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Viscount Simmonds Foreseeability Should Continue To Remoteness Law Essay

Viscount Simmonds Foreseeability Should Continue To Remoteness Law Essay

Published: 23rd March, 2015 Last Edited: 23rd March, 2015

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Having read the statement of Viscount Simmonds in Overseas Tankship (UK) v Morts Dock & Engineering Co Ltd (The Wagon Mound) [1961], I have come to some points which I am going to describe below. I will briefly explain the definition of some of the main consideration factors in question of understanding remoteness in a negligence case and give examples shown in the precedent. I will then conclude on expressing my personal opinion in relation to Lord Simmonds view and give my reasons.

In his speech, Lord Simmonds analyses the extent of reasonable foreseeability, its meaning and relevance. It is therefore important to define duty of care, some grave facts to consider that help one identify whether duty is owed, and explain reasonable foreseeability itself before thinking about applicability of it for remoteness.

As it stands, when it comes to negligence, the question of law is to establish the standard of duty of care owed by the defendant. What is a duty of care, however? Lord Atkin explained what is known as The Universal Test in Donoghue v Stevenson [1932]: 'You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who then in law is my neighbour? The answer seems to be persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are in question'. There are therefore various categories where the duty of care is owed, e.g. an adult owes a duty of care to a minor; a doctor owes a duty of care to his patients etc. All of these seem relatively clear and straight forward and there must not be many complications when establishing the standard of duty of care owed. The difficulty comes when deciding just how closely and directly our acts or omissions affect other people - random, unrelated, unacquainted passers-by? Does one generally owe a duty of care to another? The 'neighbour principle' that was established following Lord Atkin's statement in Donoghue v Stevenson [1932] seems to cover a large variety of situations (Hedley Byrne & Co v Heller and Partners [1964]; Home Office v Dorset Yacht Co Ltd [1970]). Take for example a road accident case such as Mansfield v Weetabix [1997]. In the circumstances it was held that the driver was not at fault, as he was unaware of the effect his illness had on his driving. However, if a doctor gave him an appropriate advice, it would have been the driver's responsibility to ensure he is fit enough to drive - that he satisfies the criteria of a competent driver. We see this in the example of Roberts v Ramsbottom [1980], where one of the reasons why the driver was held liable, was that he knew he had been taken ill and was therefore negligent in not stopping the car and let it collide with other vehicles. Further to The Universal Test, The Two Stage Test was put in place by Lord Wilberforce in Anns v Merton London Borough Council [1978], which was later overruled in Murphy v Brentwood District Council [1991]. A new and the current test was formulated in Caparo Industries plc v Dickman [1990] - The Three Stage Test. It is now used to establish whether the duty of care is owed and it was suggested by the House of Lords to use this test as the universal test (Marc Rich & Co AG and others v Bishop Rock Marine Co Ltd and others, The Nicholas H [1995]). This test outlines three main components that must be taken into account when deciding whether a duty of care exists: reasonable foreseeability, proximity and whether it is 'fair, just and reasonable' for the law to impose a duty in the circumstances. Foreseeability in itself and automatically does not mean that a duty is owed (Lord Wilberforce in McCoughlin v O'Brian and others [1982]).

Foreseeability in relation to duty of care was explained by Lord Reid in McKew v Holland & Hannen & Cubitts (Scotland) Ltd [1969]: 'A defender is not liable for a consequence of a kind which is not foreseeable. But it does not follow that he is liable for every consequence which a reasonable man could foresee'. A reasonable man in this case is an objective view (in oppose to that of a defendant's - subjective), where a reasonable man is an average competent person, a hypothetical man. Lord Macmillan described the definition of a reasonable man in Corporation of Glasgow v Muir [1943].

Foreseeability is the main factor that links the events together and shows whether a duty of care is owed or not. It identifies the probability of the events taking place and who was more likely to be affected, if anyone at all. Later can only be established by, what is legally known as, proximity. The test of foreseeability acts as a filter in the gradatim of the decision making process in the case and is the first factor to consider in the Three Stage Rule. It can be said, in my opinion, that something foreseeable cannot be too remote as long as it brings us to the same result, i.e. A's actions or omissions cause B's loss. I must emphasise, however, that such circumstances are subject to other criteria such as legal and factual causation and, of course, proximity. One must prove that an act or a failure have caused that particular outcome and show how different the situation would have been if it wasn't for one's actions or failure to do something - the 'But For' test. If damage was done, which could have been foreseen, the ends of A's wrong and B's claim can easily be brought together so long there is enough proximity between these two events.

Before moving on to conclusion, I would like to mention one other vital step of the process - causation, both factual and legal. In order to establish foreseeability one must ensure that it was 'X' that caused the problem. Causation in itself allows foreseeability and identification of remoteness and could well be the most important ingredient of the remoteness test, for there can be no harm without a cause. The 'But For' test is also used to identify the connection between the damage and the claim. Great examples are Barnett v Chelsea and Kensington Hospital Management Committee [1968] and Bolitho v City & Hackney Health Authority [1998]. However, this chain can be broken by a number of events, provided they are unforeseeable: act of G-d/natural events (Jobling v Associated Diaries Ltd [1982]), act of a third party (Knightly v Jones [1982]), act of the claimant (Sayers v Harlow UDC [1958]). Another equally important point to take into account is balance of probabilities, as it no less plays an essential role (Wilsher v Essex Area Health Authority [1988]). In case of Hotson v East Berks AHA [1987] the Lords have decided to award 25 per cent as the claimant had 75 per cent chance to develop the disability independently of the doctor's actions at the time of the initial diagnosis and the delays caused.

And finally, what is remoteness?

I would like to conclude by taking into account all of the above points and their brief explanation. It has become clear that remoteness cannot be found without all of the above put together and used as a formula (as well as a number of other factors, which were not mentioned here, e.g. breach of duty, particular claimants etc), whereby foreseeability is one of its key components; however, it seems that reasonable foreseeability is one point that can indicate just how worthy it is to consider the case, as the facts of a case can be too remote from each other to even hear them. I would therefore agree that foreseeability should continue to be the applicable test for remoteness; that foreseeability is the correct "tool to measure" remoteness. With regard to Lord Simmonds' remark of foreseeability not being consonant with current ideas and morality (Lord Simmonds: '[I]t does not seem consonant with current ideas of justice or morality that, … the actor should be liable for all consequences, however unforeseeable and however grave, so long as they can be said to be "direct".'), I would disagree. I believe that foreseeability makes society more cautious and responsible, which could not be more consonant and unrepugnant with modern views and standards and can potentially help avoid many conflicts.

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Карточки Tort 4: Negligence: causation and remoteness of damage

Tort 4: Negligence: causation and remoteness of damage

essential links between the breach of the obligation imposed by law and the damage. It is commonly said that causation is essentially a factual and logical question, but that remoteness is a legal question, based on policy considerations about the appropriate extent of a D's liability.

Fairchild v Glenhaven Funeral Services Ltd [2002]

Lord Hoffmann has recently stated that 'the rules laying down causal requirements are. creatures of the law' and that 'it is possible to explain their content on the grounds of fairness and justice in exactly the same way as the other conditions of liability'

factors: which led to liability (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 to prevent C inhaling asbestos dust because of known risk that asbestos dust (if inhaled) might cause a mesothelioma, and (3) both A and B BOD to C during periods of C's employment by each of them with result that during both periods C inhaled excessive quantities of asbestos dust, and (4) C mesothelioma (5) cause of C's mesothelioma other asbestos can be discounted (6) cannot prove causation BOP

basic rule of causation stated negatively VIMP but fir

If the damage would not have occurred but for BOD, then the breach of duty is a cause of the damage. For this reason, the basic rule is often referred to as the 'but for test'.

It is for the C to show that the breach of duty was the cause of the damage, and not for the D to show that the breach of duty was not the cause of the damage.
proof BOP

things to consider when BOD consists of failure to do something

i. what the natural course of events would have been if the D had behaved properly.
- Barnett v Kensington and Chelsea Hospital [1969]
The Ogopogo [1971]:Would the C have perished in the cold water before even a competent rescuer could have saved her?

ii. how the D would subsequently have behaved if he had done what he should have done in performance of the duty.
Bolitho v City and Hackney Heath Authority [1998]

iii. how the C would subsequently have behaved if the D had done what should have been done.
McWilliams v Sir William Arrol [1962]
Chester v Afshar

iv. how other people would have behaved if the D had done what should have been done. Here the test may be different, and this will be considered shortly
Spring v Guardian Assurance plc [1995]
Allied Maples v Simmons & Simmons [1995]

Barnett v Kensington and Chelsea Hospital [1969]
Barnett went to hospital complaining of severe stomach pains and vomiting. He was seen by a nurse who telephoned the doctor on duty. The doctor told her to send him home and contact his GP in the morning. Mr Barnett died five hours later from arsenic poisoning. Had the doctor examined Mr Barnett at the time there would have been nothing the doctor could have done to save him.

The hospital was not liable as the doctor's failure to examine the patient did not cause his death.

doctor in breach of her duty failed to attend a patient, but she successfully argued that action she would in fact have taken if she had attended would not have been N (because it was in accordance with a respectable body of professional opinion) and would not have saved patient. child would therefore still have been dead even if she had performed her duty by attending. Therefore her culpable failure to attend was not a cause of death.

Introduced the 'but for' test ie would the result have occurred but for the act or omission of the defendant? If yes, the defendant is not liable.

McWilliams v Sir William Arrol [1962]
iii. There may be doubt about how the C would subsequently have behaved if the D had done what should have been done.

A steel erector had fallen seventy feet to his death from a steel lattice tower. The employers had not provided a safety harness, but the judge found that he would not have used a security belt even if provided, and that the onus was on the pursuer to prove that the deceased would have worn a safety belt.

claim failed. The onus was on the pursuer to establish, not only the breach of duty, but also the causal connection between the breach of duty and the accident; that what the deceased would have done, if a safety belt had been provided, was a matter of inference from the appropriate facts, and that, in the present case, the inference was that he would not have worn a belt; further that there was no obligation on the employers to instruct or exhort him to wear a safety belt. Liability was not established.

Chester v Afshar
iii. There may be doubt about how the C would subsequently have behaved if the D had done what should have been done.

majority of the HL took a view very favourable to the C. policy reasons for this view. The surgeon had advised the C to undergo surgery but in breach of duty had failed to advise her of the risk. The C did not show that she would probably never have had the operation, but she did show that she would have taken her time and consulted friends and therefore would not have had the actual operation on the particular day that she did have it. The HL held that she had therefore established that the breach of duty was a cause of her injury. Notice however that the sort of injury was something that happened on very rare occasions for no very obvious reason. The result would surely have been different if the injury had been due to some previously unknown peculiarity of the C, so that it might well have happened to her even if the operation had been postponed and performed on a different day.

C steps into the road immediately in front of a car: the driver is exceeding the speed limit and talking on her mobile phone. C is struck and injured. Is D liable for the injuries?

The driver is doing two things that are criminal (speeding and using her mobile phone while driving). This does not necessarily mean that they are Tious (see Chapter 1). However the courts may take the view that Parliament has set a proper standard and failure to observe it must therefore be a breach of civil duty of care. There is some authority (about 50 years ago) that exceeding the speed limit is not necessarily negligent (because in the particular circumstances reasonable care was shown), but in the present climate of opinion about speeding, this might be difficult to apply. The main issue is that D cannot be liable unless C shows on a balance of probabilities that D would have been able to stop if she had not been speeding and using her phone.

C collapsed with chest pains. D did not call an ambulance, but gave C a large glass of brandy. C dies. What more do we need to know in order to establish the cause of C's death?

might be important to know whether the brandy caused the death (in which case the important issue is whether administering brandy was a breach of duty) or whether the brandy was irrelevant and the cause of death was a failure to call for an ambulance in the sense that medical treatment would have saved C (in which case the important issue is whether such failure was a breach of duty -).

C is employed by D. D in breach of duty has stopped providing safety helmets because they were rarely worn. C falls to the ground and suffers serious head injuries. Advise C.

similar to McWilliams v Sir William Arroll.

Hotson v East Berkshire Area Health Authority [1987]. what is meant by damages?

Hotson injured his hip in a fall (no T was involved). The hospital failed correctly to diagnose and treat his injury for some days. In due course he suffered a wasting (necrosis) of the hip leading to permanent disability. This was caused by the original injury, but was it caused by the negligent failure to treat him immediately? The judge (unusually) assessed the chances. There was a 25% chance that he would have recovered if treated properly, but a 75% chance that he would not.

He and the Court of Appeal awarded him 25% of the damages that would have been payable if the hospital had caused the necrosis. The HL disagreed and awarded him nothing (apart from a small sum for the pain suffered during the days of delay)

but for test is all or nothing on BOP

When then are damages for loss of a chance recoverable?

when the courts have identified an item of damage as being caused by a T, then the measure of damages (the amount of money awarded in compensation) reflects the loss of future chances.

For instance, if the C has proved that the T caused physical injuries leading to permanent unemployment, then the amount of money paid in compensation will be based on the chances of future employment, and not on proof that on a balance of probabilities he would have had a particular career.
v Guardian Assurance plc [1995]

Spring v Guardian Assurance plc [1995]
loss was economic rather than physical

C would not have to prove that the negligent reference supplied to prospective employers caused him not to be appointed to a post, but that he would be compensated for the loss of a chance of future employment.

Allied Maples v Simmons & Simmons [1995]
loss was economic rather than physical

D solicitors were acting for the C in a takeover of the Gillow group of companies. The D's failed to warn the C of potential liability that may arise under the transaction. The transaction was completed and risk of liability became a reality leaving the C liable to pay substantial sums. The C sought to recover some of this from the D arguing that if they had been advised correctly there was a chance that they would have been able to negotiate out of the liability.

claimant was entitled to recover a sum to reflect their loss of a chance of negotiating out of liability.

Where the result depends on what a third party would have done in a hypothetical situation, the claimant only has to demonstrate that there was a more than speculative chance rather than on the balance of probabilities. The assessment of the chance will be reflected in the damages.

Cutler v Vauxhall Motors [1970]
followed by Hotson

Ds injured the C who as a result had an operation for varicose veins. He would, more likely than not, have required such an operation in a few years' time even if the injury had not occurred.

majority of the court held that the operation was not caused by the Ds' breach of duty. Case can be relevant only where the damage is a 'one-off' event such as an operation from which the C fully recovers. If the breach of duty causes the C, for example, to lose a leg which would probably have had to be amputated in a few years anyway, the C is certainly entitled to damages at least for the additional years without a leg.

Held: He was successful in claiming for the accident but not for the varicose vein and operation because he already had a propensity for the condition and so the breach of duty of care had not caused the operation. [Lord Russell dissented saying that the operation had become a certainty because of the accident whereas otherwise it would only have been a probability i.e. but for the accident it might never have to be done.]

C, aged 21 and in her final year at university, is swimming in a council swimming pool. She suffers cramp and starts to drown. The lifeguard employed by the council is not at his post. C is eventually rescued but has suffered brain damage and will need constant care. It is possible that, if the lifeguard had been there, she would have been rescued in time to prevent the brain damage. It is possible that she would have had an excellent degree and realised her ambition of working as a solicitor in a large City firm. Advise C.

It is important to distinguish the two issues. She has to prove on a balance of probabilities that she would not have suffered the actual damage (the head injuries) if the lifeguard had carried out a careful rescue. But in turning this head damage into money it is not necessary to show that she would probably have become a solicitor.

Jobling v Associated Diaries Ltd [1982]

injured in an industrial accident and permanently disabled. Some years later, before damages had been assessed, he was found to be suffering from a disabling disease that rendered him unfit for work.

House decided that the D was not required to compensate for the losses after the onset of this disease. The House was critical of (but did not overrule) the earlier decision in Baker.

NOTE: Damages are assessed once and for all so that if they are calculated and the case disposed of by settlement or by litigation before the second event occurs, the assessment will not be reopened

Baker v Willoughby [1970]
Baker's leg had been permanently damaged in a road accident. He had to change his job and was shot by robbers (who were of course Tfeasors but were never found) and as a result his leg was amputated.

House had held that the damage was not subsumed in the new T, but the negligent motorist continued to be answerable for the damage to the leg (and its continuing economic and other consequences). There would be an obvious harshness if Baker were to lose his damages because he was the victim of two Ts and not just one, but it is not easy to formulate a principle explaining why Baker's claim was not extinguished, but Jobling's was.

necessary to stress that both cases were concerned with continuing liability for the consequences of the original injury and not with liability for the additional consequences of the second injury. It was not for instance argued that the D in Baker was liable for the amputation.

C is knocked down by D, a careless motorist. Because of his injuries he has to give up his job as a financial analyst and is unemployed. He is walking on the beach when he is struck by a freak wave. He suffers severe head injuries that would make him unemployable. Advise C.

This case falls between Baker v Willoughby and Jobling v Associated Dairies. The second event is not a natural disease and it is not a T. You have to decide which authority should be applied to these facts. Both views are arguable.

Canadian case of Cook v Lewis [1951]

nly one shot hits Conrad and the other misses, but it is impossible to tell which is which. He was therefore the victim of a T, but it is impossible to say who the Tfeasor was.

nly one shot hits Conrad and the other misses, but it is impossible to tell which is which. He was therefore the victim of a T, but it is impossible to say who the Tfeasor was.

illustration of a difficult problem, which arises where:
a. the D has been guilty of negligence
b. there has been damage of a kind which it is known can be caused by negligence of that kind, and
c. there is no evidence as to whether in this case the damage was in fact caused by the negligence. This lack of proof may be because something else happened at the same time which obscures the position, or because medical science has not reached the point where it can be certain of the causation of the disease.

Fairchild v Glenhaven Funeral Services Ltd [2002] VIMP
Fairchild had worked for a number of different employers, as a subcontractor for Leeds City Council, all of whom had negligently exposed him to asbestos. Mr Fairchild contracted pleural mesothelioma. He died, and his W was suing the employers on his behalf for negligence. A number of other Cs were in similar situations, and joined in on the appeal. The problem was, a single asbestos fibre, inhaled at any time, can trigger mesothelioma. The risk of contracting an asbestos related disease increases depending on the amount of exposure to it. However, because of long latency periods (it takes 25 to 50 years before symptoms of disease become evident) it is impossible to know when the crucial moment was. It was impossible therefore for Mr Fairchild to point to any single employer and say ". it was him". Moreover, because the traditional test of causation is to show that ". on the balance of probabilities". X has caused Y harm, it was impossible to say that any single employer was the cause at all. While it was possible to say ". it was one of them". it was impossible to say which. Under the normal causation test, none of them would be found, on the balance of probabilities to have caused the harm.

CA had held that for this reason causation could not be proved. However, the Lords held that, where there had been exposure by different employers but the precise causative point could not be identified, it was sufficient to find that the wrongdoing of each employer had materially increased the risk of contracting the disease.

Kuwait Airways Corporation v Iraqi Airways Co
comment on difficulty of causation

There is therefore no uniform causal requirement for liability in T. Instead, there are varying causal requirements, depending upon the basis and purpose of liability. One cannot separate questions of liability from questions of causation. They are inextricably connected. One is never simply liable; one is always liable for something and the rules which determine what one is liable for are as much part of the substantive law as the rules which determine which acts give rise to liability

March v E & MH Stramare Pty Ltd (1991) Australia: comment on difficulty of causation
possible multiple sources of cause

'but for' test gives rise to a well-known difficulty in cases where there are two or more acts or events which would each be sufficient to bring about the plaintiff's injury. The application of the test 'gives the result, contrary to common sense, that neither is a cause' application of the test proves to be either inadequate or troublesome in various situations in which there are multiple acts or events leading to the plaintiff's injury. The cases demonstrate the lesson of experience, namely, that the test, applied as an exclusive criterion of causation, yields unacceptable results and that the results which it yields must be tempered by the making of value judgments and the infusion of policy considerations.

McGhee v National Coal Board [1973]
McGhee had been employed by the National Coal Board for about 15 years, almost always working in pipe kilns. For some 4½ days he then worked at a brick kiln, giving up because of a dermatitic condition which had by then developed. The work inside the kiln was very hot and very dusty. The heat made men sweat profusely and the operation of the fan caused them to be covered in dust and grit. The pursuer contended that his dermatitis had been caused by his period of working in the brick kiln, short though it had been. The employers contended that his work had not caused the dermatitis and that it was non-occupational in origin. There was at the trial a conflict of medical evidence but the Lord Ordinary (Lord Kissen)

An employee contracted dermatitis having been required to empty brick kilns in dusty conditions. The medical evidence indicated that the cause had been repeated minor abrasions of the skin by particles of dust; the only way of avoiding the problem was the thorough washing of the skin after exposure to the dust. There were no adequate washing facilities at the workplace and the employee was unable to wash until he had returned home. While the medical evidence did not go so far as to establish that the employee would not have contracted dermatitis if he had been able to wash on site, it was held that the failure of the board to provide washing facilities on site had made a material contribution to the risk of injury. That was sufficient to prove causation.

Bonnington Castings Ltd v Wardlaw [1956]
material contribution test
a steel dresser had contracted pneumoconiosis as a result of exposure to silica dust emanating from both a pneumatic hammer and swing grinders. A statutory duty applied to the grinders, but not to the hammer. The issue was whether the dust that caused the injury came from the grinders or the hammer.

held that, on the balance of probabilities, dust from the grinders had materially contributed to the injury, and on that basis causation had been established.

McGhee: standard of proof

had proved all that he could and had established that the defenders' wrongdoing had put him at risk of the very kind of injury which befell him. To require more would have been to say that he could never recover for his injury - unless he achieved the impossible. Finally, as was recognised in McGhee ([1973] 1 WLR 1, 9B - C per Lord Simon, 12G per Lord Salmon), if the law did indeed impose a standard of proof that no pursuer could ever satisfy, then, so far as the civil law is concerned, employers could with impunity negligently expose their workmen to the risk of dermatitis - or, far worse, of mesothelioma.

Wilsher v Essex Area Health Authority [1988]
How do facts of Wilsher differ from McGhee

plaintiff had been born prematurely and placed in a special unit in a hospital managed by the defendants. It was necessary for him to be given extra oxygen but, unfortunately, due to mistakes on their part the staff administered too much oxygen. The plaintiff developed retrolental fibroplasia, which resulted in blindness. He claimed damages from the defendants on the basis that his condition had been caused by the unduly high level of oxygen. The evidence in the case showed that exposure to such a high level of oxygen increased the risk that the plaintiff would suffer retrolental fibroplasia. The evidence also showed, however, that the condition could occur in premature babies without any artificial administration of oxygen. More particularly, there was evidence to indicate a correlation between the occurrence of retrolental fibroplasia and four other conditions from which the plaintiff, like many other premature babies, suffered. Medical science had not, however, positively identified any causal mechanism linking those conditions and the development of retrolental fibroplasia.

McGhee: only one possible cause, here many. A failure to take preventative measures against one out of five possible causes is no evidence as to which of those five caused the injury.

"position, to my mind, is wholly different from that in the McGhee case [1973] 1 WLR 1, where there was only one candidate (brick dust) which could have caused the dermatitis, and the failure to take a precaution against brick dust causing dermatitis was followed by dermatitis caused by brick dust. In such a case, I can see the common sense, if not the logic, of holding that, in the absence of any other evidence, the failure to take the precaution caused or contributed to the dermatitis. To the extent that certain members of the HL decided the question on inferences from evidence or presumptions, I do not consider that the present case falls within their reasoning. A failure to take preventative measures against one out of five possible causes is no evidence as to which of those five caused the injury.

critical evaluation of Wilsher in Fairchild decision: "the justification for holding a defendant liable is that the defendant created a risk and that the injury suffered by the plaintiff fell squarely within that risk. "

purpose of the rules of causation

exclude those things that are not the cause of the damage. If the same damage would have been suffered even if there had been no breach of a duty of care, then the C loses. But the opposite is not true. Even if the damage would not have been suffered without the breach of duty (i.e. the breach of duty is a cause of the damage), it does not follow that the D is liable.

Re Polemis [1921] remoteness test

Some Stevedores 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. The arbitrator held that the causing of the spark could not have been anticipated and therefore no liability arose. The C appealed.

whether the damage was the direct consequence of the breach of duty. If it was merely indirect, particularly if there was something which 'broke the chain of causation', then the D was not liable.

original test was direct consequence of BOD. But in this case DM was not reasonably forseeable (dropping of board ignites spark=> fire) leads to unfairness.

The Wagon Mound (No 1) [1961]
overrules test in Re Polemis

Furnace oil had been negligently spilled from a ship in Sydney Harbour. The oil had been carried to nearby docks where welding operations were in progress. A piece of cotton waste caught fire, the temperature was raised sufficiently to ignite the oil and the resulting fire destroyed the docks and ships moored there.

overrules test in Re Polemis Furnace oil had been Nly spilled from a ship in Sydney Harbour. oil had been carried to nearby docks where welding operations were in progress. A piece of cotton waste caught fire, temperature was raised sufficiently to ignite oil and resulting fire destroyed docks and ships moored there.accepted test has been that D is liable for DM only if it was foreseeable consequence of BOD. Ds should be liable only for what could reasonably have been foreseen. PC. A test of foreseeability was (a) simpler and (b) more just,

Hughes v Lord Advocate considers Wagon Mound test

Two boys aged 8 and 10 went exploring an unattended man hole. The man hole had been left by workmen taking a break. It was surrounded by a tent and some paraffin lamps were left to warn road users of the danger. The boys took a lamp down the hole. One of them dropped the lamp and an unforeseeable explosion occurred resulting in extensive burns.

The damage was not too remote it was foreseeable that the boys may suffer a burn from the lamp. The fact that the burn resulted from an unforeseeable explosion did not prevent the type of damage being foreseeable.

Jolley v Sutton London Borough Council [2000]
e D council had in breach of duty failed after several months to remove a derelict cabin cruiser that had been abandoned on its land. The issue was whether the council could foresee only that small C would be injured by clambering over it, or whether (as actually happened) teenaged C would be injured by jacking it up and working underneath it in order to make it seaworthy.

e CA unanimously held that the accident was not foreseeable, the HL unanimously held that it was.

Qualifications of the basic test
House has again considered the problem and analysed both the Wagon Mound (No 1) and Hughes v Lord Advocate in Jolley v Sutton London Borough Council

it is not necessary to foresee precisely what happened. In particular it is not necessary to foresee either (i) the severity of the damage or (ii) the precise manner in which it occurred. It is sufficient if the injury is of the type that could be foreseen, even it came about in an unexpected way or was much more severe than expected.

Doughty v Turner Metal Manufacturing Company [1964]
illustrates difficulty of test

An asbestos lid was accidentally knocked into a cauldron of molten liquid. A few moments later an explosion occurred. The 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.

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.

Qualifications of the basic test
egg-shell skull cases

(i) the D is in breach of duty to the C
(ii) it was foreseeable that the C would suffer some physical injury
(iii) the particular C has a particular susceptibility or abnormality and as a result suffers more serious injury or injury of a different type from that which was foreseen, then the defendant is liable for that further injury.

eg: D has carelessly struck the C on the head. It is foreseeable that the C will suffer cuts and/or bruises. The particular C however has an exceptionally thin skull (an 'egg-shell' skull) and sustains a fractured skill and serious brain damage. That was not foreseeable, but the D is still liable for it.

Robinson v Post Office [1974]

Robinson v Post Office [1974]

D employed C who slipped on a ladder at work because of oil on the step. C suffered a minor injury. At hospital, he was given an anti-tetanus injection. He contracted encephalitis due to an allergy of which he was previously unaware.

hospital was negligent but not liable, since even the proper procedure would not have revealed the allergy. C's employers, on the other hand, were legally responsible for the encephalitis as well as for the minor injury: if a wrongdoer ought to foresee that as a result of his wrongful act the victim may require medical treatment then he is liable for the consequences of the treatment applied although he could not reasonably foresee those consequences.

case involves both a true causation point and an egg-shell skull point. The D was liable for the negligent grazing of the C's shin. The C had an unforeseeable allergy. The hospital administered an antitetanus injection without carrying out the appropriate tests. Robinson had an allergy to the injection and the reaction caused brain damage. There were two elements to the decision:

The evidence was that, even if the proper tests had been carried out, the allergy would not have been detected. Therefore the hospital's negligence was not a cause of the brain damage (i.e. the 'but for' test (see 4.1.1) was not satisfied.

Once the hospital's negligence was out of the way, the allergy was the equivalent of an egg-shell skull and, though it was unforeseeable, the D was nevertheless liable for it.

qualification of basic test
Financial weaknesses
What happens if the C has a financial rather than a physical weakness? If the D injures a C who happens, however unforeseeably, to be a leading soccer star whose career is ruined

then the D has, as with the egg- shell skull cases, 'to take the victim as he finds him', i.e. to compensate the C for his actual loss. What has to be foreseen is physical injuries that were result in loss of employment. Once that has happened, the D has to compensate for the actual loss suffered.

Lagden v O'Connor [2003]
D struck C's car. C being impecunious (poor) had to hire a car from a car hire company that charged more for the credit involved because C could not pay "up front". This arrangement was more expensive than one hired in the normal way, which C could not afford to do. Since 1933 the rule in Liesbosch Dredger case would not allow a D to suffer because of an impecuniosity of the C.

Liesbosch Dredger must now be regarded as overtaken by subsequent developments in the law. C won
allows extra compensation when person is poor for special circumstances.

nova causa interveniens or as novus actus interveniens

New and intervening cause
D negligently collides with C's car and injures him. On the way to the hospital the ambulance driver X crashes into a tree and causes C severe injuries. Or at the hospital a nurse Y administers to C the wrong dose of the drug and causes brain damage. Or a patient Z goes berserk and stabs C repeatedly. Is D liable not only for the original injuries but also for the more serious later injuries caused by X, Y or Z?

Dorset Yacht Co
v Home Office [1970] new and intervening cause analysis

case is usually analysed in terms of whether the borstal officers owed a duty of care to the owners of the yacht. Lord Reid reached the same conclusion by considering whether the acts of the boys were a new and intervening cause and deciding that they were not. He held that the original Tfeasor could be liable for intervening human conduct, whether that was criminal, negligent or innocent, but only if it was 'something very likely to happen: a mere foreseeable possibility was not enough'.

bearing in mind that [Littlewoods] had no control over the C and teenagers, was it reasonably foreseeable by [Littlewoods] that, by failing to keep the cinema lockfast and to inspect it regularly during the last half of June and the first few days of July 1976, C and young persons would not only enter it, but start a fire?

Wieland v Cyril Lord Carpets [1969]
plaintiff suffered injury from the admitted negligence of the D. After attending the hospital she felt shaken and the movement of her head was constricted by a collar which had been fitted to her neck. In consequence she was unable to use her bi-focal spectacles with her usual skill and she fell while descending stairs, sustaining further injury.

She was worried about catching public transport in such a condition and went to her son's office to ask for a lift home. On the way into the office she fell down a flight of stairs and was injured. The C was held to have been acting reasonably; the D was liable for those injuries.

In the present case I am concerned with the extent of harm suffered by the plaintiff as a result of actionable injury. In my view the injury and damage suffered because of the second fall are attributable to the original negligence of the D so as to attract compensation. If necessary I think the plaintiff's case can also be put against the D in another way. If it can be said that it is foreseeable that one injury may affect a person's ability to cope with the vicissitudes of life and thereby be a cause of another injury and if foreseeability is required, that is to say, if foreseeability is the right word in this context, foreseeability of the general nature will, in my view, suffice.

McKew v Holland & Hannen & Cubitts [1969]

C sustained an injury at work due to his employer's breach of duty. He strained his back and hips and his leg was prone to giving way. Whilst in this state he attempted to climb down a steep concrete staircase without a handrail unaided. He got part way down and felt his leg give way so he jumped 10 steps to the bottom. He suffered a fractured right ankle and was also left with a permanent disability. The D accepted liability for the injury sustained during his employment but disputed liability for the second injuries resulting from the C's action in jumping down the stairs.

C's action 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. The D was therefore not liable for the injuries resulting from the incident on the stairs.

A novus actus interveniens may take one of three forms.

(1) A NATURAL EVENT. The courts are reluctant to find that an intervening natural event breaks the chain of causation as the claimant has no one else to sue. If the defendant negligently starts a fire and strong winds cause the flames to spread to the claimant's property the court will not allow the wind to break the chain of causation. However, if the natural event causes damage simply because the breach of duty has placed the claimant in a position where the damage can be caused, the chain of causation will be broken, unless the natural event was likely to happen.
(2) ACT OF A THIRD PARTY. Where the D's duty is to guard the C or his property against damage from a 3P, the 3P act will not break the chain of causation. In Stansbie v Troman (1948), the D decorator was told to lock the door when be went out. He failed to do so and the C's jewellery was stolen. The thief's action did not break the chain of causation. See also Smith v Littlewoods (1957)


Kirkham v Chief Constable of Greater Manchester Police [1990]

alcoholic and suffered from depression. He had made a two suicide attempts on 6th Jan 1980. He was admitted to hospital but discharged himself the following day. When he arrived home his W prevented him from drinking and he became violent and started smashing furniture. The police were called and arrested him. His W informed them of his suicide attempts and discharging himself from hospital and it was agreed that he should be remanded in custody for his own safety. However, the police failed inform the prison authorities that Mr Kirkham was a suicide risk. He committed suicide whilst on remand at Risley Remand Centre. His W brought an action based on the negligence of the police in failing to pass on the information. The Police raised the defences of volenti non fit injuria and ex turpi causa.

C was successful. defence of volenti non fit injuria, although normally would apply where a person of sound mind were to take their own life, had no application where a person of unsound mind took their life. defence of ex turpi causa was not limited to illegal acts but extended also to immoral acts. Ct applied public conscience test and concluded that to allow C to succeed would not affront public conscience, or shock ordinary citizen. Lord Justice Lloyd: Where a man of sound mind injures himself in an unsuccessful suicide attempt, it is difficult to see why he should not be met by a plea of volenti non fit injuria. He has not only Cted risk of injury by another; he has inflicted injury himself. In Hyde v. Tameside Area Health Authority, C, who had made an unsuccessful suicide attempt, brought an action for DM against Health Authority alleging N on part of hospital staff. Lord Denning doubted whether a defence of volenti non fit injuria would be available in such a case ". where a man of sound mind commits suicide, his estate would be unable to maintain an action against hospital or prison authorities, as case might be. Volenti non fit injuria would provide them with a complete D. There should be no distinction between a successful attempt and an unsuccessful attempt at suicide. in present case Mr Kirkham was NOT of sound mind. Having regard to his mental state, he cannot, by his act, be said to have waived or abandoned any claim arising out of his suicide. So I would reject defence of volenti non fit injuria.

Volenti non fit injuria

a defence of limited application in tort law. A direct translation of the latin phrase volenti non fit injuria is, 'to one who volunteers, no harm is done'. Where the defence of volenti applies it operates as a complete defence absolving the Defendant of all liability. It is often stated that the Claimant consents to the the risk of harm, however, the defence of volenti is much more limited in its application and should not be confused with the defence of consent in relation to trespass.

The defence of volenti non fit injuria requires a freely entered and voluntary agreement by the Claimant, in full knowledge of the circumstances, to absolve the Defendant of all legal consequences of their actions. There is a considerable overlap with contributory negligence and since the introduction of the Law Reform (Contributory Negligence) Act 1945, the courts have been less willing to make a finding of volenti preferring to apportion loss between the parties rather than taking an all or nothing approach.

The requirements of the defence are thus:

3. Made in full knowledge of the nature and extent of the risk.

Reeves v Commissioner of
Police for the Metropolis [2000]
Martin Lynch committed suicide whilst in a police cell. He had attempted suicide earlier that day in the cells at the magistrates. He had also attempted suicide on previous occasions. He had been seen by a doctor at the police station on arrival who reported that he was not schizophrenic or depressed but was a suicide risk. The custody officer checked him at 1.57 pm and left the hatch open. He was found at 2.05 pm having used his shirt as a ligature secured by the open hatch. He was unable to be resuscitated and died a week later. The defendant argued that as Lynch was of sound mind his voluntary and informed act of suicide broke the chain of causation.

The act of suicide was the very thing that the police were under a duty to prevent to treat this as a novus actus interveniens would deprive the duty of any substance. Therefore the defendant was liable, however damages were reduced by 50% under the Law Reform (Contributory Negligence) Act 1945.

Cecil is injured in a road accident caused by the negligence of Delia. He is advised by the doctors not to return to work for three months. He is very conscientious and is bored at home, and his employer has a backlog of work. Cecil returns to work after a month, but two days later while working on a stepladder he turns dizzy and falls to the ground, breaking his arm. Is Delia liable for the broken arm?

Clear ly Delia's negligence satisfied the 'but for' test of causation, but does Cecil's decision amount to a new and intervening cause? Read McKew. Would you want to apply it to a conscientious as well as a foolhardy C?

McKew v Holland & Hannen & Cubitts [1969]
novus actus interveniens

If a man is injured in such a way that his leg may give way at any moment he must act reasonably and carefully. It is quite possible that in spite of all reasonable care his leg may give way in circumstances such that as a result he sustains further injury. Then that second injury was caused by his disability which in turn was caused by the defender's fault. But if the injured man acts unreasonably he cannot hold the defender liable for injury caused by his own unreasonable conduct. His unreasonable conduct is novus actus interveniens. The chain of causation has been broken and what follows must be regarded as caused by his own conduct and not by the defender's fault or the disability caused by it. Or one may say that unreasonable conduct of the pursuer and what follows from it is not the natural and probable result of the original fault of the defender or of the ensuing disability. I do not think that foreseeability comes into this. A defender is not liable for a consequence of a kind which is not foreseeable. But it does not follow that he is liable for every consequence which a reasonable man could foresee. What can be foreseen depends almost entirely on the facts of the case, and it is often easy to foresee unreasonable conduct or some other novus actus interveniens as being quite likely. But that does not mean that the defender must pay for damage caused by the novus actus.

question here is whether the second accident was caused by the Appellant doing something unreasonable. It was argued that the wrongdoer must take his victim as he finds him and that that applies not only to a thin skull but also to his intelligence. But I shall not deal with that argument because there is nothing in the evidence here to suggest that the Appellant is abnormally stupid. This case can be dealt with equally well by asking whether the Appellant did something which a moment's reflection would have shewn him was an unreasonable thing to do.

found that when the Appellant was at the top of the stairs he made a deliberate and voluntary— ". and apparently ". unnecessary ". —leap down ten steep steps of the tenement stairway. Upon this view he has held that the second accident was not a direct and probable result of the Appellant's first accident.

Village of Carterville v Cook

Liability- D village Nly maintained six-foot sidewalk without rails. 3rd party Nly bumped P and he fell off. [no railing and bumped (concurrent efficient causes); unintentional bump (DCE); systematic relationship between lack of railing and P falling in by accidental bump] Flip into Alexander v. Town of New Castle- this case would become that case if other kid had intentionally pushed him off sidewalk

systematic relationship between the negligence and the harm which were not superseded by the intervening torts

East suffolk Catchment Board v Kent

Board's men had taken 'quite ridiculous' steps (steps that 'no reasonable man would have adopted') to mend a sea wall after the D's fields were flooded. The C suffered much greater flood damage than he would have if they had acted carefully and competently. The D had a statutory power but no statutory duty to repair sea walls. The CA held the Ds liable for 'breach of duty to do their work with reasonable care and expedition'. But the D won in the HL:

no liability in N for damage that would have been avoided if they had acted reasonably. It seems that the Board would have been liable if the men had acted dishonestly, and it is clear that the Board would have been liable if they had unreasonably caused damage that would not have happened without their intervention.

This is indirectly related to an omission in the sense that they omitted to perform their duty correctly. However here the cause of the damage was the flood. cf Dutton v Bognor Regis UDC

Dutton v Bognor Regis UDC

Pure Economic Loss
Usually, courts would allow claims on consequential economic loss rather than pure economic loss.

- Mrs Dutton, the claimant suffered a financial loss because of the 'defect' in the foundations of the property due to the negligent inspections carried out by the inspector of Bognor Regis UDC.

After appealing, Mrs Dutton won the case because:
1) There was a threat of injury to health & safety
harm was probably the cause of the surveyor's carelessness.

Q: If the defective property was merely of low quality, and not dangerous to health, would there be liablity?

Redpath -v- Belfast and County Down Railway [1947]

C sought damages for personal injury. The D company sought to bring into account sums received by the C from a distress fund to which members of the public had contributed. C's counsel were said to having submitted: ". that it would be startling to the subscribers to that fund if they were to be told that their contributions were really made in ease and for the benefit of the N railway company. To this last submission I would only add that if the proposition contended for by the Ds is sound the inevitable consequence in the case of future disasters of a similar character would be that the springs of private charity would be found to be largely if not entirely dried up.".

Held: Gifts made by others to relieve the distress of the plaintiff were not to reduce the damages payable by the defendant.

Stapley v Gypsum Mines [1953] AC 663 House of Lords

Mr Stapley was killed when a roof of a mine fell on top of him. At the time of his death he was acting against his employers orders. He and another employee Mr Dale had been told to bring the roof down as it was dangerous. The pair knew that this meant that they should not to work in that part of the mine because of the risk. They attempted to bring down the roof but were unsuccessful in their attempts. They then decided to continue with the work they had originally been given. At the time of the collapse, Mr Dale had briefly left that part of the mine and was uninjured. Mrs Stapely brought an action against his employer for breach of statutory duty in relation to the actions of Mr Dale. The trial judge found for the Claimant, but reduced the damages by 50% under the Law Reform (Contributory Negligence) Act 1945. The Court of Appeal allowed an appeal by the Defendant holding that Mr Stapely was solely responsible for his own death. The Claimant appealed to the Lords.

The appeal was allowed but the damages were reduced by 80%.

demonstrates position that the question of negativing causation is a matter of degree.
here the key point is that the recklessness of the P does not negate the causal connection but leads to reduced damages.

Rushton v. Turner Bros. Asbestos Co. Ltd

Recklessness of the D. shows that recklessness is equated to voluntary act when looking at breaking of causation.

I am not prepared to give the plaintiff something, for example, as little as 5 per cent for damages which he could recover. I do not decide it on the ground that 5 per cent is the same as nought because others might have a different view. I take the view that in this case, looked at fairly, the plaintiff is the sole author of his own misfortune."

Barker v Corus UK Ltd [2006]. SC, refines Fairchild 2points:

1. Fairchild all possible Ds had wrongly exposed deceased to asbestos. not a necessary cond, a D who wrongly exposed deceased to risk may still be liable even though other exposures were non-Tious, by natural causes or by act of deceased himself. 2. normally for N of 2 or more Ds they are said to be jointly and severally liable - that is, each D is liable to pay full amount of DM to C but may seek to recover contribution from others. NOT for Fairchild, each D only liable for his share. effect of this second aspect has, however, been reversed by Compensation Act 2006, s.3, which holds that all Ds are jointly and severally liable. statute applies only to mesothelioma, so that if there are other diseases with same characteristics they are apparently left to CL.

Sienkiewicz v Greif (UK) Ltd [2011]: interpretaion of Compensation Act 2006,

SC clarified relationship between Act and CL. (i) Act kicks in only after Ct has decided in accordance with CL principles that a BOD by D has caused or materially contributed to injury. (ii) exceptional rule in Fairchild will apply only so long as state of medical knowledge makes it impossible to determine on a balance of probabilities whose fibres probably caused mesothelioma. (iii) exceptional rule in Fairchild applies not only where there are multiple Tfeasors but also where C is exposed only to one Tfeasor and to ordinary background risk of asbestos fibres in atmosphere.

Bailey v Ministry of Defence [2008] VIMP

expands but for TEST: concerns problematic question of factual causation, and interplay of ". but for". test and its relaxation through a ". material increase in risk" .
Return from trip, gallstones, complications at hospital removing stones. bled, but was put in a ward with little supervision. not resuscitated properly during night, and she was very unwell in morning. got worse. At same time (but this was not related to hospital's lack of care) Miss Bailey developed pancreatitis (sometimes from procedure). Xred to another hospital intensive care. tragedy struck when she was drinking some lemonade. She got nauseous and vomited. Because Miss Bailey was so weak, she could not clear her air passages and she choked=>brain DM.
Counsel for Miss Bailey argued that MoD hospital was nevertheless liable because although brain damage would not, strictly, have been caused ". but for". substandard care, substandard care had materially increased risk of harm. Held compensation.
material increase in risk to Miss Bailey created by Ministry of Defence's hospital made for a sufficient causal connection to be liable in N. should be no distinction drawn between medical N (where there has been a material increase in risk) and employer liability cases. He held that where ". but for". test of causation cannot be satisfied because of some uncertainty, it is relaxed and a C will succeed in getting compensation if D materially increased risk of harm.

Wright v Cambridge Medical Group [2011]:

girl sick, GP Nly delayed referring to hospital. treated over weekend by juniors, Nly provided incorrect diagnoses and antibiotic medication. finally seen by a consultant on Monday 20th, treatment on 22nd April,irreparable damage to hip Proceedings agsint GP. CA established GP Nly failed to refer, and that correct treatment would have prevented permanent injury, C enjoyed a PS of correct treatment by hospital. burden would then lie with D GP to show that hospital's treatment would have been N in any event. All three members found but for causation made out for both D and hospital. However, Neuberger MR and Smith LJ found that reduction in time for treatment occasioned by N of D was a cause of injury. Elias LJ found that responsibility of specialist hospital doctors for damage so outweighed D that they could no longer be found liable. He also found that a GP's sole clinical duty is to refer to a specialist, and this may serve to divest them of N more than other classes of Tfeasors. KEY RULE successive Tfeasors in clinical N cases; namely, that where two Tfeasors are responsible for same damage, first Tfeasor will remain liable for full extent of that damage, even if exacerbated by intervening clinical N, as long as damage was foreseeable, D would have been liable even without liability of hospital because of delay=> lost opportunity, but this goes against CA in Gregg v Scott