TORT 3 : Negligence on Causation & Remoteness

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.

Tort 2 : Negligence on Breach

NEGLIGENCE – BREACH OF DUTY OF CARE

Essential Elements in the Tort of Negligence

1. Duty of care

2. Breach of Duty of Care

3. Causation.

BREACH OF DUTY OF CARE.

• Has the Defendant done something which a prudent or reasonable man would not do?
  
• Has the Defendant failed to do something which, in the circumstances, a reasonable man would do?
  

STANDARD OF CARE REQUIRED IS THAT OF HYPOTHETICAL REASONABLE MAN.

(Blyth v Birmingham Waterworks Co – 1856) ‘MAN IN STREET’, ‘MAN IN CLAPHAM OMNIBUS’.OBJECTIVE (no account of idiosyncrasies of the person whose conduct is in question)OBJECTIVE – Not distorted by personal feelings or bias.

ESTABLISHING BREACH OF DUTY OF CARE

The Court must determine whether:a. The Defendant has done something which a prudent or reasonable man would not do ORb. The Defendant has failed to do something which a reasonable man would do.

MUST ASSESS HOW REASONABLE MAN WOULD BEHAVECONSIDER THE FOLLOWING:

1. The Magnitude of the riskCan occur in 2 ways:

• High risk as so likely to happen
  
• High risk as consequences of it happening are so serious for Claimant.The greater the risk, the more precautions have to be taken.
  

Bolton v Stone – HL – 1951The claimant was standing in the road when she was struck by a cricket ball which was hit out of the defendants’ ground. The evidence was this had happened 6 times in preceding 30 years. It was held that the risk was so small that the defendants were justified in not taking further measures to eliminate the risk.(Imagine military training area with live ammunition)

Paris v Stepney Borough Council – 1951-HLThe Claimant who had only one good eye, went completely blind when, during the course of his employment a chip of metal entered his good eye. He sued his employer for negligence, contending that as his employer knew he only had one good eye, they should have provided him with goggles. The employer’s defence was that it was not customary to provide goggles to their employees.Lord Morton said “The more serious the damage which will happen if an accident occurs, the more thorough are the precautions which an employer should take”. The employer was found in breach of his duty of care in failing to provide goggles.2. The cost and practicality of measures to overcome the risk.

Latimer v AEC Ltd – 1953 – HLThe floor of the Defendant’s factory became flooded after heavy rain. The water mixed with some oil and the floor became slippery. The Defendant sprinkled sawdust but did not have sufficient sawdust to cover the entire floor. The claimant employee slipped on an uncovered area of the floor and sustained an injury. The claimant alleged that the Defendant was negligent in failing to close the factory that day and send the workers home. The House of Lords held that in the circumstances of the case the employer had taken reasonable precautions and was not in breach of duty.(Where risk great employer may have to close business – fire and structural damage).

3. The purpose of the Defendant’s Act

Watt v Herford CC – 1954 – CAA Fireman was injured by the movement of a heavy jack whilst travelling in a lorry which was not properly equipped to carry it. The Jack had been placed on the lorry as it was urgently needed to save the life of a woman who had become trapped under a bus. Held that in these circumstances the Defendants were justified in exposing the claimant to the risk.Denning “The saving of life or limb justifies taking considerable risk”.

TEST OF REASONABLE MAN v CHARACTERISTICS OF DEFENDANT

Legal standards generally take no account of the personal characteristics of the Defendant.Not sufficient for Defendant to say did incompetent best. Inexperience of lack of intelligence or slow reactions provide no excuse to a charge of negligence. Nor will a defendant be able to rely on disability – a partially sighted driver and learner driver owe the same duty of care as one with normal sight. But are cases which are approached differently

.1. ChildrenMullin v Richards – 1998 – CATwo 15 year old girls engaged in play fight with plastic rulers. One of the rulers broke and a bit of plastic entered the eye of one of the girls (the Claimant) causing her to lose her sight in that eye.Hutchinson LJ said:“The test of foreseeability is an objective one; but the fact that the first defendant was at the time a 15 year old schoolgirl is not irrelevant. The question for the judge is not whether the actions of the defendant were such as an ordinarily prudent and reasonable adult in the defendant’s situation would have realised gave risk to the injury….the test is whether an ordinarily prudent and reasonable 15 year-old schoolgirl in the defendant’s situation would have realised as much”.

2. ProfessionalsPersons holding themselves out as having a particular skill or profession must attain the standard of the reasonably competent person exercising that skill or profession.

Bolam v Friern Hospital Management Committee 1957McNair J said “..where you get a situation which involves the use of some special skill or competence, then the test,, is not the test of the man on the top of the Clapham Omnibus, because he has not got this special skill. It is the test of the ordinary skilled man exercising and professing to have this special skill….

A doctor is not negligent if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art”.FACTS: the claimant had undergone electroconvulsive therapy which resulted in serious injuries. He alleged negligence and said he should have been informed of the risk of fracture before he consented to the treatment and that the drugs should have been given to him before the therapy to make him more relaxed.HELD: Not negligent because the practices were consistent with those in other hospitals.NOTE: It is part of professional’s duty to keep abreast of new developments and techniques.

TORT 1 - NEGLIGENCE on Duty of Care

DUTY OF CARE

NEGLIGENCE as a tort is the breach of a duty of care, owed by the defendant to the claimant which results in damage.

DAMAGE may be caused by MISFEASANCE or NONFEASANCE.

DAMAGE may consist of

• PERSONAL INJURY
  
• DAMAGE TO PROPERTY
  
• PURE ECONOMIC LOSS
  
• PSYCHIATRIC DAMAGE “NERVOUS SHOCK”
  

ESTABLISHING A DUTY

Donoghue v Stevenson – HofL – 1932

Seminal case, firmly established negligence as an independent tort.

Lord Atkin attempted to trace a common thread through earlier case-law to set out a principle for determining whether a duty of care exists.

“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 affected when I am directing my mind to the acts or omissions which are called into question.”

3 Formal requirements for establishing whether a duty of care exists

1. Foreseeability of harm
2. Proximity in relationship between Claimant and Defendant
3. Just and reasonable to impose duty

Prior to Donoghue v Stevenson, had to bring case into existing categories of relationship and find comparable case. Indeed, even today, whether a duty is capable of existing does not often cause problems since the issue will be governed by precedent. However, in a novel situation, these 3 formal requirements will have to be satisfied.

The relative significance to be attached to each requirement will depend upon a variety of factors including, inter alia:

- the status of the parties and their relationship with one another.
- the nature of the harm suffered.
- The particular way in which the harm arises.

Where positive conduct by Defendant causes direct physical injury to Claimant or Claimant’s property, reasonable foresight of such harm will generally be sufficient to satisfy the other criteria for the existence of a duty.
However, in other cases involving PURE ECONOMIC LOSS, OMISSIONS, PSYCHIATRIC INJURY, foreseeability of harm, never alone sufficient to establish duty.

PURE ECONOMIC LOSS

Financial loss consequent upon negligently inflicted injury to person or property is ordinarily recoverable.

PURE ECONOMIC LOSS courts are much more reluctant to impose liability. Courts don’t wish to burden the Defendant with liability in “ an indeterminate amount for an indeterminate time to an indeterminate class”.

PURE ECONOMIC LOSS can occur through negligent statements and/or negligent acts.

Negligent Statements

Prior to 1964 liability for misstatements existed in contract, in tort of deceit or for breach of fiduciary duty.

Hedley Byrne & Co Ltd v Heller & Partners Ltd – Hof L 1964

The Claimants wanted to know if they could safely advance credit to their client X. The Claimants’ bankers sought references from the defendants’, X’s, Bankers, who gave favourable reports “without responsibility”.
Claimants relied on information and suffered financial loss when X went into liquidation.

HELD: No duty arose because of the disclaimer. However, HofL went on to say that in appropriate circumstances a duty could arise. Requirements:

- Foresight of harm
- Special relationship

The special relationship exists where, to Defendant’s knowledge, the Claimant relied upon the Defendant’s skill and judgement or ability to make a careful inquiry and it was reasonable in the circumstances for the Claimant to do so.

Concept of REASONABLE RELIANCE.

Negligent Acts

There was originally no liability for pure economic loss caused by negligent acts.

Spartan Steel and Alloys Ltd v Martin and Co (Contractors) Ltd CA 1973

The defendants negligently damaged a power cable cutting off the electricity supply to the claimants’ factory, as a result of which the claimants suffered damage to their property reflected in loss of profit thereon, together with pure loss of profit during the interruption to the supply. The claimants succeeded in the first part of their claim but failed to recover profit they would have made but for the power cut.

Hedley Bryne v Heller made a major inroad upon the principle that economic loss was generally not recoverable.

Current position is economic loss caused by negligent acts is generally irrecoverable unless it can be brought within the parameters of Hedley Byrne.

Policy Arguments:

- Don’t want to burden Defendant with liability “in an indeterminate amount for an indeterminate time to an indeterminate class”.
- To permit recovery in tort would introduce a transmissible warranty of quality in absence of any contract.


PSYCHIATRIC ILLNESS

Alcock v Chief Constable of South Yorkshire – HofL – 1991

Lord Ackner said shock “involves the sudden appreciation by sight or sound of a horrifying event, which violently agitates the mind”.

- Recognisable psychiatric or physical illness: mere grief or emotional upset is not actionable.
- Can be no recovery for psychiatric illness “caused by the accumulation over a period of time of more gradual assaults on the nervous system”.

Lord Oliver said shock victims fall into one of two groups:

(i) Those who are unwilling participants in the events causing shock (primary victims)
(ii) Those who are merely passive and unwilling witnesses (secondary victims)
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HELD: With regard to those in the first group, if the Defendant’s negligent conduct foreseeably puts the Claimant into that position, it follows that there will be a sufficiently proximate relationship between them to create a duty of care.

However, for those in second group, to recover damages must prove the following:

(i) That the relationship to the primary victim was sufficiently close that it was reasonable foreseeable that he might suffer shock if he apprehended that the victim had been, or might be injured.
(ii) That he was temporally and spatially close to the scene of the accident or its immediate aftermath.
(iii) That he suffered shock through sight or hearing of the accident or its immediate aftermath.

Nervous shock cases fall within a distinct category subject to special rules and reasonable foresight of shock alone is not sufficient to give rise to a duty.

OMISSIONS

General Rule is that a Defendant does not owe a duty to take positive action to prevent harm to others. Thus, a rescuer who goes to the assistance of others in peril is under no legal obligation to do so.

Exceptions

A. The nature of the relationship between the parties may place one person under a duty to prevent harm to the Claimant caused by an independent act of a third party

• - employer/employee
  
• - occupier/visitor
  

B. May also be a special relationship between the defendant and the third party where there is a positive obligation to control the third party

• - gaoler/prisoner
  
• - parent/child
  
• - employer/employee
  

C. Liability might also arise where the defendant negligently causes or permits to be created a source of danger and it is reasonably foreseeable that third parties may interfere with it and thereby cause damage.

SPECIFIC IMMUNITIES

Situations arise where, for public policy reasons a duty of care is found not to exist.

Advocates

Rondel v Worsley – HofL – 1969 Held that advocates could not be sued for negligently conducting a case in court. The policy argument was that to fulfil their duty to the court and administration of justice, an advocate must be free from the threat of negligence.

This decision was overruled in the case of Hall v Simmons (Hof L 2000). Court said the public interest in advocates’ immunity in negligence must be balanced with the normal right for an individual to be compensated for a legal wrong.

Police

In performing their function of investigating and preventing crime, the police owe no duty of care to an individual member of the public.

This blanket immunity was reviewed in Osman v Ferguson – 1993. The Claimant and his father were shot by a teacher who was a known threat to his victims. The ECHR stated that the “blanket immunity” breached Art 6 of the ECHR.

English courts must not simply apply a blanket immunity but balance whether the public interest in granting such immunity is proportionate to the interference with the Claimant’s human rights.

Rescue Services

Capital & Counties plc v Hampshire County Council – CA - 1997

The Court of Appeal ruled that fire brigades are not under a common law duty of care to answer an emergency call nor under a duty to take reasonable care to do so. Unless the fire service negligently increase the damage or causes additional damage, liability in tackling a fire will not arise.

Unborn Children

In Burton v Islington Health Authority (1993) it was held that a duty of care is owed to an unborn person which becomes actionable on the birth of the child.

However, in McKay v Essex Health Authority – CA - 1982 it was held that the common law recognises no right for “wrongful life” whereby a child claims that s/he would not have been born at all but for the Claimant’s negligence. To allow a child to recover damages for pain and suffering of being alive was against public policy.

Similarly in McFarlane v Tayside Health Board - HL – 1999 it was held that claims in respect of financial costs of bringing up a healthy child following advice about or negligent performance of a sterilisation were not recoverable.

Policy – birth of normal baby is blessing not detriment.

CONCLUSION

What see in “immunities” cases is judges making decisions based on public policy considerations.

Some would say the language used by judges in dealing with the duty issue tends to mask the fact that the decision whether or not a duty exists as a matter of law is ultimately based upon public policy.

Indeed, as Lord Pearce observed in Hedley Byrne v Heller & Partners:

“How wide the sphere of the duty of care in negligence is to be laid depends ultimately on the courts’ assessment of the demands of society for the protection from the carelessness of others.”