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Chapter 24 Liability in Negligence: personal injury and damage to property
Chapter 24 Liability in Negligence: personal injury and damage to property
24.3 Damage
24.3.1 Causation
Factual causation is shown by the case of Barnett V Chelsea and Kensington hospital management committee 1969 which uses the but for test which means but for the defendants act or omission the injury or damage would not have occurred.
In this case three men were poisoned by a fourth man and they were told to go home and see their own doctors however one man went home and died from poisoning of arsenic his widow then to the hospital claiming the doctor was negligent in not examining a husband and had caused his deathIn this case three men were poisoned by a fourth man and they were told to go home and see their own doctors however one man went home and died from poisoning of arsenic his widow then sued the hospital claiming the doctor was negligent in not examining a husband and had caused his death.
Causation is the link between the defendants act or omission and the injury, loss or damage caused to the claiment.
24.3.2 Remoteness of damage
Where factual causation is proved it must be shown that the damage is not too remote from the negligence of the defendant. this is shown in the case of
The Wagon Mound 1961
this is where oil had been negligently spilled from the defendant ship on the water in Sydney harbour and it spread towards the wharf when welding repairs were being carried out on another ship two days later the oil caught fire because of the sparks on the welding and the fire spread to the claimants walked and burnt it down.
It was decided that even though the oil being spilt was reasonably foreseeable the fire damage wasn't the type of damage was too remote from the original negligent act of spilling oil.
Reasonably for seeable means a result such as an injury or damage which a reasonable person could foresee and could result from his actions or omissions.
Type of injury foreseeable
In the case of
Hughes v Lord Advocate 1963
a manhole was left unattended with only a 10 and paraffin lamps around the whole claimant was eight years old and he climbed into the hole and knocked one of the lamps over which cause an explosion which badly burnt the claimant the court decided the boy was able to claim for his injuries as it was for seeable that child might explore the site the type of injury he suffered was for seeable even the explosion itself was not.
Bradford v Robinson Rentals 1967
Doughty v Turner Asbestos 1964
Take your victim as you find him
Smith v Leech Brain and Co. 1962
Damage is a legal concept and asks the question has the defendants breach of duty lead to the injury or property damage suffered by the claimant?
24.1 Duty of care
24.1.1 Damage or harm reasonably foreseeable?
In the case of
Kent and Griffiths 2000
this is where a reasonable person could foresee that damage or injury could be caused to another person by his actions or omissions whether the injury or damage is really prefer sable depends on the facts of the case.
24.1.2 Proximity of relationship
Even if harm is reasonably foreseeable a duty of care will only exist if the relationship between the claimant and the defendant is sufficient and coats approximate this can be shown by using the neighbour test from
Donoghue v Stevenson.
In the case of
Bourhill v Young
there was no proximity of relationship as the pregnant women did not see the crash and the defendant did not have the lady on the tram in his head when he did what he did this means that there is no duty of care owed by the defendant.
In the case of
McLoughlin v O'Brien 1982
a duty of care was owed by the defendant as the mother saw her husband and children when they were still mangled in a hospital and hadn't been cleaned up which then caused her to have shock depression and a personality change. This then meant that the Lorry driver did have a duty of care however the House of Lords made it that so only a limited amount of people could claim to stop Floodgates opening
24.1.3 Fair, just and reasonable to impose a duty
In the case of
Hill V Chief constable of West Yorkshire 1990
showed that imposing a duty of care on the police wasn't fair just and reasonable as the Yorkshire Ripper did target women however the police could not anticipate who the next Victim would be meaning that the police did not owe the Victim a duty of care.
In the case of
Osman v Police
there was a psychopath teacher and the police knew that he was targeting a certain student but that as they were going to arrest him he then broke into the house and killed and injured the family in this case the police were to have imposed a duty of care to the state of the family as they knew who the victim would be.
Cases:
Caparo v Dickman 1990
This is a three part test which asks the questions of 24.1.1, 2, 3.
Donoghue v Stevenson 1932
Neighbour Principle - the person who is owed a duty of care by the defendant. It is not the person living next door. According to Lord Atkin it is anyone you ought to have in mind who might potentially be injured by your act or omission.
Trite law
In some cases such as drivers, doctors and patients and teachers and students a duty of care is always owed and doesn't need to be proven in court.
24.2 Breach of duty: the objective standard of care
24.2.1 The reasonable person
This is considered to be the ordinary person in the street or doing a task such as original doctor a reasonable driver this is shown by the case of
Bolam
this is where the following questions are asked does the defendants conduct fall below the standard of an ordinary competent member of that profession? and is there a substantial body of opinion within the profession that would support the course of action taken by the defendant?
So this means that learner drivers are judged at the standard of a reasonable driver even though they are still learning.
24.2.2 Risk factors
Special characteristics
This is shown by the case of
Paris V Stepney Borough Council 1951
when employee was blind in one eye I was given work which involves a very small risk however he was not given any protective goggles and damaged his other working eye and became totally blind his employers were held to a broken their duty of care.
Size of the risk
This was shown in the case of
Bolton v Stone 1951
this is where a cricket ball hit a passerby on the street outside the cricket ground but precautions were taken such as a 17 foot high fence around the ground and the wicket being a long way from the fence as it was such a small risk of this happening and it only happened six times in 30 years there was no duty of care owed.
In the case of
Hayley v London Electricity Board 1965
there was a hole dug in the pavement but only put a warning signs and did not have any barriers around the trench this was on a street where blind kids went to school and one fell into the trench and was injured knowing that that road was used by a number of blind people great a precaution should've been taken and the defendant had breached the duty of care.
Appropriate precautions
In
Latimer
a factory became flooded and the floor was slippery they removed all the workers and spread sawdust on the floor however one worker was injured but there was no breach of the duty of care it was found that the only way to completely prevent injury would be to close the factory which was unreasonable for the owners to do this.
Unknown risks
In the case of
Roe v Minister of Health 1950
in a hospital the anaesthetic was kept in glass chips which was sterilised by cleaning solution after every use but does not know and it cracks could occur in the glass and the anaesthetic could be contaminated by the cleaning solution which caused him to be paralysed however there was no breach and he could not claim compensation.
Public benefit
In an emergency greater risk can be taken and the standard of care can be lower in the case of
Watt v Hertfordshire County Council
the claimant was a fireman and was injured whilst rescuing a woman however the service had not breached its duty of care and the utility of saving a life outweighed the need to take precautions.