Torts - Topic6 Damages in Negligence
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By Student at Law
Published on 18/05/2007
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 Willoughby
Facts: D’s negligent driving caused the P to suffer severed left leg injury - 3 years after this accident the P was shot in the same leg in an armed robbery - as a result of the gun shot wound to the left leg it had to be amputated
Held: House of Lords: P was not only to be compensated for a stiff leg - the P is to be compensated for the loss of enjoyment of life - the second accident did not decrease the problems the P had - the first incident had not been obliterated by the second accident - Pearson L said the D1 should pay up until the time of the second incident…so in this case the problem/damage is DIVISIBLE
Jobling v Associated Dairies Ltd
Facts: degenerative changes in the spine - part of the normal ageing process - in this case there was a back injury at work which decreased the earning capacity of the worker by 50% - what happened was that spontaneously prior to the trial this age related degenerative change in the spine was activated (or “awoken” by the injury at work) - rendering the P totally incapacitated shortly after the accident - so after the accident was rendered 50% incapable of earning - after the onset of the degenerative disease 100% - so was this divisible or indivisible damage? What if the degenerative back disease (which was previously dormant) was aggravated/triggered or ‘awoken’ from the original breach which caused the back injury?
Held: D should be 100% liable as the back disease really was linked to the initial injury…Egg-shell skull…
“you must take your victim as you find them” - what does this mean? Analogy - egg shell skull - say you come up to someone and smack them on the head and in retaliation they smack you back on the head also, but you have the mythical “egg-shell skull” that causes your head to smash and brain oozes out etc… (but this wouldn’t have happened to a person with a ‘normal skull’) - then that is too bad for the guy who hit you - he must take his victim as he finds them
Think of the similar circumstances of the jobling case – this dormant back degeneration – another person may have not had the disease – but in this case
its too bad – you must take your victim as you find them…
Malec v Hutton 1990 - HC (possible future spinal condition)
Facts: P suffered from ‘brucellosis’ (disease) - employer was liable - what happened was that due to the negligence of the employer(D) this rendered the P totally incapacitated - difference between this case and Jobling is that compare in Jobling where the dormant back degeneration developed at the time of trial - in other words rendered 100% at the time of trial - in Malec it dealt with a future development of a spinal condition which was uncertain - so they were uncertain about it at the time of trial and what affect it would have on the spine …
Held: Nevertheless the P was found to be entitled to 100%...
* D2 is entitled to take P (the victim) as he finds him/her
* Where D2 exacerbates a pre-existing loss/injury (such as hasten the death of P) D2 is liable only for the part of the damage that is attributable to him
Legal Causation
* Factual causation in itself is not necessarily sufficient as a basis for D’s liability
* To be liable, D’s conduct must be the proximate cause of P’s injury
* P’s harm must not be too remote from D’s conduct
Remoteness
The law cannot take account of everything that follows a wrongful act; it regards some matters as outside the scope of its selection. In the varied wave of affairs, the law must abstract some consequences as relevant, not perhaps on grounds of pure logic but simply for practical reasons Per Lord Wright Liebosch Dredger v SS Edison [1933]
Case Law on Remoteness
* Earlier position in Common Law
– Re Polemis:- the ‘directness element’
“was held that D was liable because the fire was a direct result, eventhough it WAS NOT FORESEEABLE - Doesn’t apply anymore
* The current position:
– The Wagon Mound (No. 1)
– The Wagon Mound (No. 2)
The wagon mound (no.1) case
Facts: Employer of the D carelessly discharged furnace oil into a bay - the oil spread to the P’s wharf and at the P’s wharf there was a whole lot of welding going on - P thought they should suspend welding because of the oil spill – they suspend until they get advise from the D that it is now safe to continue work (expert said that the oil itself had a very high ignition point - so it was not too dangerous) - so they started welding again - there was some cotton waste on the water in and around the water that got in amongst the oil and the cotton waste caught fire from the welding - acted like a wick and created enough heat for the oil itself to ignite… in first instance they applied the rule in re polemis - not foreseeable but was a direct result etc.. so P initially won
Held: However when it went to the privy council - they said as the trial judge in the lower court said the damage was not foreseeable then the P lost - they found that the damage MUST BE FORESEEABLE - so this case overturns re: polemis (important legal principle is that Polemis was overturned because the damage must be foreseeable)…
The wagon mound (no.2) case
Facts: Very same set of circumstances - two vessels were moored at a wharf - vessels were damaged in the same fire as the case above - the trial judge found that the risk of fire was possible but only in very exceptional circumstances - so this judge said it was possible whereas in no.1 the judge said its not foreseeable
Held: Case went to the privy council - they said that whether a reasonable man having the knowledge and experience of the chief engineer of the wagon mound (ie the D) would have known that there was a real risk of the oil catching fire - they found the answer to that was yes - that there was a real risk of it catching fire and the fact that the risk was small did not justify the D taking no steps - even though it was a small risk the D should have taken steps to eliminate the risk…
So no.1 & no.2 totally different…P succeeds in 2 and not 1 - same facts but different P’s
The cases could have gone either way - probably at the end of the day just came down to experts and most persuasive evidence…ie facts
Intervening Act
Haber v Walker [1963]: Smith J - An intervening act breaks the chain of causation and may relieve D of liability. To be sufficient to break the chain, it must either be a: human action that is properly to be regarded as voluntary or a causally independent event the conjunction of which with the wrongful act in or omission is by ordinary standards so extremely unlikely as to be turned a coincidence
Facts: 18 months after a Motor Vehicle Accident, P’s husband committed suicide - while mentally depressed due to the MVA - the wrongs act required the P to prove that the death was immediately due to the MVA - so P had to prove that the suicide (18 months afterward) was causally related - jury found the death was caused by the MVA but the suicide was not reasonably foreseeable - supreme court said - reasonable foresee ability was not required in this case and even though the jury found there was no reasonable foresee ability from the MVA .
Held: Nevertheless there was a maintenance of the chain of causation and as such the P won
* A foreseeable ‘intervening act’ does not break the chain of causation
– Chapman v Hearse
* Negligent medical treatment subsequent to negligent injury would not necessarily remove liability for D1 unless the subsequent injury was ‘inexcusably bad’, so obviously unnecessary or improper that it fell outside the bounds of reputable medical practice
– Mahony v J Kruschich Demolitions
Damage in Negligence
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 Willoughby
Facts: D’s negligent driving caused the P to suffer severed left leg injury - 3 years after this accident the P was shot in the same leg in an armed robbery - as a result of the gun shot wound to the left leg it had to be amputated
Held: House of Lords: P was not only to be compensated for a stiff leg - the P is to be compensated for the loss of enjoyment of life - the second accident did not decrease the problems the P had - the first incident had not been obliterated by the second accident - Pearson L said the D1 should pay up until the time of the second incident…so in this case the problem/damage is DIVISIBLE
Jobling v Associated Dairies Ltd
Facts: degenerative changes in the spine - part of the normal ageing process - in this case there was a back injury at work which decreased the earning capacity of the worker by 50% - what happened was that spontaneously prior to the trial this age related degenerative change in the spine was activated (or “awoken” by the injury at work) - rendering the P totally incapacitated shortly after the accident - so after the accident was rendered 50% incapable of earning - after the onset of the degenerative disease 100% - so was this divisible or indivisible damage? What if the degenerative back disease (which was previously dormant) was aggravated/triggered or ‘awoken’ from the original breach which caused the back injury?
Held: D should be 100% liable as the back disease really was linked to the initial injury…Egg-shell skull…
“you must take your victim as you find them” - what does this mean? Analogy - egg shell skull - say you come up to someone and smack them on the head and in retaliation they smack you back on the head also, but you have the mythical “egg-shell skull” that causes your head to smash and brain oozes out etc… (but this wouldn’t have happened to a person with a ‘normal skull’) - then that is too bad for the guy who hit you - he must take his victim as he finds them
Think of the similar circumstances of the jobling case – this dormant back degeneration – another person may have not had the disease – but in this case
its too bad – you must take your victim as you find them…
Malec v Hutton 1990 - HC (possible future spinal condition)
Facts: P suffered from ‘brucellosis’ (disease) - employer was liable - what happened was that due to the negligence of the employer(D) this rendered the P totally incapacitated - difference between this case and Jobling is that compare in Jobling where the dormant back degeneration developed at the time of trial - in other words rendered 100% at the time of trial - in Malec it dealt with a future development of a spinal condition which was uncertain - so they were uncertain about it at the time of trial and what affect it would have on the spine …
Held: Nevertheless the P was found to be entitled to 100%...
* D2 is entitled to take P (the victim) as he finds him/her
* Where D2 exacerbates a pre-existing loss/injury (such as hasten the death of P) D2 is liable only for the part of the damage that is attributable to him
Legal Causation
* Factual causation in itself is not necessarily sufficient as a basis for D’s liability
* To be liable, D’s conduct must be the proximate cause of P’s injury
* P’s harm must not be too remote from D’s conduct
Remoteness
The law cannot take account of everything that follows a wrongful act; it regards some matters as outside the scope of its selection. In the varied wave of affairs, the law must abstract some consequences as relevant, not perhaps on grounds of pure logic but simply for practical reasons Per Lord Wright Liebosch Dredger v SS Edison [1933]
Case Law on Remoteness
* Earlier position in Common Law
– Re Polemis:- the ‘directness element’
“was held that D was liable because the fire was a direct result, eventhough it WAS NOT FORESEEABLE - Doesn’t apply anymore
* The current position:
– The Wagon Mound (No. 1)
– The Wagon Mound (No. 2)
The wagon mound (no.1) case
Facts: Employer of the D carelessly discharged furnace oil into a bay - the oil spread to the P’s wharf and at the P’s wharf there was a whole lot of welding going on - P thought they should suspend welding because of the oil spill – they suspend until they get advise from the D that it is now safe to continue work (expert said that the oil itself had a very high ignition point - so it was not too dangerous) - so they started welding again - there was some cotton waste on the water in and around the water that got in amongst the oil and the cotton waste caught fire from the welding - acted like a wick and created enough heat for the oil itself to ignite… in first instance they applied the rule in re polemis - not foreseeable but was a direct result etc.. so P initially won
Held: However when it went to the privy council - they said as the trial judge in the lower court said the damage was not foreseeable then the P lost - they found that the damage MUST BE FORESEEABLE - so this case overturns re: polemis (important legal principle is that Polemis was overturned because the damage must be foreseeable)…
The wagon mound (no.2) case
Facts: Very same set of circumstances - two vessels were moored at a wharf - vessels were damaged in the same fire as the case above - the trial judge found that the risk of fire was possible but only in very exceptional circumstances - so this judge said it was possible whereas in no.1 the judge said its not foreseeable
Held: Case went to the privy council - they said that whether a reasonable man having the knowledge and experience of the chief engineer of the wagon mound (ie the D) would have known that there was a real risk of the oil catching fire - they found the answer to that was yes - that there was a real risk of it catching fire and the fact that the risk was small did not justify the D taking no steps - even though it was a small risk the D should have taken steps to eliminate the risk…
So no.1 & no.2 totally different…P succeeds in 2 and not 1 - same facts but different P’s
The cases could have gone either way - probably at the end of the day just came down to experts and most persuasive evidence…ie facts
Intervening Act
Haber v Walker [1963]: Smith J - An intervening act breaks the chain of causation and may relieve D of liability. To be sufficient to break the chain, it must either be a: human action that is properly to be regarded as voluntary or a causally independent event the conjunction of which with the wrongful act in or omission is by ordinary standards so extremely unlikely as to be turned a coincidence
Facts: 18 months after a Motor Vehicle Accident, P’s husband committed suicide - while mentally depressed due to the MVA - the wrongs act required the P to prove that the death was immediately due to the MVA - so P had to prove that the suicide (18 months afterward) was causally related - jury found the death was caused by the MVA but the suicide was not reasonably foreseeable - supreme court said - reasonable foresee ability was not required in this case and even though the jury found there was no reasonable foresee ability from the MVA .
Held: Nevertheless there was a maintenance of the chain of causation and as such the P won
* A foreseeable ‘intervening act’ does not break the chain of causation
– Chapman v Hearse
* Negligent medical treatment subsequent to negligent injury would not necessarily remove liability for D1 unless the subsequent injury was ‘inexcusably bad’, so obviously unnecessary or improper that it fell outside the bounds of reputable medical practice
– Mahony v J Kruschich Demolitions