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BREACH OF DUTY - Coggle Diagram
BREACH OF DUTY
FACTUAL CAUSATION
- demonstrating that the D’s breach of duty is casually related to the claimant’s actionable damage. It does not have to be the only, or even main cause - filters out irrelevant causes - must have a link between the defendants' actions and the damages claimed by the claimant LEGAL CAUSATION
- assessing whether the factual connection is strong enough, in terms of moral fairness, to warrant the imposition of responsibility
TESTS FOR FACTUAL
- The ‘but for’ - only works for straight-forward cases
- Test of necessity, determined on the balance of probabilities
- What would have happened in different circumstances?
- Establishing the relevant ‘counterfactual’ scenario
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- Only have to show what was most likely
- If the claimant was better off in the scenario then the D’s breach of duty was satisfied
- Barnett v Chelsea [1969] - doctor refused to see patient and sent home – died
- Performance cars v Abrahams [1962] - the claimant’s car was already damaged so D was not liable
- McWilliams v Sir William [1962] - proved that the claimant would not have worn the safety equipment anyway so there would not have been a different scenario
- Wilsher v Essex [1988] - multiple alternative causes – too many possible explanations for the cause of blindness – cannot be down to the nurse completely
Common-sense
- Summers v Tice [1948] US
- Cook v Lewis [1951] CANADA
- Fitzgerald v Lane [1987] - did not use the crossing correctly – hit by car then run over – was main injury caused by first or second impact? - held that they were equally liable
For remaining tests must distinguish between:
- Divisible (close-related - proportionate liability) and indivisible harm (not close-related - joint and several liability)
- Several liability (proportionate liability) and joint and several liability (civil liability Act 1978)
Bonnington ‘material contribution to harm’ – more claimant friendly but only when there’s multiple causes, divisible injuries
- Bonnington v Wardlaw [1956] - lung disease caused by dust at job – claimant had to prove that the disease was caused solely by the second equipment as this was the only wrongly used – not able to identify – court held it was unjust as the equipment would have contributed to the harm – was it significant enough = yes - the D had to compensate for the whole harm not just the second equipment - exception case
Fairchild ‘material contribution to the risk of harm’
- Need indeterminate defendants, indivisible injuries, single casual agents
- McGhee v Coal Board [1973] - disease caused by coal dust – court held the time he spent working in the mines would not arise to a breach of duty – the conditions he worked in were not wrong from then employer – but there was with the washing facility (no showers at work) - had to be covered on the way home from work – needed to prove that the time after work is what caused the skin disease
- Does not need proof of causation of harm but only if there is a contribution to a risk of harm
- Fairchild v Glenhaven Funeral services [2003] - cancer due to dust at work - is an indivisible disease and more exposure would not change harm – only the first employer would be liable as any further would not make any difference - used McGhee but with more policies - Need indeterminate defendants, indivisible injuries, single casual agents – only needs to proof a risk
Barker v Corus [2006] - indivisible harm and proportionate liability – contradict Bonnington and reverse of normal rules - cancer due to dust at work – fairness of decision was short-lived due to:
- Section 3 of the compensation Act 2006 which states liability should be imposed on joint and several liability basis.
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Sienkiewicz v Greif [2011] - woman worked in an office which had cancerous dust as walking through building – the area is regular with that dust in the air surrounded – argued that the claimant could have inhaled the dust from the atmosphere - Supreme court held that there could be no defendant that could be held liable for the environmental exposure – conditions of Fairchild was met and Section 3 applied with several liability – employer held liable for the entirety of the harm suffered by the victim – however, the environmental exposure was greater than the office exposure
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LEGAL CAUSATION
REMOTENESS
- Wagon Mound [1961] test of reasonable foreseeability of the type of harm – discharged oil from the ship in a harbour – caused a fire – was not reasonably foreseeable as nobody realised it would ignite – avoided liability even with their breach of duty - only on type of harm
- Hughes [1963] - left man hold open overnight with a shelter – 8 yr old boy dropped light, explosion and fell in and got serious burns – D's breached their duty that they left it open as a child falling in it is reasonably foreseeable – would not foresee the extent of the explosion but that did not matter = only type
- Jolley [2000] - boat left, reasonably foreseeable that children would play with it – child broke his back – fell within a ‘range’ of foreseeable injuries
THIN SKULL RULE
- Need to take responsibility for the impact on each individual case
- Need to prove that a normal person would have suffered the same range of injury just at a different extent - if not then it is too remote
- Smith [1962] - hit in lip, developed cancer and died due to disease – the burn was foreseeable even if the extent wasn’t = liable
- Robinson [1974] - minor initial harm but in hospital had an allergic reaction – not too remote as if you injure someone and they go to hospital it is often common for treatments to go wrong = still liable - doctors/ hospitals will not disturb liability as should be foreseeable
- Tremain [1969] - rat disease was too remote as was not in the range of foreseeable injuries caused by rats
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- Blyth v waterworks [1856] - flooded house – what would a reasonable man do or not do
- Healthcare [2014] – Lord Reed – they are legal fictions not established by the evidence of witness – is a legal standard applied by the court
- Bolton v Stone [1951] - there must be sufficient probability to lead a reasonable man to anticipate it.
- Probability of harm – Lord Reid ‘the wagon mound’
- Paris v Stepney [1950] - gravity of potential harm – breach was established as company new he only had one good eye so damage to another would have big harm
- Latimer [1953] - oil spillage -
Exceptions – adjust it depending on
- Age – Orchard v Lee – 13-year-old boy
- Disability – Mansfield v Weetabix
Bolam [1957] - mental illness electric op – was not strapped in – doctors are not to be judged of the reasonable person – but a reasonable doctor – judges are not doctors so had experts in to hear reasonable practice – McNair ‘not guilty if accepted as proper by medically skilled men’
- Montgomery [2015] - disclosure of risk - ‘a reasonable person in the patient’s position would be likely to attach significance to the risk, or the doctor is or should reasonably be aware that the particular patient would be likely to attach significance to it.’
-Baker [2011] - noise was reasonable