Damage in Negligence

Damage in Negligence


    * Damage is the gist of the action in Negligence

    * The scope of actionable damage:

–property
–personal
–mental
–pure economic loss

    * Damage must be actual for compensation; no cause of action accrues unless there is damage – If there is no damage then who cares? If there is a duty of care and a breach yet there is no damage, then you get nothing = no claim.

    * Limitations period therefore begin from the time of the injurious consequences of a conduct not from when the conduct first occurred

For P to be successful in an action in Negligence, D’s breach of duty must cause damage to P or his/her property

Causation

The Civil Liability Act 2002 s5D
5D General principles

(1) A determination that negligence caused particular harm comprises the following elements:    
            (a) that the negligence was a necessary condition of the occurrence of the harm ( "factual causation"), and       
            (b) that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused ( "scope of liability").

(2) In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.

(3) If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent:        
            (a) the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and         
            (b) any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest.

(4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.
5E Onus of proof

In determining liability for negligence, the plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation.

Causation

There must be a causal link between D’s breach of duty and damage to P or P’s property
 

Elements of Causation

• Causation involves two fundamental questions:

– The factual question whether D’s act in fact caused P’s damage: causation-in-fact

– Whether, and to what extent D should be held responsible for the consequences of his conduct: legal causation

Causation-in-Fact

Whether the Defendant’s carelessness, on the balance of probabilities, materially contributed to or increased the harm to the plaintiff.

Legal Causation

Could the Defendant have reasonably foreseen that kind of loss, or is it too remote?

    * To be successful in a claim for a remedy, P needs to prove that the loss for which he/she seeks compensation was caused in fact by the D’s wrongful act

    * Traditionally, the test whether D’s wrongful act did in fact cause the loss is the ‘but for’ test

The ‘But for’ Test

But for the D’s conduct, the injury to P would not have happened

Hoston v Berkshire

Facts: P injured hip in a fall. D failed to diagnose the extent of injury until 5 days later. The nature of the injury was such that there was a 75% chance of permanent disability. P developed the disability and brought action against D on the basis that but for the negligent failure to diagnose, the disability could have been avoided.
Held: No causation. The cause of the disability was the fall not the failure to diagnose.

Barnett v Chelsea Hospital Management Committee

Facts: A hospital Doctor, in clear breach of his duty of care, refused to examine a person who had attended an outpatient’s clinic complaining of vomiting. The P was suffering from arsenic poisoning and died soon afterwards. In these particular circumstances it was shown that even had the doctor examined the P when he was meant to, the D would still have died.
Held: As the loss did not flow from the refusal of treatment, there was deemed to be no liability.

CAUSATION

In the absence of a clear causal link, even negligent behavior will not attract liability.

The Function of the ‘But For’ Test

    * Two functions:

            – The primary (negative) function is to assist in eliminating factors which made no difference to the outcome
            – The second (positive) function: it helps to identify a condition or a factor which may itself then be subject to a test of legal causation

But for Test in HC

• Fitzgerald v Penn (1954)

– ‘Causation is all ultimately a matter of common sense….[It] is not susceptible of reduction to a satisfactory formula’

• March v E& MH Stramare (1991) *The but for test gives rise to a well known difficulty in cases where there are two or more acts or events which would each be sufficient to bring about the plaintiffs injury.  The application of the tests gives the results, contrary to common sense, that neither is a cause.  The application of the tests proves to be either inadequate or troublesome in various situations in which there are multiple acts or events leading to the plaintiff's injury (per Mason J)

The ‘But For’ Test is not Exhaustive

Bennett: ‘causation is essentially a question of fact to be resolved as a matter of common sense. In resolving that question, the ‘but for’ test , applied as a negative criterion of causation, has an important role to play but it is not a comprehensive and exhaustive test of causation; value judgments and policy considerations necessarily intrude’

Another 2 basis on which the discretion of the court is unfettered (not bound by shackles and chains) [value judgements and policy considerations]

Multiple Causes - Types

Where the injury or damage of which the plaintiff complains is caused by D’s act combined with some other act or event, D is liable for the whole of the loss where it is indivisible; where it is divisible, D is liable for the proportion that is attributable to him/her

• Concurrent sufficient causes

– Where two or more independent events cause the damage/loss to D ( eg, two separate fires destroy P’s property)

• Successive sufficient causes

Baker v