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Negligence - Coggle Diagram
Negligence
Causation & remoteness
Principle of Causation:
- In law, a loss will lie where it falls unless there is a reason for someone else to be responsible
- If the claimant can prove that the defendant was a t fault & has caused him harm
- no liability unless damage is caused
Causation:
- Question of fact, did Ds negligence cause Cs loss
Remoteness:
- Question of law, policy, should D be held liable for the damage
Simple causation:
- One alleged cause & one alleged effect
- Competing or cumulative causes (situations where multiple factors contribute to the harm suffered by plaintiff, courts must decide how liability is allocated among those factors)
- competing causes - two or more separate and independent actions each could have independently caused them harm
- cumulative causes - when multiple factors contribute to the harm, but no single factor alone would have been sufficient. Harm results from combined effect of all factors
- Addressed using BUT FOR test: would the harm have occurred but for each defendant's action? Would it have occurred without the defendant's action?
Using BUT FOR:
- Cork v Kirby McLean
- Barnett v Kensington & Chelsea – a man went to a casualty department feeling unwell after having drunk some tea. The doctor sent him away without treatment, telling him to see his own doctor. The man died from Arsenic poisoning.
Held: Doctor was in breach of his duty of care, failing to examine the man. Expert evidence suggested that the man was beyond help. The BoD didn't cause the man's death.
Consecutive Competing/ Independent Causes:
- Take victim as he is at the time & apply BUT FOR approach
-Performance Cars v Abrahams – the plaintiff's Rolls-Royce was involved in two collisions in the space of a fortnight. After first collision the car was in need of respray. It was then hit by a second driver, sustaining the damage that would also necessitate a respray. The Court of Appeal rejected the owner's claim for the cost of the respray on the grounds that the loss did not flow from the defendant's wrongdoing – at the time of the second collision, already was in need of respray. The second tort had no effect, given the continuing effect of the first. - consolidation
- Baker v Willoughby – plaintiff was run down by the defendant's negligent driving, caused him loss of mobility & consequent reduction in his earning capacity. Before the trial, the plaintiff was shot in the same leg by unidentified armed robbers, the leg was amputated. Defendant argued that the effect of the original injury had been obliterated by the second. HoL rejected these arguments. Liable for all consequences from the first injury. Treated the case where the plaintiff's continuing loss of amenity had cumulative causes. - consolidation.
- Jobling v Associated Diaries – the defendant employers had been responsible for injuring the plaintiff's back, causing him loss of mobility and reduced earning capacity. Before the trial, plaintiff succumbed to a crippling back disease, unrelated to his accident, rendering him unfit for work. HoL had to decide whether the defendants could remain liable for the plaintiff's reduced earning capacity in the future. Lordships held that the plaintiff would be over-compensated if he recovered from the defendants. Held: defendants' liability ceased at the time of the onset of the disease.
- Hotson v East Berkshire
- 'all or nothing' - if plaintiff cannot prove causation to courts satisfaction they receive nothing; if they can then they are entitled to full compensation. The plaintiff must demonstrate that the defendant's actions directly caused the harm, not only contributed.
Disapplying BUT FOR rule:
- when it leads to unjust or impractical results - particularly involving multiple or complex causes
- caused by a single noxious agent
- Administered in different ways
- Clear that the agent has caused the harm
- Not clear when the harm occurred
- Not cumulative
- McGhee v NCB – the plaintiff had contracted dermatitis from abrasive brick dust on his skin. The defendants weren't negligent in exposing him to brick dust. Plaintiff argued, because there were no wash places provided, throughout work life he had to cycle home each day with dust on his skin. Argued, this the reason. Defendants admitted they had been negligent in providing washing facilities, but argued their negligence wasn't the cause. Dust caused the dermatitis, but unable to say on the balance of probabilities. HoL held defendants liable, they materially increased the risk.
Simultaneous Competing/ Independent:
Must prove that the negligent cause if the cause:
- Wilsher – premature baby who suffered from oxygen deficiency. Doctor employed by the defendant had noticed that catheter had been wrongly placed into a vein instead of an artery. Monitoring equipment gave a misleading reading, resulting in the plaintiff receiving too much oxygen - leading them to develop RLF, leaving him almost totally blind. Expert – excess oxygen could have been the cause of RLF, but the condition occurred in premature babied who didn't receive oxygen. Held: liable, by supplying excess oxygen, they had 'materially increased the risk' that the plaintiff would succumb to RLF. HoL substituted the all or nothing approach, plaintiff failed to establish that his RLF had been produced by excess oxygen.
- BUT FOR approach
- 'all or nothing'
- Can be 'short circuited where all are tortious: Fitzgerald v Lane; Summer v Tice – The plaintiff was crossing a pelican crossing when the lights showed green for cars, but red for pedestrians. He was hit by a car driving negligently by the first defendant, throwing him into the road were he was hit by another negligent driver. He suffered dever injuries to his spine resulting in tetraplegia. The trial couldn't establish whether this was the resukt from the first or second car, or combined. The plaintiff had also been careless crossing. Judge held all three parties as being negligent.
- 'all or nothing' approach is logical but can be arbitrary
Cumulative causes:
- cases with 'multiple causes'
- whether its both/and, or not/either
- Because either act would have produced the same damage, each defendant is liable for the whole of the damage
- Successive causes - where the effect of the first act can be said to have become 'overtaken' or obliterated by the effect of the second act
- if several successive torts, all liable & apportion loss: Holtby v Brigham & Cowan
- If simultaneous in one employment, but partly tortious, D liable: Bonnington Castings v Wardlaw – the plaintiff had complained that his employer had exposed him to silicone dust while working in his workshop which lead to pneumoconiosis. Evidence suggested the dust was created by two sources. Claimant had to prove that the defendants fault on the balance of probabilities caused, or materially contributed to his injury.
- Lord Reid held: 'a contribution' which comes within the exception de minimis non curat lex is not material, but I think that any contribution which does not fall within that exception must be material'.
Swing grinders contributed a quota of silicone dust which was more than negligible to the claimant's lungs helping produce the disease. F
- D has in each case materially contributed to the harm
- C is much better off here, and it is also fair to Ds – no 'all or nothing'
Concurrent causes - causes that occur more or less simultaneously rather than one after another:
- Intermediate cause - cases with more than one defendant but only one 'operative cause' of the claimant loss, unclear which of the defendants acts produced this cause
- 'consecutive causes' - causes occur at different times but their effects operate at the same time
Mesothelioma cases
- Asbestos has been known as a hazard since 1920s
- Requirement of regulations routinely breaches
- Employment often on multiple short term contracts in the construction industry
- Problems of identifying/ tracing employers/ insurers
- Fairchild v Glenhaven - concerned a number of claimants who had contracted mesothelioma, a result of exposure to asbestos. Employers admitted breach of duty of care. Claimants couldn't establish which employers had exposed them to the particular asbestos causing their disease. Medical evidence – disease could be triggered at any time. Not all of them could be responsible for cumulatively causing the disease. HoLni, all employers loable for each increasing the risk.
- Conscious rejection of BUT FOR on policy/ principle grounds – Lord Bingham
- Baker v Corus – Compensation Act 2006.
Lordships held that the sort of liability that should be imposed on employers was 'several liability'.
in Barker, there was the risk that one or more defendants would be insolvent or untraceable fell on the claimants. Meaning the claimants compensation would be substantially reduced, as much of exposure had occurred long ago, & companies that employed them didn't exist. Would take too long. When implications became apparent, public & parliamentary outcry. Government passed leglisaltion reversing the effect of the decision – Compensation Act 2006. - Provides, where a defendant has exposed a claimant to asbestos, & claimant contracts mesothelioma, defendant liable to the whole damage.
Single factor causation:
- Often industrial disease e.g. dust, so employer's liability
Cumulative over time:
- Holtby v Brigham & Cowan
Cumulative in the same environment:
- Bonnington
Non-cumulative:
- McGhee/mesothelioma
- Generally fair because all who
contribute to the harm/risk are liable
- BUT FOR partly set aside
Multiple factor causation:
- Independent so can be very disparate
- Consecutive, e.g. Performance Cars;
Hotson
- Simultaneous: Wilsher
- Application of BUT FOR, so all or nothing
- Different rules for multiple torts
- Not seen as being as fair
Proof of causation:
- Where the defendant's conduct competes with other possible explanations of the claimant's loss. The courts approach the question requiring the claimant to prove that the defendant's breach is the cause of his or her loss
- Generally on the balance of probabilities; all or nothing: starts, the claimant, who bears the burden of proof in a civil trial, must discharge that burden by meeting the normal civil standard of proof. Must show that it was the defendant's breach that caused the loss.
- Hotson – 13 year old plaintiff fell while climbing a tree & injured his hip. Injury wasn't diagnosed correctly or treated for 5 days. Suffered avascular necrosis- permanently disabeled by the time he was 20. If treated correctly he would have had a 25% chance of making a full recovery. HoL found the plaintiff had failed to prove his case on the balance of probabilities. By the time the boy arrived at the hospital, as a matter of fact he was already disabled.
- Gregg v Scott – the defendant, a GP, had negligently failed to refer the claimant to hospital to be tested for cancer, delay of 9 months before his condition was diagnosed. When claimant had originally gone to see his GP, he had 42% chance of making a full recovery. Negligent delay, reduced claimants chance of recovery by 25%. Causation applied, claimant lost his case because the 'but for' test was not satisfied- could not show the GP's negligence was the cause of his failed recovery.
Exception:
- Chester v Afshar – claimant was suffering from chronic back pain went to see a neurosurgeon (defendant). He advised her to have surgery but didn't warn her there was a small risk (1 or 2%) of complications. The risk materialised, sued the defendant in negligence. The claimant was unable to see that if she had known about the risk she wouldn't have consented to the surgery. The law requires that a doctor who negligently fails to warn a patient about a complication from treatment must compensate the patient for the consequences of that complication occurring.
Breaking the chain of causation:
- Breaking the chain involves introducing a new event of issue - novus actus interveniens or nova causa interveniens - where one act follows the other, the law says that the second act is to be regarded as the true cause of the damage
- Supplanting & replacing the original negligence & relieves defendant of liability
Chain not broken by:
- Intervening Act of third party which is not truly independent
- Instinctive/ reflex acts
- Foreseeable acts
- Hogan v Bentinck – a miner who had injured his thumb at work. Doctors negligently decided to amputate part of his thumb. This reduced his earning capacity – only light work. Question HoL was whether the incapacity resulted from original injury or the operation. 3:2 majority, the amputation amounted to a novus actus interveniens. Wasn't abundantly clear that an alternative form of treatment would have cured the plaintiff of his condition.
- Rahman v Arearose
- Webb v Barclays Bank – claimant tripped and fell, suffering serious damage to her leg; unstable & painful. A claim for which her employers were liable. After while she was given medical advice which was to amputate the leg, notifed her employers that her claim had got bigger as the damage had gotten worse. Other professional doctors said that this wasn't the right decision – negligence. The bank suggested that now it concerns hospital. Court stated that the reason she was seeking this claim was because of the harm that her employers had caused in the first place. The chain was not broken and the employers were liable to make a contribution.
Intervening act of the claimant:
- Actions of claimant can break the chain, instead of the defendant they are regarded as the operative cause of their own loss
- whether the conduct of the claimant is unreasonable that it eclipses the tort of the defendant & amounts to the effective cause of the injury
- McKew v Holland & Hennen & Cubitts (Scotland) Ltd [1969] 3 All ER 1621 (But of Wieland v Cyril Lord Carpets [1969] 3 All ER 1006) - plaintiff suffered a slight injury to his leg, result of defendant's negligence, gave way when she was walking. The HoL held: the plaintoff's unreasonable behaviour was a novus actus interveniens. He not the defendant, had caused the injury. He descended a steep staircase with no handrail. His injured leg gave way, fracturing his ankle. Held: plaintiff's unreasonable behaviour was a novus actus interveniens.
A claimant's act will only break the chain of causation when it is unreasonable.
- Corr v IBC Vehicles Ltd [2008] UKHL 13 – the claimant suffered a head injury at work as a result of his employer's negligence. Succumbed to severe depression, and killed himself. In an action by his widow, it was held that his suicide didn't break the chain of causation.
- Spencer v Wincanton Holdings Ltd [2009] EWCA Civ 1404 – claimant had had his leg amputated as a result of the defendant's negligence. He was pending further adaptations to his car, the prothese he had been fitted with couldn't be worn whilst he was driving. He filled his car up woth petrol & without support. Tripped & fell, further injury confining him to a wheelchair. CoA – claimant made a misjudgment in running a risk by not using support. Reflected in a finding of contributory negligence.
- Scott v Gavigan [2016] EWCA Civ 544
- Contributory Negligence (and the use of Contribution between Tortfeasors) are seen as more flexible & fairer.
Remoteness:
- looking at actual consequences & determining whether any fall outside the scope of the defendant's liability, & relieves the defendant of liability
- whether the law will deny recovery on the basis that the loss in question is a very unusual result of the defendants conduct
- Harm is too remote if it is of a type which is not reasonably foreseeable: Wagon Mound (No 1). Their Lordships held: the 'rule' that a defendant was to be liable for all the direct consequences of his or her actions was wrong. The modern law of The Wagon Mound (NO 1) - Overseas Tankship (UK) Ltd v Morts Dock & Engineering Co Ltd. Wagon Mound (No 2)- the evidence before the court showed there was a foreseeable risk that the oil would ignite.
Wagon Mound (No 1) - the evidence was that the oil catching fire was unforeseeable.
- Designed to keep liability within acceptable limits by replacing the old direct consequence rule in Re Polemis, but has had limited effect: ship had been loaded with a quantity of petrol, which had leaked causing the hold of the ship to fill with vapour. A dock worker negligently allowed a wooden plank to drop into the hold, causing a spark that ignited the petrol, ship was lost by fire. CoA held the defendants liable. The worker could have foreseen that it might cause some damage to the ship.
- Type of harm generally broadly interpreted - personal injury: Bradford v Robinson Rentals Ltd – plaintiff suffered frostbite when he was sent on a journey by his employer. Held: although frostbite was a rather unusual consequence in the circumstances it was 'of type & kind of injury which was reasonably foreseeable.'
- It is not necessary to foresee the whole 'concatenation of circumstances' - Hughes v Lord Advocate –the Post Office, in breach of its duty, left a manhole open on the street. The manhole was covered with a tent & left unguarded with warning paraffins. The plaintiff, an 8 year old boy, picked up one of the lamps & clambered down the manhole. Very unusual set of circumstances, the hole exploded, causing's ever burns. HoL held the Post Office was liable, it could not reasonable have foreseen that anyone might be burned by an explosion in the manhole, but was sufficient to find liability that there was a reasonably foreseeable risk of the boy being burned by the paraffin lamp.
Eggshell skull principle: Smith v Leech Brain – the plaintiff's husband was burned on the lip at work by a splash of molten metal. At this time it wasn't known that he had a form of pre-malignant cancer. The burn triggered the onset of the cancer, he died three years later. Lord Parker CJ stated that in The Wagon Mound, whilst the Privy Council had held that a defendant must forsee the kind of damage in suit, their Lordships had not meant to hold that the extent of the damage had to be foreseeable. followed that the 'Eggshell skull' rule had not been displaced. Regarding 'damage by burning' & 'damage by cancer' as the same kind of damage, Lordship held the defendants liable.
- Before the decision in The Wagon Mound (No.1), it was established law that where an injured claimant had suffered from some peculiar hypersensitivity which exacerbated his or her loss, providing the defendant could reasonably foresee some injury to a normal claimant, the defendant would be liable for the full extent of the loss.
- 'Eggshell skull' - 'the defendant must take his victim as he finds him'.
- The rule will apply in cases where the particular characteristics of the claimant act in combination with surrounding circumstances to exacerbate the claimants loss.
- Less clear whether the rule applies to claims in respect of damage to 'hypersensitive' property as well as hypersensitive people.
- Defendants cannot avoid liability by pointing to a plaintiff's preexisting vulnerability.
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