CAUSATION & REMOTENESS
Barnett v Chelsea & Kensington Hospital Management Committee 1968.
The Claimant’s husband became ill after drinking tea which contained arsenic. He was taken to hospital but the doctor in casualty did not examine him and admit him. Instead, he asked the claimant’s husband to see his own GP. A few hours later he died.1. Did the Doctor owe a duty of care?
Was the Doctor in breach of his duty?
- Did the Claimant’s husband suffer harm?HOWEVER, had the Doctor not been negligent and admitted the Claimant’s husband to hospital, the Claimant’s husband would still have died.
Doctor’s negligence did not cause death.“BUT FOR” TEST“If harm to the claimant would not have occurred “but for” the Defendant’s negligence then that negligence is a cause of the harm…if the loss would occur in any event, the defendant’s conduct is not a causeThe “but for” test will not always solve the problem. IE where two simultaneous wrongs are done to the claimant, each of which would in itself be sufficient to cause the damage. In this case the test leads to the absurd result that neither breach is a cause of the damage.
CONCURRENT CAUSES.
Fitzgerald v Lane -1988
– HLClaimant crossing road when two cars, driven by D1 and D2 hit him and he sustained neck injury. Both drivers were found to be negligent. Issue – causations. Evidence could not establish which driver caused injury to his neck. Both drivers held jointly liable.Hale v Hants & Dorset Motor Services – 1947Branches of a tress owned by D1, were overhanging a highway. D2’s employee drove a bus too near the pavement side of the road and a branch shattered a window on the bus, injuring a passenger. Both D1 and D2 were held to be negligent and both were liable.CONSECUTIVE CASESBaker v Willoughby – 1970 – HLClaimant’s left leg was injured in a car accident caused by the negligence of the defendant. Before the court case, the Claimant was shot to the leg by robbers at his work place. The leg had to be amputated.Defendant argues that should only be liable to compensate the Claimant until the date of the shooting as the second injury obliterated (wiped out) the first.HELD: Claimant’s right of recovery was not limited to the loss suffered only before the robbery. He was entitled to damages that he would have received had there been no subsequent injury.LORD REID“A man is not compensated for the physical injury; he is compensated for the loss which he suffers as a result of that injury. His loss is not in having a stiff leg: it is his inability to lead a full life. The second injury does not diminish this. Why should it be regarded as having obliterated or superseded them??If the later injuries merely become a concurrent cause of the disabilities caused by the injury inflicted by the defendant, then in my view they cannot diminish the damages”
Jobling v Associated Diaries Ltd – 1982
– HLIn 1973 the claimant suffered injury as a result of a tortuous act of his employer. The injury reduced his earning capacity. In 1976 the claimant started suffering from a spinal disease which meant that he could not work at all.HELD: the Defendant had to compensate the Claimant for his reduced earning capacity from 1973-1976 but not thereafter. The reasoning was that the illness is a vicissitude of life and as such should be a factor taken into account in assessing damages for future loss of earnings.
LORD WILBERFORCE“I think that Lord Reid’s theory of concurrent causes even if workable on the particular facts of Baker v Willoughby (where successive injuries were sustained by the same limb) is as a general solution not supported by the authority he invokes not workable in other cases”.
REMOTENESS OF DAMAGE
(LEGAL CAUSATION)
Where damage or injury which has occurred is far removed from the cause of the damage or injury.
Polemis and Furness, Withy and Co. 1921
Defendants were charterers of a ship. Stevedores (those employed to load/unload ships) employed by the charteres negligently dropped a plank into the hold of the ship. Tins of petrol had been stored in the hold and there was petrol vapour in the hold. The plank fell on something, causing a spark which ignited the vapour. There was a fire and the entire ship was destroyed. Although the Defendants could foresee the spark could cause some damage, they couldn’t reasonably foresee entire ship would be destroyed.
HELD LIABLE for consequences of actions.
Overseas Tankship Ltd v Morts Dock Engineering Co. (The Wagon Mound No. 1) – 1961 –
Privy CouncilThe Defendants had negligently allowed some oil from their ship to spill into Sydney Harbour. The Claimant owned a wharf in the harbour and was carrying out some welding work. Sparks from the welding ignited waste material in the water and the oil caught fire causing damage to the Claimant’s wharf.
HELD: The Defendants could not reasonably foresee that oil spread thinly on the water would catch fire. NOT LIABLE.Viscount Simonds said“the test in Polemis should no longer be regarded as good law….For it does not seem consonant with current ideas of justice or morality that, for an act of negligence, however slight or venial, which results in some trivial foreseeable damage, the actor should be liable for all consequences, however unforeseeable and however grave, so long as they can be said to be “direct”.
Type of damage must be reasonably foreseeable.If reasonably foreseeable, it matters not that the actual damage is far greater in extent than could have been foreseen.
Smith v Leech Brain & Co. 1962Mr Smith suffered a burn on his lip. The tissues of his lip were prone to cancer. The burn developed into cancer and he died.
HELD: LIABLE – ie tortfeasor takes victim as he finds him.Question is whether Defendants could reasonably foresee type of injury – burn – they could.3B INTERVENING CAUSESIn some cases the claimant’s damage is attributable not to breach of duty but some intervening act. Act breaks chain of causation.
McKew v Holland & Hannen & Cubitts Ltd – HL – 1969The Claimant’s leg would give way without warning as a result of an injury caused by the Defendant’s negligence. Whilst descending a steep flight of steps without assistance or support, Claimant’s leg gave way. He fell and fractured his ankle.
HELD: not liable. Although foreseeable, Claimant’s act so unreasonable.Note: lack of consistency, masking policy factors at play in judicial process.
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