Taking into consideration: i) Negligent conduct is more likely to break the chain of causation that conduct which is not. ii) Positive acts will more easily constitute new causes than inaction. iii) Unforeseeable mistakes and mischances are to be expected when human beings have to cope with a crisis iv) The answer must be dictated by common sense of plain man rather than the logic of philosophers on the facts of each case ⎝ While reasonable errors may be expected, a reasonable hypothetical observe will NOT expect that X will make this kind of mistake. Hence, X broke the chain D is not liable! D’s responsibility cannot be taken too far!

Answer 23

⎝ not liable! D’s responsibility cannot be taken too far! Commentary: Stapleton: it is more intelligible to think of this as a remoteness issue, not a causation issue. Causation bogs us down with the causation rules and makes it as if there is a scientific test, which misses the point. We should rather focus on the substantive normative arguments about responsibility which are the underlying drive of the court’s decision. If it is a causation issue, the courts will disguise their concern of fairness using the causation rules. Remoteness allows the courts to be more upfront and not have to invent causation rules. The underlying principle is the notion of personal responsibility. Mitchell: this is an exception to the Contribution Act which allows D and X to be jointly liable under D’s contributory claim against X. Oliphant: whether annovus actus will break the chain is a matter of common sense, depending on the facts.

Answer 24

• General rule: where X’s intervention is by way of a deliberate wrongful act, the chain of causation will in general be broken. D will in general not be liable.

Answer 25

ϖ Lord Summer: In general (apart from special contracts etc), even though A is in fault, he is not responsible for injury to C which B, a stranger to him, deliberately chooses to do. Though A may have given the occasion for B's mischievous activity, B then becomes a new and independent cause. No liability of D can arise unless D is under an exceptional duty to take care to prevent X from injuring C. Commentary: X’s moral responsibility is so much greater than D. It therefore makes sense to hold X liable. But there are exceptions.

Answer 26

ϖ D negligently fractured a water pipe C’s house. This caused extensive damage and the property had to be vacated. One year later D had not undertaken the repairs. Squatters had also moved in and caused further damage. C arranged for repairs to be done herself and submitted a bill to the D council for the repairs and damage caused by the squatters. Held: Here, the local authority was not liable for the acts of the squatters – although it created the opportunity for the squatter (X)’s damage. It was not foreseeable that squatters would move into an empty house in Camden and cause damage despite the prevalence of such behaviour in Camden at the time

Answer 27

D did not cause the squatter’s damage unless it could be said that they were under a duty to prevent the squatter’s behaviour. If there is such duty, D cannot complain there is a novus actus. X’s act is the occasion of the breach of duty, NOT a separate cause. Commentary: see Home Office v Dorset Yacht; Mitchell v Glasgow CC

Answer 28

ϖ decorator worked for a house, went out to buy wallpaper and left the front door unlocked. Held: he was liable for the loss caused by an entering thief as the loss was caused by his negligence because his duty was to take reasonable care to guard against thieves entering!

Answer 29

criminal prosecution) did D ‘cause’ the polluting matter to enter controlled waters contrary to an Act? Held: Lord Hoffmann: ‘Causing’ is said to be a matter of common sense:Alphacell. However, it does not seem that a question of causation can be answered without attributing responsibility under some legal rule and knowledge of the purpose and scope of it. It is a question of law. Hence, Weld-Blundell v Stephens is subject to the exception that, if D’s duty breached is to prevent intentional harm of C by X (e.g. security guards breaching the duty to protect the property, even if X deliberately steals the property, the security guards will nonetheless be liable!). This exception prevents making D’s DOC illusory! Commentary: see Home Office v Dorset Yacht

Answer 30

• Where the new intervening act is that of C, the test is whether C acted reasonably in the circumstances. If C’s actions are unreasonable in the circumstances the chain of causation is broken and D is not liable for the actions of the claimant

Answer 31

ϖ C suffered an injury at work (employed by D) causing weakening of his leg. C went to inspect a flat and had to descend a deep staircase with no handrail. His leg gave way, and, to avoid going down head-first, he threw himself and landed on his right leg, jumping 10 steps to the bottom and ended up breaking his ankle. HL Held: D should not be liable. C amounted to a novus actus interveniens because his action in attempting to climb the steps unaided knowing that his leg might give way was unreasonable. Lord Reid: although it was foreseeable that C would do this, the attempt to descend the stairs was an unreasonable act for which D is not responsible.Commentary: ZCT: but why should the ‘thin skull rule’ not apply? See Roberts and Blaue!

Answer 32

C was injured while trying to climb out of a lavatory cubicle in which she was trapped due to D’s negligence. Held: although C’s method of escape involved considerable risk, the chain had not been broken. Yet, her damages was reduced ¼ due to contributory negligence!

Answer 33

(suicide) C has a bad accident at work and was disfigured by a machine. As a consequence of this, he suffered RPI (depression) and then committed suicide. C’s family sued the employer D. D made 5 arguments why it was not liable, one of the arguments is that D owed no DOC to RPI (rejected by HL under Page). D also argued that C’s suicide was a novus actus. D also argues that C contributes to the negligence. HL Held: D’s novus actus argument is rejected. C’s decision to kill himself was NOT taken by a person who has sufficient personal autonomy to understand the meaning of his actions! His perception of life is distorted by his depression! Hence, C was not a fully autonomous human being. Hence, C’s suicide, although his own deliberate, conscious act, had been the direct result of that depressive illness at a time when his capacity to make reasoned and informed judgments about his future had been impaired by it, and, accordingly, the chain of causal consequences for which the defendant was liable had not been broken by the suicide as a novus actus interveniens. see also contributory point

Answer 34

As regards contributory negligence (C and D are both at fault and have causative effect on C’s harm), contributory negligence usually leads to a reduction of damages. Lord Bingham: if C is not an autonomous being, how can he be at fault for the purpose of contributory negligence? Hence, there should be NO contributory negligence defence! It would be inappropriate to reduce the damages to be awarded to the claimant on the basis of the deceased's contributory negligence in the absence of satisfactory material on which to decide whether such a reduction should be made, and in what amount. Commentary: Mitchell: Bingham and Scott LJJ should be correct! The reduction of damages is arbitrary. Oliphant: the same result was reached in Kirkham v CCGMP (suicide after depression)

Answer 35

If D is under such DOC, C’s action will not break the chain of causation

Answer 36

the police had a DOC to prevent suicide of prisoners on the facts. Hence, C’s suicide was not a novus actus. Lord Lloyd: yet, a voluntary, deliberate and informed act of C precludes a causative link between the breach and the consequence of D’s acts. Commentary: note that there is NO general duty that the police prevent persons in custody from harming themselves: Orange v CCWY Police; Vellino v CCGMP

Answer 37

ϖ C commits suicide during custody. C’s family sued the MPC for failing to stop him doing so. HL Held: police do not generally have a DOC to prevent a prisoner from harming himselfUNLESS he has been made particularly aware, in which case he will owe a DOC. Here, C cannot make this argument because this may empty the DOC. So if there is a DOC owed by D to take reasonable steps to prevent it, the suicide of C, whether of sound mind or not, did NOT negate D’s responsibility for death. Here D knew of C’s suicidal tendencies and hence owed C a DOC to prevent him from killing himself. Nevertheless, a claim in contributory negligence was allowed Lord Hoffmann: once it is admitted that there is the rare case in which a DOC is owed, it seems self-contradictory to say that the breach could not have been a cause of the harm because V caused it to himself. Lord Hobhouse (dissenting): what if C killed himself to gain publicity for a cause?

Answer 38

ϖ doctor died whilst attempting the rescue of two workers trapped in a well because of D’s negligence. Held: the general rule is that when a rescuer (C) is injured while performing a rescue necessitated by D’s negligence, the rescuer will have a claim against D unless he acted in ‘wanton disregard’ for his own safety. Morris LJ: there is in all men of good will an urge to save those who are in peril. If a rescuer acts with a wanton disregard of his own safety it might be that in some circumstances it might be held that any injury to him was not the result of the negligence that caused the situation of danger. Such a contention cannot be here asserted

Answer 39

• This is a further control of liability – it places limits on liability for damage for which D’s negligence has factually been a ‘but-for’ cause, but, as a matter of legal policy, no liability could attach. • It acts as a further rule to causation to limit the open-ended ripple effects of the but-for causation test. This is a cut-off rule based on moral intuition

Answer 40

historically, D was liable for all losses which were a direct consequence of the defendant's breach of duty. There was no cap on recoverability.

Answer 41

Some stevedores (dockworker) carelessly dropped a plank of wood into the hold of a ship. The plank struck something as it was falling which caused a spark. The spark was ignited by petrol vapours resulting in the destruction of the ship. FI (Arbitrator) Held: it is reasonably foreseeable that some kind of damage may be foreseen, e.g. landing on someone etc, but NOT that it would go through the hatch and destroy the ship. CA Held: FI is wrong. D is liable. There is no reasonable foreseeability of damages rule! All that has to show is that the damage is the direct result of the negligence (directness rule). Commentary: this rule is no longer the law and was overruled by The Wagon Mound (No 1). Oliphant: but, to be fair, in the judgment, there was mention of reasonable foreseeability.

Answer 42

f C’s damage falls within the risk D created (=C’s damage is of a type which might reasonably foreseeably result from D’s negligence), then D will be made liable for that damage in general. The test is ‘reasonable foreseeability’ of C’s damage!

Answer 43

ϖ D (engineer on the SS Wagon Mound) carelessly dumped a lot of oil into the water and that oil drifted down to the wharfs further along so that when D got up the next morning. C’s welding manager saw that oil, suggesting that welding work could not be carried out since welding in oil might lead to a fire. C’s other manager, however, said welding would be fine. What ultimately happened was that there was a cloth which caught fire and that destroyed the wharf. D was sued by the wharf owner for negligently dumping the oil into the water in the first place. The wharf manager had stopped the welding work, but then continued. Hence, it was foreseeable to the manager that the welding would have caused a fire. D argued that there was contributory negligence, and C’s claim must fail completely. C therefore conceded that it was not reasonable foreseeable that the oil might catch fire in order to get out of contributory negligence. PC Held: if it is not reasonably foreseeable to C, it is not so to D too! The test for remoteness is reasonable foreseeability. Hence, D is not liable for the destruction of the wharf.

Answer 44

the directness rule in Re Polemis is unprincipled – it does not seem consonant with current ideas of justice of morality that C must be liable for all consequences of D’s act, however unforeseeable, slight or venial! It should no longer be regarded as good law!The principle of civil liability states that he is only liable to a probable consequences of his acts! To demand more of him is too harsh a rule; to demand less is to ignore that civilised order requires the observance of a minimum standard of behaviour. The limitation to the recovery of damages in the tort of negligence is reasonable foreseeability – it corresponds with the conscience of the mankind! A man should be responsible for the natural/necessary/probable consequences of his act because by the standard of the reasonable man he ought to have foreseen them! The directness rule leads to never ending and insoluble problems of causation.

Answer 45

Rule: Re Polemis overturned by Simonds VC in the PC. Reasonable foreseeability test is used, if not objectively reasonably foreseeable, C’s damages could not be recovered. Commentary: Mitchell: this rule is open to judicial manipulation, as the rule does NOT require the extent of the damage be foreseeable, but only the type of damages be foreseeable to be recovered. This is because C must take D as he finds him – thin skull rule. As long as the type of injury is foreseeable to D, that is enough for C to recover, otherwise D could always argue that he did not foresee the particular damage suffered by D. So the court may manipulate the test by enlarging or narrowing the ‘type’ of the injury! Is the type ‘skin disease’ or ‘a particular form of skin disease’? You never know how the courts are going to rule! Oliphant: a problem that arises with the ‘reasonable foreseeability’ test is how it fits with the reasonable foreseeability test at the DOC stage (Caparo). If it had already been decided that D could objective foresee that C was a foreseeable victim of D’s negligence and owed a DOC, why come back to foreseeability here? Harris: the foreseeability tests in DOC and remoteness are NOT identical. They are based on different sets of data. ¬ ****In the DOC stage (general), the concept is to answer whether D’s action should be tested by the standard of care of reason man. The risk need NOT be seen in any detail. The test is simply: ‘if care is not taken by D, is there a risk of harm to someone in C’s position?’ ‘Care not taken’ is unspecified, without knowledge of the act by which D will later be labelled as negligent. **Oliphant: here, the whole range of risk that D might create is considered!! The purpose is to impose DOC. If the risks are sufficiently serious, DOC is owed. ¬ ****In the remoteness stage (focused), the test of foreseeability is applied to D’s specific action: what types of consequences are foreseeable by reasonable man in D’s shoes in the given circumstances with D’s knowledge. The test is applied to the actual negligence in question! Oliphant: here, the court focuses on what actually occurred and the precise way in which D was negligentThe purpose is to determine whether C’s injury was within the ‘risk’ created by D’s negligence. Hindsight comes into the question. Oliphant: there are severable problems with the test: 1) The range of risk arising from D’s act might be very large indeed: how can C get out of the ‘zone of risk’? See Bourhill v Young, there C was not a foreseeable victim of D’s negligence, but surely there was a risk that D might have run into her! 2) If the DOC is imposed relative to the harm of a particular type, what is the ‘reasonable foreseeability’ remoteness test doing? One might say the test at the remoteness stage is narrower.

Answer 46

The reasonable foreseeability test is often subject to judicial manipulation.

Answer 47

C suffered a burn to his lip caused by D’s negligence. He had already suffered malignant cancer and D’s act triggered his cancer and he died after the burn. CA Held: Applying the thin-skull rule, D has to take C as he finds him. This rule is unaffected by The Wagon Mound! As long as the type of injury (the burn) was foreseeable, the fact that this caused C greater injuries (the death)was irrelevant! Rule:the question is whether a burn is the foreseeable type of injury, not whether C would die. Yes it is foreseeable and D is liable.

Answer 48

there was a man-hole in the road dug up by D (workmen). D hung paraffin lamps over it to show pedestrians where it was when D left. Is it foreseeable that some boys (C) may tamper with the lamps and cause themselves injury by going into it and then knock over the lamp and cause an explosion and severe burning of C? D argued that C’s injury was too remote. HL Held: is the burn of the oil reasonably foreseeable to cause injury? YES, even though C has suffered from a more severe type of injury. Lord Reid: this is an accident caused by a known source of danger, but in a way which could not have been foreseen. Hence, there was no defence. Commentary: again, the case is open to manipulation. The definition of ‘type’ is facourable to C. ZCT: Lord Reid seems to have placed the focus on ‘known source of danger’ instead of foreseeability!

Answer 49

An asbestos lid was accidentally knocked into a cauldron of molten liquid. A few moments later an explosion occurred. C was standing close by and suffered burns from the explosion. The explosion occurred as a result of the asbestos reacting with the chemicals in the liquid in the high temperature. At the time of the incident it was not known that the asbestos could react in that way. Held: the damage was too remote. It was not foreseeable that an explosion would occur. Whilst it may be foreseeable the lid may have caused a splash resulting in a scold, it was not foreseeable that an explosion would occur resulting in burns. Commentary: the type here is not ‘burn caused by metal splashing out’, but ‘burn caused by explosion’. Hence, the test can be unpredictable.

Answer 50

ϖ The farm labourer contracted leptospirosis (Weil’s disease) from handling materials on which rats had urinated. D negligently allowed his farm to be overrun with rats. Held: it is foreseeable that C might get bitten by rat because of D’s negligence, but it is not foreseeable that C would contract the Weil’s disease upon contact of rat urine. It was not known at the time that leptospirosis could be transmitted in this way. Whilst it was foreseeable he may contract the disease by a rat bite, the way he contracted the Weil’s disease was not foreseeable. Commentary: type interpreted not to be the rat bite. Arbitrary!

Answer 51

ϖ Two young boys found a derelict boat on land owned by the council and decided to do it up. The boat was in a thoroughly rotten condition and represented a danger. The council had stuck a notice on the boat warning not to touch the boat and that if the owner did not claim the boat within 7 days it would be taken away. The council never took it away. The boys had been working on the boat for 6-7 weeks when one of them suffered severe spinal injuries, resulting in paraplegia, when the boat fell on top of him. The boys had jacked the boat up to work on the underside and the jack went through the rotten wood. C brought an action under the Occupiers Liability Act 1984. HL Held: the appropriate classification of the risk was that children would meddle with the boat at the risk of some physical injury, NOT injury caused when a jack collapsed! Hence, the damage was NOT too remote! Commentary: the modern trend is to define the ‘type’ widely: Smith v Leech Brain

Answer 52

ϖ PI and physical damage are both ‘personal injuries’

Answer 53

• To succeed in a negligence action, D must have no defences • Defences: (a) Volenti non fit injuria (complete defence) (b) Illegality (complete defence) (c) Contributory negligence (partial defence) (d) Exclusion of liability (exclusion clause defence)

Answer 54

• One who has invited or assented to an act being done towards him CANNOT, when he suffers from it, complain of it as a wrong (Smith v Baker) • The elements of the defence are: i) C must have full knowledge of the risk ii) C must have explicitly or impliedly agreed to accept the risk iii) Voluntary assumption and breach of duty

Answer 55

ϖ C (workman) was employed by D to execute work on a side wall on the line of railway in a pitch-dark tunnel. Trains pass the spot every 10 minutes and due to the curved tunnel, C would not be aware of the approach of the train until it was within 20-30 yards. C was struck by the train and was seriously injured. Held: C was aware of the danger and voluntarily encounters it and fails to take the necessary care for avoiding it. D would not be liable for injury from danger to which C voluntarily exposed himself. Commentary: this extreme approach wrongly equated knowledge with assent, and was reversed.

Answer 56

ϖ Lord Herschell: Where, then, a risk to the employed, which may or may not result in injury, has been created or enhanced by the negligence of the employer, does the mere continuance in service, with knowledge of the risk, preclude the employed, if he suffer from such negligence, from recovering in respect of his employer's breach of duty? I cannot assent to the proposition that the maxim, “Volenti non fit injuria,” applies to such a case, and that the employer can invoke its aid to protect him from liability for his wrong. Commentary: the full knowledge requirement is followed in Bowater v Mayor

Answer 57

• C must agree expressly or impliedly to waive any claim for any injury that may befall him due to the lack of reasonable care by the defendant

Answer 58

ϖ C agreed to give driving lessons to D. It was obvious to C that a learn driver may lose control of her car ‘negligently’. Can D raise the volenti defence? Lord Denning: "Knowledge of the risk of injury is not enough. Nothing will suffice short of an agreement to waive any claim for negligence.C must agree expressly or impliedly to waive any claim for any injury that may befall him due to the lack of reasonable care by the defendant: or more accurately due to the failure by the defendant to measure up to the duty of care which the law requires of him". Here, C does NOT agree, merely by taking the role of instructor in the full knowledge of the risk of negligence, waive any right to compensation! Commentary: the volenti defence has been excluded from driver/passenger claims under s.149 of theRoad Traffic Act 1988!

Answer 59

(acceptance before negligence) C was injured when she was a willing passenger in the car driven by the D. D had been drinking and the car was involved in a serious crash which killed him. D was not drunk until after the drive began, and he only started drinking until quite a late stage in the day. In a claim for damages D raised the defence of volenti non fit injuria in that in accepting the lift knowing of his drunken condition C had voluntarily accepted the risk. C also remarked to others ‘you should be like me. If anything is going to happen it will happen’. Held: C could recover from D’s estate. The defence failed!

Answer 60

Volenti non fit injuria (voluntary assumption of risk)

Answer 61

1) The volenti doctrine can apply to the tort of negligence, but depends on C (passenger)’s knowledge and acceptance of the risk. C cannot be volens in respect of acts of negligence which he had no reason to anticipate. 2) Since C was drinking, can it be assumed that he was capable of appreciating the risk? Yes, evidence shows that he is not ‘blind’ drunk and so C was capable of understanding what he was doing. Despite knowing the clear source of great danger, C cooperated fully in the joint-activity by assisting. He had implicitly waived his rights in the event of injury consequent on D’s failure to fly with reasonable care. 3) Dann v Hamilton distinguished: ¬ Where a dangerous physical condition has been brought about by the negligence of the defendant, and, after it has arisen, the plaintiff, fully appreciating its dangerous character, elects to assume the risk thereof, the maxim has often been held to apply, and to protect the defendant ¬ Where, however, the act of the plaintiff relied on as a consent precedes, and is claimed to license in advance, a possible subsequent act of negligence by the defendant, the case may well be different.

Answer 62

C said that he would not have gone on the flight had he not been drunk, but this is different from the proposition that he was so intoxicated that he could not appreciate the risk. To accept a flight in a plane piloted by one who has a significant amount of drink is to engage in an intrinsically and obviously dangerous occupation. C’s claim should be rejected based on the volenti defence. Commentary: the test of C’s knowledge seems to be subjective here: the question is whether the Claimant was so intoxicated that he was incapable of appreciating the nature of the risk!

Answer 63

Held: the defence of volenti would fail if the act V relied on is the very act which the duty cast upon D required him to prevent!

Answer 64

ϖ but for the negligence of the police, prisoner would not have killed himself. The police was under a DOC. Held: followed Kirkham. The defence is defeated where the prisoner who committed suicide was of sound mind. If the suicide did not amount to a novus actus, the defence could not succeed.Commentary: D cannot rely on this defence, otherwise the police’s DOC will be emptied and rendered illusory!

Answer 65

ϖ Cs were brothers who were qualified shot-firers employed by DThey were injured as a result of an explosion at D’s quarry caused by the C' negligence. They had insufficient wire to test a circuit to allow them to test from a shelter. Another worker had gone to fetch more wire but the brothers decided to go ahead and test with the shorter wire. Each brother claimed against D based on their employer's vicarious liability for the negligence and breach of statutory duty of the other brother. D raised the defence of volenti non fit injuria in that the brothers had full knowledge of the risk and were acting against express instructions. C argued that the risk was a remote one even though they knew of it.Held: The brothers had deliberately acted in defiance of the employer's express instructions in full knowledge of the risks. C argued ‘I didn’t think it would happen to me’, but whoever does?This is NOT an answer once the risk is known and understood and accepted! They acted voluntarily, as C1 invited C1 to join him in the test.

Answer 66

• The agreement must be to the negligence itself, NOT the general risk of injury.

Answer 67

horseman (in a competition) galloped his horse round a corner. A cameraman, C, was standing about 25 yards from it although he had been told to go outside the competition area while the horses are galloping. When the horse approached him, C stepped back and was knocked down and injured. C sued the horse owner. Held: A person attending a game or competition took the risk of any damage caused to him by any act of a participant done in the course of and for the purposes of the game or competition notwithstanding that such act might involve an error of judgment or lapse of skill, unless the participant's conduct was such as to evince a reckless disregard of the spectator's safety, or was deliberately intended to injure someone whose presence was known so that it was a departure from the standards which might reasonably be expected in anyone pursuing the competition or game

Answer 68

ϖ C knew the horse she picked had a propensity to buck. C fell off. Held: the defence applied and there was no liability. Commentary: but if it was because the floor was slippery, the defence would not apply, as there was no sufficient connection

Answer 69

• Unlike illegality (complete defence), this defence is partial and is favoured by the courts.

Answer 70

1Apportionment of liability in case of contributory negligence (1)Where any person suffers damage as the result partly of his own fault and partly of the fault of any other person or persons, a claim in respect of that damage shall not be defeated by reason of the fault of the person suffering the damage, but the damages recoverable in respect thereof shall be reduced to such extent as the court thinks just and equitable having regard to the claimant’s share in the responsibility for the damage:. Provided that— (a)this subsection shall not operate to defeat any defence arising under a contract;. (b)where any contract or enactment providing for the limitation of liability is applicable to the claim, the amount of damages recoverable by the claimant by virtue of this subsection shall not exceed the maximum limit so applicable

Answer 71

Interpretation The following expressions have the meanings hereby respectively assigned to them, that is to say— “court” means, in relation to any claim, the court or arbitrator by or before whom the claim falls to be determined; “damage” includes loss of life and personal injury; “fault” means negligence, breach of statutory duty or other act or omission which gives rise to a liability in tort or would, apart from this Act, give rise to the defence of contributory negligence.

Answer 72

⎝ Glanville Williams: the definition of fault here allows an action for damages for a fault which would NOT at common law have been a breach of DOC! Hence, no DOC is required to establish fault. Carelessness is enough! ⎝ Petrin: Hence, this means the defence may apply to acts not negligence or breach of statutory duty! The requirements are therefore this: ⎝ a) D’s fault: D’s act must be negligence, breach of statutory duty, or other act or omission which give rise to a liability in tort; AND b) C’s fault: C’s act must be negligence, breach of statutory duty or the other acts or omission giving rising to the defence of contributory negligence

Answer 73

ϖ C has a car accident only because of D’s fault. Yet C deliberately chose not to wear a seat belt, and suffered exacerbated injury. C was at fault, but NOT negligent, because he does not owe a DOC to D and other drivers. He was merely careless for not wearing the seatbelt. He owed that duty only to himself. Held: under the Act, the defence can still apply to D. D can claim contributory negligence based on C’s ‘carelessness’ even though C is not negligent. That ‘carelessness’ is relevant in the defence. Lord Denning: 1) Breach of duty: negligence depends on a breach of duty; contributory negligence does NOT! Negligence is A’s carelessness in breach of duty to others. Contributory negligence is A’s carelessness in looking after his own safety! 2) Rationale: although it is true that C is in no way to blame, we need to distinguish the cause of accident and the cause of damage. In seat belt cases, the cause of accident is obviously D’s negligence (bad driving), but the damage is caused in part by the failure of C to wear a seat belt. He must bear some share in the responsibility for the damage and his damages shall be reduced. 3) Apportioning the share of responsibility: consideration should be given to i) the causative potency of the factor ii) C’s blameworthiness. ¬ If evidence shows that C’s failure did NOT contribute to the damage, then no reduction of damage should be available to D (100% liability). ¬ If C’s failure made all the difference as the damage would have been prevented altogether but for the failure, the damages should be reduced by 25%! This is the present case! ¬ If C’s failure made a considerable difference, the damages to C should be reduced by 15%

Answer 74

ϖ lorry driver signalled C (young girl) to cross the road with one hand, and another hand to stop the traffic. As C went past the edge of the lorry, she did not pause to see whether there was any incoming traffic and got hit by a car driven at an excessive speed by the negligent D. D raised the CN defence. Held: Lord Denning MR: a child is only guilty of CN if she is of such an age as reasonably to be expected to take precautions for her own safety and if blame should be attached to her!

Answer 75

• The defence is NOT applicable to D

Answer 76

ϖ reminder: trespass to the persons is NOT an act/omission giving rise to the defence of contributory negligence! Commentary: ZCT: so if V is raped (trespass to the person) because she wore skimpy clothes, D could not rely on contributory negligence.

Answer 77

• The defence may be applicable to D. The lack of novus actus is NOT conclusive of the issue of contributory negligence!

Answer 78

ϖ C deliberately committed suicide whilst in police custody. It was found that the suicide did NOT amount to a novus actus as the police owed C a duty in respect of his not committing suicide. Held: Lord Hoffmann: despite that, the act could nonetheless amount to fault. Answering ‘no’ to ‘did the suicide break the causal link’ did NOT preclude ‘yes’ to ‘did the suicide contribute to C’s death’!Commentary: ZCT: to defend Lord Hoffmann’s distinction, we have to understand that when we say that A caused B the harm, we are NOT saying that A is 100% responsible. Causation is only about but-for (50%) and ‘proximate causes’. The fact that the suicide was insufficiently grave to amount to a novus actus does NOT lead to the conclusion that A is 100% faultless – he might be 95% faultless only!

Answer 79

ϖ Lord Reid: the fact that several people have been at fault and that if any one of them had acted properly the accident would not have occurred does NOT mean that the accident must be regarded as having been caused by the fault of all of them. Some faults are just too remote! Commentary: ZCT: remember that REMOTENESS does not negate causative effect, it just states that the damage is outside the ‘scope’ of recovery!

Answer 80

ϖ Held (majority): C’s suicide could lead to a reduction of damages for contributory negligence. Even though C was not fully autonomous due to the depression, he retained some capacity, and some responsibility had to be attributed to C. Lord Bingham (dissenting): if C is not an autonomous being, how can he be at fault for the purpose of contributory negligence? Hence, there should be NO contributory negligence defence! It would be inappropriate to reduce the damages to be awarded to the claimant on the basis of the deceased's contributory negligence in the absence of satisfactory material on which to decide whether such a reduction should be made, and in what amount. Commentary: Mitchell: Bingham and Scott LJJ should be correct! The reduction of damages is arbitrary. O’Sullivan: C’s suicide was a symptom of a ghastly illness, no more his fault than if he died of cancer triggered by the accident. To retort that he was not an automaton shows no understanding of the effects of the depression! ZCT: the important question here should be ‘is an automaton 100% faultless?’ and ‘if yes, is C really an automaton?’!

Answer 81

• Contributory negligence requires the foreseeability of harm to oneself (fault) and causation of the damage by the fault

Answer 82

ϖ the driver (C)rode on the back of a tracked vehicle, contrary to the express instructions of his employer. The vehicle was hit by another vehicle of D and C’s legs were crushed and had to be amputated. D raised the contributory negligence defence since C had been riding on the back of the tracked vehicle. Held: Denning LJ: two questions to be considered one by one. Foreseeability is used to establish fault; causation is used to establish link. 1) Foreseeability of harm: Although CN does not depend on DOC, it does depend on requires foreseeability of harm to oneself.A person is guilty of CN if he ought reasonably to have foreseen that, if he did not act as a reasonable, prudent man, he might hurt himself. 2) Causation: the question is ‘what faults were there which caused the damage?’ Was C’s fault one of them? The necessity of causation is shown in the word ‘result’ in s.1(1) of the Act! It is a matter of common sense, NOT foreseeability! Foreseeability is not decisive, although relevant! Even if C did not foresee that he would be crushed, nevertheless his act was a cause. Here, C’s dangerous position on the vehicle was one of the causes of his damage! Hence, C’s damages should be reduced.

Answer 83

Rule: Someone is guilty of CN when, if he does not act a reasonable man, he might harm himself. Once there is fault, the question is whether the negligence caused injury! Here the harm was foreseeable and so CN applies. It is only if there is insufficient link between the harm and the negligent act will CN be unavailable (sports example). Commentary: lifestyle choices such as the use of drugs cannot be relied on for CN where D’s negligence consisted of failing to treat these conditions: Calvert v William Hill Credit. They were generally too remote from D’s negligence: ‘no more than part of the history’. Oliphant: note that the Act only dictated the consequences of a finding of CN, whether any causally-relevant CN existed must still be decided.

Answer 84

rescuer) D was attempting to board a moving train. C was the guard on the train, and under the rules regulating emergencies he was required as the guard to signal the driver to stop or to apply the emergency brakes himself or both. C tried to signal, but gave the incorrect signal, and the train continued to accelerate away from the station. C then tried to grab hold of D who fell off the train, injuring C.Held: A person who, through lack of care for his own safety, puts himself into a situation of danger, and who ought reasonably to have foreseen that another person might endanger himself by attempting to rescue him, is liable to his rescuer for injuries sustained by him in the course of the attempted rescue. D was liable to C’s injuries here, but C was guilty of contributory negligent as he gave wrong signals! C’s damages were reduced by 20%.

Answer 85

ϖ C’s husband attempted to rescue two men trapped in a well as a result of D’s negligence. Held: Wilmer LJ: D has to show that C’s conduct was so foolhardy as to amount to a wholly unreasonable disregard for his own safety. Danger invites rescue – the court should not be astute to accept criticism of a rescuer’s conduct!

Answer 86

• ‘Just and equitable’ must be interpreted according to C’s blameworthiness and the causative potency of his actin relation to the damage

Answer 87

ϖ Lord Reid: in determining what is just and equitable, regard must be had to the blameworthiness of each party as well as the relative importance of his acts in causing the damage. Commentary: hence it is clear apportionment is based on causation and fault.

Answer 88

ϖ Lord Denning: consideration should be given to i) the causative potency of the factor ii) C’s blameworthiness. (a) If evidence shows that C’s failure did NOT contribute to the damage, then no reduction of damage should be available to D (100% liability). (b) If C’s failure made all the difference as the damage would have been prevented altogether but for the failure, the damages should be reduced by 25%! This is the present case! (c) If C’s failure made a considerable difference, the damages to C should be reduced by 15% Commentary: the numbers are arbitrary. Oliphant: the purpose of the numbers is to prevent the case from being seen as applying abstract criteria in limiting compensation payable to V

Answer 89

ϖ D admitted liability for a claim arising out of a road traffic accident. C was not wearing a seat belt and had another person on his lap (also not wearing a seat belt) in the front passenger seat of the car the deceased was driving. Held: there should be no deduction for contributory negligence on the basis that it had not been shown on the balance of probabilities that wearing a belt would have reduced the injuries sustained. Commentary: this confirms the first point in Froom.

Answer 90

ϖ EU case) passengers were killed or injured in a car accident in Finland. Compensation was denied to two of them under Finnish law as they should have noticed the driver’s drunken state. Was the measure compatible with the EU directive in question? ECJ Held: V’s compensation should only be limited in ‘exceptional circumstances’. The limitation must be proportionate! Commentary: hence, it is an open question whether the current law fits Candolin! It remains unclear. The Froom apportionment scheme seems unlikely after Candolin – the 25% reduction may seem disproportionate!

Answer 91

ϖ decided after Candolin) Held: reduction of damages on the ground of CN prima facie fell within the ‘exceptional circumstances’ of Candolin

Answer 92

- This defence is grounded in a policy objection to allow those who engage in illegal activities to receive compensation when injured during the illegal activities. Nonetheless, not every single illegal act bars the defence (e.g. violation of traffic regulations) - Various approaches have been adopted by the court, with the most recent approach being an 2-staged approach which focuses on public policy

Answer 93

ϖ C was a victim of the Ladbroke train crash in 1999. C suffered minor physical injuries but later developed PTSD and RPI depression. C was driving a car after the incident, had an altercation with a drunken pedestrian. C obtained a knife and found the pedestrian and stabbed him to death. C was convicted of manslaughter on grounds of diminished responsibility. C was detained in hospital. C sued D who caused the crash, claiming loss of earnings during the detention, the conviction, damage to reputation, feelings of guilt and remorse, and an indemnity against claims made by V. FI Held: all claims are barred by legality. CA Held: loss of earnings claim could be acceptable. Others were barred. HL Held: Lord Hoffmann: 1) Illegality (ex turpi causa) expresses not so much a principle as a policy. 2) The narrower version is ‘you cannot recover for damage which is the consequence of a sentence imposed upon you for a criminal act’: Askey v Golden Wine. The case against compensating C is based on the inconsistency of requiring someone to be compensated for a sentence imposed because of his own personal responsibility for a criminal act. C’s loss of earnings, detention, conviction and damage to reputation are all claims of damages caused by the lawful sentence imposed on him for manslaughter. The narrow version applies. 3) The wider version is ‘you cannot recover for damages which is the consequence of your own criminal act’: Culnis’s case. This version is justified on the ground that it is offensive to public notions of the fair distribution of resources that C should be compensated for the consequences of his own criminal conduct! * *The facts which give rise to the claim must be inextricably linked/be an integral part or a necessarily direct consequence of the criminal activity. To determine whether D’s act merely provided the occasion for C to cause something is the same principle by which the law normally holds that even though damage would not have occurred but for D’s tortious act, D is not liable if the immediate cause was the deliberate act of C. The question is one of causation: can one say that, although C’s injury would not have happened but for the tortious conduct of D, it was caused by the criminal act of the C? Or is the position although the damage would not have happened without the criminal act of C, it was caused by the tortious act of D? This version covers the remaining damages in the case (e.g. indemnity and the feelings of guilt and remorse), as C’s liability to compensate V was an immediate inextricable consequence of his having intentionally killed him. 4) Hence, all claims are barred by illegality.

Answer 94

: a person is not entitled to be indemnified for the consequences of his criminal acts for which he has been found criminally responsible. C should not be entitled to an indemnity and damages for feelings of guilt and remorse.

Answer 95

where D’s behaviour played no part in the decision to order C to be detained, the illegality defence would NOT apply!

Answer 96

Rule: Two forms of this defence: I) Wider form: you cannot recover damages of your own criminal act. II) Narrow form: you cannot recover for damage arising from sentence, fine imposed on you as a result of your criminal act. This is a matter of criminal policy, otherwise there will be a clash with the criminal law. Here, the damages are excluded when the immediate cause is manslaughter. This is a question of policy and fairness. The ex turpi causa rule cannot be applied uniformly across all cases, but on a case-by-case basis

Answer 97

1) Under the narrow rule, loss earnings caused by detention could not be recovered. C brought that upon himself. General damages could not be recovered for other things which were the result of the arrest. 2) Yet, a claim of indemnity or a claim for damages for guilt of remorse must be considered under the wider form, which is based on public policy that C may not recover for illegal conduct. The illegality defence only applies if the injury is inextricably linked to criminal activity! The injury has to be a direct consequence/integral part of the criminal act (Saunders), otherwise the defence does NOT arise. If the illegal act only gives occasion to the injury, the defence does NOT apply! The test is: I. Caused by C: Can be it said that, although the damage would have not happened but for the tortious conduct of D, it was caused by the criminal act of C? II. Caused by D: Or is it, although the damage would not have happened but for the criminal act, it was caused by the tortious conduct of D? ⎝ If the damage was ultimately caused by C, the defence of ex turpi causa is available to D. ⎝ If the damage was ultimately caused by D, the defence is unavailable to D. 3) The result is that C could NOT recover under the wider form too. Nothing was recoverable.

Answer 98

ϖ C’s uncle (D) stole stuff into their getaway transit vehicle, whose door could not be shut. C assisted, holding onto the ladder. The vejicle was followed by X who witnessed the theft. C’s uncle (D) had to take a corner turn speedily. Cwas injured whilst holding on to the outside of the ‘getaway’ car speeding from the scene of a burglary in which C participated. Held: there is no DOC owed by one crime participant to another in an act done in furtherance of the common purpose. Where the character of a joint criminal enterprise is that a party might be subject to increased risk of harm, the harm could properly be said to be a result of them. The principle of illegality would provide a defence to D. There is no room for proportionality. It is also not a strict liability offence – D must be culpable. C’s claim was barred by illegality. Commentary: the injury was caused by the tortious act and criminal act. As it was ultimately caused by C’s criminal act of stealing, despite the ‘but-for’ causation of the tortious conduct of D, the test under the wider form of the ex turpi causa applies and the defence of illegality is available to D!

Answer 99

* C transferred £620k to the D (a trader), so D could use the money to bet on share price movements based on inside information (a crime). The information was not forthcoming, so the agreement was not carried out. C sought restitution of the money on the grounds that D had been unjustly enriched at his expense (ground of restitution was that the basis of the transfer had failed totally). D refused, claiming C was barred by illegality. * SC: C’s claim succeeded (unanimously) — “an order for restitution would not give effect to the illegal act or to any right derived from it.” All agreed he basis of the defence is preserving the integrity of the legal system. However, there was disagreement over whether the defence should be flexible and context dependent or certain and principled. 6:3 majority adopted the flexible approach:

Answer 100

o in determining whether a claim would harm the integrity of the legal system, need to consider: (i) the “underlying purpose of the prohibition transgressed”; (ii) “any other relevant public policies which may be rendered ineffective / less effective by denial of the claim”; and (iii) “the possibility of overkill unless the law is applied with a due sense of proportionality.” ♣ Uncertainty: cknowledged the trio of considerations might result in uncertainty, but considered the existing law was already uncertain and certainty was not a relevant consideration when dealing with people who were contemplating unlawful activity. ♣ Proportionality: Factors to be taken into account under proportionality include: (i) seriousness of the conduct; (ii) its centrality to any contract; (iii) whether there was a marked disparity in the parties’ respective culpability.

Answer 101

majority reasoning “far too vague and potentially far too wide to serve as the basis on which a person may be denied his legal rights. It converts a legal principle into an exercise of judicial discretion, in the process exhibiting all the vices of ‘complexity, uncertainty, arbitrariness and lack of transparency’ which Lord Toulson attributes to the present law.” ♣ Minority approach: Sumption noted that although the defence is “governed by rules of law, a considerable measure of flexibility is inherent in those rules.” They are, in particular, qualified by “principled exceptions for (i) cases in which the parties to the illegal act are not on the same legal footing and (ii) cases in which an overriding statutory policy requires that C should have a remedy notwithstanding his participation in the illegal act.”

Answer 102

• Uncertainty: noted above as a concern from Lord Sumption. Also uncertainty as to how the conditions are to be applied — how should the court determine the ‘reasons why conduct was made illegal’ and which ‘policies would be affected by denying the claim’. Virgo: “there is a significant danger that when applied by a judge they will not provide the guidance to judicial decision-making that is required of a legal principle.” o What room for other approaches? Mirza concerned unjust enrichment; not negligence — in negligence the Gray causation test has been used, rather than the Tinsley reliance test (which has presided in trusts etc.). Has Gray been overruled as a matter of tort law? Goudkamp — Toulson’s reasons leave little reason to suggest that his approach is confined to the law of unjust enrichment, but the lack of explicit denouncement may mean the causal analysis will continue to be employed in negligence “perhaps with the policy-based test being used as a cross-check.” • Indeed, it is unclear how the considerations were applied on the facts of Mirza itself. The majority did not identify policy behind insider dealing, nor policy reasons that would have been affected had the claim been denied, nor (explicitly) proportionality. Virgo: if these factors “collapse into an arbitrary choice without principled guidance” then we may have gone full circle in the development of the law and returned to something like the public conscience test. • Requires the court to weigh incommensurable factors: policy factors militating each way may be impossible to weigh — just because the judges can offer an answer in cases such as Hounga, does not make the task any more coherent. • Minority approach is to be preferred: it is essentially rule-based (applying where a claim is ‘tainted by illegality’) but with principled exceptions — both of which have been previously recognised. • Why did the court only believe two options were open to it? They only considered the Tinsely reliance approach and the policy-based approach (the two options taken by the court in Apotex) — why did they not consider a third option — e.g. the Canadian rule in Herbert v Hall. • Does not respect parliamentary sovereignty: Mirza in effect gives effect to the proposals that the LC advanced in its report, on which Parliament did not act. This makes the SC decision controversial.

Answer 103

* Against the minority ‘reliance’ approach: why should it matter that C relied on his / her illegality? To assert that C cannot do so, is merely to restate the test. Further, Goudkamp notes that whether C needs to rely on illegality to make their claim is often a matter of luck (i.e. whether it relates to an element of their cause of action or not). * Uncertainty may have some merit in this context: Lord Toulson pointed out that certainty may not be an overriding concern when considering those who are engaged in illegal conduct. Goudkamp: indeed, some criminal law theorists (discussing immunity defences to criminal law) think ambiguity is an asset, because it “may serve the useful purpose of deterring undesirable conduct by persons who in fact qualify for them … A chilling effect may have beneficial consequences". One response to this argument is that it may provoke litigation, which has its own costs. * Uncertainty may not cause litigation: in Jackson v Murray [2015] the SC made clear that where discretion is left to a first instance judge in making a decision, appellate courts must “recognise that different judges may legitimately take different views” and “those differing views should be respected, within the limits of reasonable disagreement.” An appellate court should only intervene when the decision reached was “not one which was reasonably open to it.” Since the policy-based test gives judges considerable freedom to decide which factors are material, the test is highly discretionary; so may be largely impervious to appellate review.

Answer 104

– C (14) had been trafficked to the UK from Africa. C was employed as a cleaner by D in conditions of modern slavery. Eventually C claimed against D for racial discrimination (a statutory tort, so illegality applied). CA: illegality doctrine barred C’s claim; C’s claim was ‘bound up’ with her working illegally — she had to rely on her illegality to bring her claim. SC overturned the CA: • Lord Wilson: a ‘balancing approach’ should be adopted to the illegality defence — the public policy factors for/against applying the defence on the facts of the case should be balanced. o The illegality defence rests on the foundation of public policy — it exists to preserve the integrity of the legal system and prevent Cs from profiting from their own wrongs. Neither of these concerns are operative here. Giving C compensation would not allow her to profit from her wrong in entering the employment contract. Whereas applying the defence would compromise the integrity of the legal system by making it appear that people in D’s position could make discriminatory employment contracts with impunity. o Public policy might sometimes countervail against the denial of tort claims on the basis of illegality. Public policy which militates against applying the illegality defence here: D was guilty of human trafficking, applying the defence would run counter to the prominent public policy against human trafficking and in favour of protection of its victims. • Lord Hughes and Carnwath: took a narrower approach and did not endorse a balancing exercise of public policy factors. They applied the inextricable link test to find that C’s claim was not inextricably linked to her illegality, so the defence did not apply.

Answer 105

* Inextricable link v causation: Hounga adopted the old ‘inextricable link’ test not the causation test in Gray. Lord Wilson doubted whether the causation test in Gray works better. * Lord Wilson’s balancing approach: this is radical — no court has ever before acknowledged there are public policy reasons against applying the illegality defence to the facts of a particular case. Bogg and Green suggest Lord Wilson’s judgment should be read broadly — the illegality defence should be capable of being disapplied where the tort in question offers specific protection to fundamental human rights. They go on to argue for an even broader application — e.g. policy factors behind statutory rights (e.g. as an employee) could be used to militate against the defence applying.

Answer 106

• should the illegality defence apply where C’s illegal act was breaching a patent. o Lord Sumption: ♣ Implicitly rejected Hounga without referring to it: the defence “is a rule of law and not a mere discretionary power” — it is based on policy “not on the perceived balance of merits between the parties to any particular dispute.” A proportionality based approach would lead to uncertainty and unpredictability. ♣ Can only apply where C’s unlawful act is criminal / quasi-criminal: it can’t apply where the act is a tort / breach of contract / breach of patent / strict liability offence. This is because it is “concerned with claims founded on acts which are contrary to the public law of the state and engage with the public interest.” o Lord Toulson dissented on the first point — “it is right to proceed carefully on a case by case basis, considering the policies which underlie the broad principle”. Hounga requires the court to ask: (i) what is the public policy which founds the defence; (ii) is there another aspect of policy to which the application of the defence would run counter.

Answer 107

Apotex is correctly decided on its facts and it’s correct that only criminal acts should engage the defence. However, rejecting the proportionality approach was obiter and minimal weight can be attached to it since Sumption didn’t mention Hounga. In many cases, the non-discretionary approach in Apotex will be appropriate, but in other cases where the tort in question protects the fundamental rights of C, the Hounga approach should apply — e.g. a claim against a public body that its negligence caused C’s death, as this would involve Art 2 considerations.

Answer 108

Exclusion of Liability It is possible to expressly exclude liability by contract between the parties.

Answer 109

• The general rule allowing exclusion is subject to significant exceptions from the Act, mainly s.2. o It is of vital importance that this only applies to business liability (s.1(3)), which means (i) liability arising from things gone in the course of business, (ii) occupation of a premises used for business purposes. o Where done on private premises, must be done so reasonably. • s.2(1): o Cannot contract out of death or personal injury resulting from negligence. • s.2(2): o For other loss or damage, the contract term/notice must satisfy the s.11 requirement of reasonableness. o Contract terms – s.11(1): ♣ ‘The term shall have been a fair and reasonable one to be included having regard to the circumstances which were, or ought reasonably have been, known to or in the contemplation of the parties when the contract was made.’ o Notices – s.11(3): ♣ ‘[The notice] should be fair and reasonable to allow reliance on it, having regard to all the circumstances obtaining when the liability arose or (but for the notice) would have arisen.’ • s.2(3): o Agreement to/awareness of a contract term or notice does not itself indicate voluntary assumption of risk.

Answer 110

the express exclusion by the surveyors was held unreasonable. Lord Griffiths suggested four factors by which to gauge unreasonableness 1. Unequal bargaining power; 2. Whether practicable to expect C to obtain independent advice; 3. Complexity of the task; 4. Practical consequences of striking down the disclaimer.

Answer 111

i) Review scope + definition of negligence (s.1(1) and 1(3)) ii) Go to s.2: death/personal injury liability cannot be excluded; person’s agreement CANNOT be taken to be a voluntary assumption of risk! VAR is separate from EOL!  if the clause fails the reasonableness test in s.11 and Schedule 2 then it has no effect iii) Show that the reasonableness test is failed (Schedule 2) iv) UCTA Reasonableness Test: Steward Gill v Horatio Myer & Co(the test applies to s.2 too) v) Considerations: small print (The Zinnia); insurance (The Flamar Pride); limitation/exclusion clause reasonability (George Mitchell v Finney Lock Seeds (interventionist, concerned with fault, insurance, disproportionality in terms of allocating risk, reliance on the clause, obscurity of the clause); Philips Products v Hyland (concerned with short notice, opportunity to familiarise with term, imposition of terms, insurance, choice); Photo Production v Securicor Transport (equal bargaining power between the parties hands-free); St Albans); meaning of the clause as a whole; enforcement of the clauses; Schedule 2 factors

Answer 112

1. Is the clause incorporated into the contract? 2. Is the liability in question covered by the clause? 3. Are there any cases or legislation regulating its effect?

Answer 113

An exclusion or limitation clause is only enforceable if it has been incorporated into the relevant contract. A party's standard terms are incorporated if they have been reasonably and fairly brought to the other party's attention. Even assuming that the "battle of the forms" has been won, if a party is trading on its standard terms an unusual or unclear exclusion clause may fail if it is not given a sufficient degree of prominence to put the other party on notice. The more unusual or onerous the clause, the more prominence it should be given.

Answer 114

The words used must clearly and unequivocally cover what they are intended to cover.1 The question for the court, in all cases, is whether the clause, on its true construction, extends to cover the obligation or liability that it seeks to exclude or restrict. So, for example, if a clause aims to exclude liability for negligence, it is advisable to include an express reference to "negligence"; general words such as "any loss" or a reference to loss "howsoever caused" may not be sufficient. Although recent cases indicate that an express reference to negligence will not always be required,2 clarity on the issue will assist in avoiding litigation on the scope of the exclusion clause.

Answer 115

UCTA 1977 CRA 2015

Answer 116

UCTA applies to commercial situations and is the most significant statutory control in this area. UCTA regulates the exclusion and restriction of liability for breach of express and implied contractual obligations and the common law duty of care (i.e. tort). UCTA regulates terms according to the area of liability that they attempt to exclude or restrict. These areas are considered below. Certain types of contracts are outside UCTA's scope

Answer 117

From 1 October 2015, the CRA covers all aspects of unfair terms in business-to-consumer contracts which had previously been covered by UCTA and the Unfair Terms in Consumer Contracts Regulations 1999. It deals with implied terms in relation to the quality of goods and services, including digital content, and regulates attempts on the part of a trader to exclude its liability for breach. The CRA also introduced a "fairness" test. Any term which causes "a significant imbalance" in the parties' respective positions, to the detriment of the consumer and in a way which is contrary to the requirement of good faith, will be regarded as "unfair". A term that is "unfair" is not binding on the consumer, and the consumer can treat it as struck out of the contract. The remainder of the contract will stand if it is capable of doing so according to the usual principles of severability.

Answer 118

It is not possible to exclude or restrict liability for death or personal injury resulting from negligence. In the case of other loss or damage resulting from negligence (e.g. financial loss or property damage), liability can be restricted, but only insofar as the term or notice satisfies the UCTA reasonableness test which is explained later in this guide. This rule applies in all circumstances, regardless of whether the term is in a contract or a non-contractual notice or whether the parties are dealing on standard terms or a bespoke contract. The rule applies regardless of whether the person to whom the exclusion is directed is a business or a consumer.

Answer 119

Bar on exclusion or restriction of negligence liability (1) A trader cannot by a term of a consumer contract or by a consumer notice exclude or restrict liability for death or personal injury resulting from negligence. (2) Where a term of a consumer contract, or a consumer notice, purports to exclude or restrict a trader’s liability for negligence, a person is not to be taken to have voluntarily accepted any risk merely because the person agreed to or knew about the term or notice. (3) In this section “personal injury” includes any disease and any impairment of physical or mental condition. (5) It is immaterial for the purposes of subsection (4)— (a) whether a breach of duty or obligation was inadvertent or intentional, or (b) whether liability for it arises directly or vicariously.

Answer 120

where the second injury is not tortious (e.g. a naturally occurring misfortune) then D will only be liable for the injury until it was overtaken by the supervening injury. • D’s negligence caused C an injury to his back. Before trial, C independently developed another back injury (not connected to the injury). HL: D was only liable for the back injury up until the time of the supervening non-tortious harm. Reasoning is based on the ‘vicissitudes principle’: damages should not place C in a better position than she would have been in if D’s tort had not occurred. When assessing damages, the court will speculate on the effects of injury and make reductions based on the likelihood that an illness would eventually cause the same effect anyway (e.g. if injury prevents C working, but a medical condition would likely force her to stop in 10 years anyway, a reduction will be made). Where a vicissitude is known to the court before trial, there is no need to speculate — the court can make an exact deduction. The vicissitudes principle only applies to innocent/non-tortious hypothetical or actual subsequent harms, hence the distinction between Jobling and Baker.

Answer 121

While Performance Cars is about causing part of a divisible injury, this is about a contribution to a single, indivisible injury. Williams v Bermuda Hospitals Board [2016] • Facts: C was admitted to hospital with appendicitis. The hospital was negligent in failing to diagnose the appendicitis and took more than 10hrs to operate. As a result, pus leaking from the appendix caused sepsis to set in and injury to C’s heart and lungs. Issue: some of the leakage was non-negligent (would have occurred anyway) and some was the result of the hospital’s negligence (in not operating fast enough). • Lord Toulson (PC): C’s injuries were indivisible (not greater / smaller depending on the amount of leakage). As such, Bonnington applied: “where D has been found to have caused or contributed to an indivisible injury, she will be held fully liable for it, even though there may well have been other contributing causes.” The hospital was liable for the full injury.

Answer 122

• Different rule: Lord Toulson followed Sarah Green’s approach that Bonnington is a straightforward application of ‘but for causation’. However, McBride disagrees — it is a different rule because it does not ask if D’s conduct is a but for cause, it asks ‘did D’s negligence make a material contribution to the state of affairs that resulted in C suffering an indivisible injury’? • Bonnington not solid authority: the PC note pneumoconiosis is a divisible disease, so Bonnington may just be a Performance Cars case where the HL went wrong in holding D liable for the whole injury, rather than just a part (i.e. he was a part cause on straightforward ‘but for’ causation). It may not be solid authority for a subversive rule now embedded in English law. o The PC should have been more cautious in light of Fairchild —“the courts depart from the ‘but for’ test for causation at their peril” it is therefore surprising that the PC were “so happy to depart from the ‘but for’ test in such a casual manner.”

Answer 123

critical of the result in Williams, but endorse the rule in Bonnington • Endorsement of Bonnington: “to the extent that the rule is asserted as a general principle for cases of indivisible injury it is correct and must be understood as employing a causal concept which is broader than but-for causation” E.g. where D1, D2, and D3 all independently poison C’s tea — two drops are sufficient to kill, one drop is not — C drinks the tea and dies. ‘Is the law to say that since no one was a necessary, but-for, cause of the death no one is responsible?’ • Criticism: they argue that where there is an indivisible injury, there should be two stages: (i) did D make a material contribution to an indivisible injury; (ii) “if the mechanism for an indivisible injury would have been complete absent the contribution due to wrongful conduct, no compensatory liability should be imposed even though the contribution should be recognised as a cause.” The PC only ask the first question, with the result that the D in Williams is liable, but if they asked the second question he might be absolved if he could show that prompt treatment would not have prevented sepsis. They’re trying to refine the scope of the exception.

Answer 124

it is considered an ‘indivisible injury’, so once C shows D is a ‘but for’ material cause, D is liable for the whole injury: • C worked for O2 and suffered from stress on the job. She repeatedly expressed her concerns to her employer. C eventually suffered a breakdown. CA: O2 was liable for stress related personal injury. o Foreseeability: Previous case Walker v Northumberland CC [1995] which stated that an employer would not be liable for an employee’s first breakdown (as it was not foreseeable) was overruled. Here, it was enough that C had previously complained about stress on the job and had communicated symptoms she was suffering. As such it was foreseeable. o Breach: even though O2 referred C to internal counselling, this was not enough to discharge their duty. Because D was complaining of severe stress, O2 should have used ‘managerial intervention’ — i.e. to investigate C’s case. Causation: there were a number of factors contributing to C’s breakdown — many of which were not related to the employer (e.g. stress in her home life). Here, the court found O2 made a “material contribution” to C’s breakdown and “tipped her over the edge.” I.e. this is an application of Bonnington — mental illness is an indivisible injury and because D was a material ‘but for’ cause, D was liable for the whole injury.

Answer 125

Fairchild should not have applied in Sienkiewicz — the justification in F was policy, but in S, the same policy concerns do not apply. • Same policy concerns don’t apply: There were not multiple Ds who had all breached their duties of care and at least one must have caused C’s meso, nor was it the case that, absent liability, employers could expose employees to asbestos with impunity. • Corrective justice doesn’t militate toward an exception to the general causation rules: In S most of the exposure came from non-tortious background exposure, so imposing liability seems to violate the fundamental principle that negligence liability is based on corrective justice — it is not there to compensate people for misfortune. • Fairchild extended: Under S it seems possible for D to be liable for 100% of C’s meso, even if it were proven that he only increased C’s risk by 1%. This is a big extension of F.

Answer 126

points out that S does not Q well with Hotson denying recovery for loss of a chance. Loss of a chance of recovery and increased risk of contracting an illness are essentially the same thing, but the latter can be recovered under S whereas the former cannot under Hotson. S (coupled with the Compensation Act) is problematic in two other ways: • It is unjust against a D who expose C to a small risk (one week), but bears the whole loss because other Ds (who exposed D to asbestos for 10 years) have gone insolvent. • It is unfair on those who take longer to contract meso — joint and several liability results in huge compensation claims, causing employers (and insurance companies) to become insolvent. So those who contract the disease later will have no one to sue. Apportionment may have been better. NB: Compensation Act only applies to mesothelioma — in other cases where there is a similar ‘rock of uncertainty’ Barker will apply to apportion damages. E.g. Fairchild also applies where lung cancer (not mesothelioma) is caused by asbestos fibres, but damages are apportioned under Baker.

Answer 127

* C had been exposed to asbestos fibres by six employers, leading to lung cancer. On a balance of probabilities, it was agreed that he would not have developed lung cancer if he had not been exposed to asbestos. His working exposure to asbestos (from all six) accounted for 35% of his total exposure. CA: Once it is established on a balance of probabilities that lung cancer was caused by asbestos, a similar ‘rock of uncertainty’ exists so Fairchild should apply and D does not have to show that an employer who negligently exposed him to asbestos was a ‘but for’ cause. * The proof of causation test for other occupational cancers remains as that set out by Swift LJ in Jones v SS for Energy [2012] — namely that occupational exposure must be held to have “doubled the risk”, compared background reasons. Interestingly, Ds argued Fairchild/Baker should apply so they would be liable only for apportionment damages — C argued there was no evidentiary difficulty and Bonnington should apply (i.e. Ds made a material contribution to the disease and so C could claim for the whole damage). Bonnington could not apply because asbestos exposure is not proportionate the severity of the disease — unlike silica dust, the builds up of which is proportion to the severity of the condition.

Answer 128

• C’s developed pleural plaques as a result of asbestos exposure. The presence of pleural plaques is not harmful, but they indicated an increased risk of developing meso. HL: rejected the argument that Fairchild allowed recovery for an increase of risk alone — the actionable damage is the mesothelioma, not the increase in risk itself. D is not liable for increasing the risk of an injury which has not yet eventuated.

Answer 129

C cannot access damages for meso at a time when she can actually use them; in many cases it will be her estate that collects the damages after her death. Advantage: the risk may never eventuate — if the court compensates C for the mere risk, this may constitute a windfall (if C never develops meso) or C may get inadequate damages (where she develops meso, but the court gives reduced damages as they only compensate for increased risk).

Answer 130

argues against the decision in Rothwell: the requirement of actual personal injury should be dropped in relation to latent illness cases — the gist of the damage should be the creation of a latent bodily condition which is certain to produce future physical changes. [RH: this does not deal with the fact that pleural placques do not definitely mean C will get meso].

Answer 131

IEG were liable for £250,000 to an employee for exposing him to asbestos for 27 years. He ultimately developed mesothelioma. IEG sought to pass on the cost to their insurers — they were covered by two companies during this time. Zurich, one of the insurers, argued it was only liable for a proportion of IEG’s liability as it only covered IEG for 6 of the 27 years (22%) SC: • Question 1: was the Barker rule still good at common law in Guernsey, where the Compensation Act did not apply? Yes. Lord Mance: “if Barker remains good law, then IEG’s liability in respect of the six years of Zurich cover was and is for a proportionate part (22%) of the full compensation which IEG in fact paid.” • Question 2: (obiter) what would have been the position in English Law, where the Compensation Act applies? By a 4:3 majority held that where an employer has insurance for only part of a period of tortious exposure, he can claim against the insurer for the full liability. However, the insurer can seek a contribution from any other insurers who covered the employer during the period of exposure and, where the employer is uninsured for a period, he is treated as an insurer for these purposes (i.e. will have to make a contribution).

Answer 132

* Fairchild case produced uncertainty: The majority in Zurich thought it was permissible to relax orthodox principles within the Fairchild enclave — e.g. co-insurers who are at risk at different times may be liable to pay a contribution despite not normally having to co-ordinate liabilities. One question therefore is what other conventional principles might have to be relaxed within this enclave? Stapleton: uncertainty is the inevitable result of developing the common law. However, Goudcamp thinks some uncertainty may be necessary but “it all depends on the magnitude of the uncertainty created and the length of time for which it is likely to persist.” In the case of Fairchild, the uncertainty has been protracted. * Judicial reallocation: legacy of Fairchild has been the judicial reallocation of money on a “staggeringly large scale from shareholders of insurance companies to mesothelioma victims.” * Lord Hoffmann, one of the architects of the Fairchild rule has extra-judicially doubted whether the HL did the right thing — it might have been better not to forge an exception which has created a great deal of uncertainty; doing so would have “left the legislature to grapple with it.” He noted it was “inconsistent with the judicial function to develop arbitrary rules” — which the HL (now SC) have seemed to do in trying to erect a fence around the Fairchild enclave.

Answer 133

1. Hypothetical gain lost in Allied Maples is measurable in a way that physical injury is not. In injury cases there is no evidence of what would have happened to C if the doctor’s negligence had not occurred — there’s a better than 50% chance C would have been no better off. Damages will always be either over inclusive (C beats odds and recovers as in Gregg) or under inclusive (C would have recovered but for D’s negligence and has not just lost a chance, but actual recovery). 2. Hill: in medical cases statistics are general, not personal. In Allied Maples, C could show what financial gain they specifically could have made had they not been denied the chance of negotiating for it. As Croom-Johnson LJ points out in Hotson, a medical 25% chance of recovery means 25/100 people in C’s position will recover — C cannot show whether he is one of the lucky 25, so he cannot show that D’s negligence made a difference to the outcome. Thus, the statistical ‘chance’ is not really a ‘chance’ at all. In Allied Maples, it is not the case that the outcome was pre-determined but C cannot prove what the outcome was (as in Hotson / Gregg); C could have had a chance at a different outcome but for D’s negligence.

Answer 134

• The result in Hotson means D can ignore his duty of care with impunity if his patient has a less than 50% chance of recovery to start with. Further, the HL dealt with the issue using principles of causation — they treated the gist of the damage as C’s paralysis, rather than a loss of a chance of avoiding paralysis. If they’d have recognised the loss of a chance as actionable damage, no causation principles need distorting — C must prove on the balance of probabilities that but for D’s breach he wouldn’t have lost his chance of recovery. C must prove causation in relation to the lost chance rather than the eventual injury as the gist damage. • The damages would reflect the ‘gist’ — only a portion of the total damages recoverable if the gist were the injury itself. E.g. a loss of a 40% chance would result in 40% of the damages for the actual injury. This doesn’t violate causation, but does reflect the true value of the loss which D has caused C to suffer. It is a compromise that ensures justice for both C and D. o Hill: Stapleton’s argument ignores the statistical nature of medical data — the individual C was always in the unlucky/lucky number, there is just no way to prove which. If C was in the unlucky number, he has lost no chance, so it’s hard to see how the chance can form the gist as Stapleton argues. A statistical chance has no compensable value.

Answer 135

under Hotson, the line between 49% / 50% patients is unjustifiable. To solve this, bands of recovery should be used — if C had a likelihood of recovery but for D’s negligence he should get 10% damages for the eventual injury etc. This would avoid the need for mathematical precision making cases long, complex, expensive and uncertain as identified in Hotson. NB: this was the approach taken by the trial judge in Hotson. Thought: difference between cases best explained by the fact that there is no third party in Hotson – chance itself, rather than the access to the chance as in Allied Maples.

Answer 136

Green: the HL didn’t slam the door in Gregg so might go a different way in a more amenable case.

Answer 137

Chester allowed recovery for a failure to warn of a 1-2% risk during a back surgery, as long as C can show she would have delayed the surgery if warned.

Answer 138

D (surgeon) failed to warn C of a l-2% risk of paralysis during a back surgery. D carried out the surgery non-negligently, but the risk materialised and C was disabled. C admitted that if she had been warned, she would have had the surgery, but at a later date. HL: D was liable for his failure to warn. • Majority: accepted this was a departure from normal ‘but for’ causation on policy grounds — i.e. to uphold a doctors’ duty to warn patients of surgical risk. o Lord Steyn: “her right of autonomy and dignity can and ought to be vindicated by a narrow and modest departure from traditional causation principles”. But for the failure to warn, C would have had the surgery, but on a different day, when she would have only been exposed to a 1-2% risk of injury. Thus D caused the injury. o Lord Hope: sufficient for C to prove that she would not have consented to the operation at the time it was performed; not that she would never have had the operation. “The issue of causation cannot be separated from issues about policy” and D should be liable as a matter of policy — otherwise doctors’ could fail to warn with impunity, particularly where Cs are honest and say they would still have had the operation. “The function of the law is to enable rights to be vindicated and to provide remedies when duties have been breached.” • Minority: Lord Hoffmann dissented on causation principles: if C would have had the surgery anyway, then the failure to warn did not cause her disability — her chances of suffering the disability are the same whether or not D warned her of it. o Majority misunderstand statistics: Saying there should be liability in this case is the same as saying that, if you go into a casino and find out your chances of a particular number coming up and do not like the odds, you go to a different casino and expect different odds. Absolutely nothing had changed in terms of the risk – same patient/surgeon/equipment/nurses/place. The timing is absolutely irrelevant to this risk. ♣ A similar Australian case involves C noting that, if aware of the risk, would have searched out the most experienced surgeon – this would be fine, as the risk itself has actually changed. The failure to warn thus made a tangible difference to the risk here, but not in the main case.

Answer 139

Stapleton the “but for” test for causation is over-exclusionary in cases where policy dictates C should be able to recover damages, which has led the courts to create complex, incoherent ad-hoc exceptions to it. The law of negligence should adopt a wider test of causation than ‘but for’.

Answer 140

• Negligent misevaluation of property led to a bank lending more than necessary. In the meantime, a massive drop in the property market, so worth significantly less than would have been, even if the negligent valuation had not occurred. • Despite this fiscal loss all being of a foreseeable type, the Court held that D was only liable for the difference between the negligent and non-negligent valuations. o This seems based on an ‘assumption of responsibility model’ – contracting out of the standard remoteness rules on what can be reasonably expected for D to undertake. NB: the occurrence does not have to be likely, only reasonably foreseeable (The Heron II).

Answer 141

2 contexts Present case where establishing physical damage increases likelihood of successful claim; Injury was only suffered later in time – so for limitation it may operate the other way

Answer 142

Vibration white finger… suffered by minors using drills Scheme set up to compensate for such injuries General award Services award C does not make any claim for services award and Ds his solicitors, and subsequently he is of the view that he should have brought a claim for the services award but it’s now too late (times out) so wants to sue solicitors for professional negligence Question: Has C suffered loss due to negligence of D Lord Briggs highlights issues with professional negligence as you’re having to live in a counter-factual world (if D had not been negligent, would C have (a) made and (b) succeeded in claim for services award? Notes some cases where enough to prove case on balance of probabilities You get everything or nothing But some cases where you get the loss of a chance/opportunity and in essence this case about whether this is balance of probability or opportunity cases. [19] Briggs says common law has not abandoned – law says you must prove balance of probabilities In essence difference between loss of chance If outcome depended on own outcome, you have to prove it on balance of probability (as methods within your control) and no justification from departing from normal process; In other cases where it is dependent on matters of third party, that ti type of situation where you will get a loss of a chance because you can’t prove what you would have done Present case falls in first category (depends on what C would have done) – would he take steps to turn non-negligent advice into an honest claim? Go back to trial judge and find C would not be able to bring an honest claim for services claim (would not overcome 6 tasks) and CA not justified in interfering with finding of fact as made by trial judge If case turns on action of C then C must prove case on balance of probabilities and turns on all or nothing; but in 3rd party claim, you are likely to get a loss of a chance but confined to this context

Tort of Negligence: Causation and Remoteness Flashcards

(166 cards)