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CONTRIBUTORY NEGLIGENCE (PARTIAL DEFENCE-Statutory)

Law Reform (Contributory Negligence) Act 1945: if damage is partially from his own fault his damages will reduced. (It used to be a full defence).

Pitts v Hunt [1991]: two friends on a motorcycle to hunt. Driver is uninsured and drunk and encouraged by his friend. The passenger was culpable because he knew and he encouraged it. 'The claim shall not be defeated by reason of the fault of the person suffering damage.' Damages reduce 50%.

Is there:

IS THE CLAIMANT AT FAULT?

Froom v Butcher: 'He is guilty of contributory negligence if he ought reasonably to have foreseen that, if he did not act as a reasonable prudent man, he might be hurt himself. (Road accident with no fault on C's part but he was not wearing seatbelt.)

Reeves v Commissioner[2000]: can share responsibility for suicide, intentional and negligent acts are both sufficient.

Phethean-Hubble v Coles [2012]: factual scenario needs to be considered. Responsibility not reduced because he was a child as he 16 and an experienced bike rider.

WAS THEIR SUFFICIENT CAUSATION?

St George v Home Office: drug abuser who suffers from epilepsy and convulsions. Prison staff put him in top bunk and he falls out and suffers brain injury. His own previous conduct was too remote to be a cause.

APPORTIONMENT

Jackson v Murray: girl dropped off from school bus and ends up being hit by a car. Car driver has breached duty. She was only 13. 'Account must be taken not only of the relative blameworthiness of the parties but also the causative potency of their acts.' Factual assessment.

VOLENTI NON FIT INJURIA
'To one who volunteers, not harm is done'

Morris v Murray: both parties are drinking heavily and then go to fly aeroplane. Weather conditions are bad. Claimant is actively involved. Contributory would only be partial so this is a better defence. 'The wild irresponsibility of the venture is such that the law should not intervene.'

Would the reasonable person have behaved this way?

Corbett v Cumbria Kart Racing Club: C got injured. There wasn't a sufficient barrier and the ambulance was in the wrong place. C signed competitors form but he would have assumed there would be a reasonable standard of safety.

Does not work for:

Read v Lyons: employees are not voluntarily in working scenarios where there are dangers.

Baker v Hopkins: doctor voluntarily goes in a danger area. This does not permit a defence as someone is assisting.

Reeves: can't use this for suicide.

ILLEGALITY
From a dishonourable cause an action does not arise. This is prevent promotion of unlawful conduct, provide distributive justice, and it would not be an appropriate standard for illegal enterprises.

Holman v Johnson (1775): beginning of defence.

Gray v Thames Trains: stabbing the pedestrian. Multiple policy considerations.

Clunis: discharged from medical care before he should have been. Argued that he would not have committed manslaughter if he had not been released but not allowed. (Narrow interpretation)

Joyce v O'Brien: two men agree to steal ladders. One ends up being thrown out the back of the van. How can you measure the standard of a getaway driver?

Delaney v Pickett [2011]: They had cannabis in the car. Here it was allowed because the tort and illegal issue were not related.

Fisher Argument: court should not get involved in claimant - defendant relationship.

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Are the legal ways of reducing liability by remoteness or a novus actus interveniens?

REMOTENESS

Polemis [1920]: starting point for legal causation. Prior to conception of negligence.

TYPE OF HARM MUST BE FORESEEABLE

Wagon Mound No. 1: oil is spilled and left floating on the water which ends up leading to fire damage of a wharf. Polemis disregarded as it is not fair for liability to occur for unforeseeable events of any kind if they are direct. Fire damage was not foreseeable as it required cotton debris as well.

Extent of harm is irrelevant.

Jolley v Sutton LBC: two boys decide to repair a boat which ends up falling on one. The defendants don't need to see precise injury but 'the nature of the risk which ought to have been foreseen.' Is this too wide? Should it only apply to children?

Corr v IBC Vehicles: claimant suffers injury at work from an unexpected swing from machinery. The employer was responsible. He suffered PSTD and severe depression and received ECC treatment. He eventually committed suicide. The court said that depression was not too remote. Suicide was not unusual for depressive illnesses and was the same type of harm as depression.

THIN SKULL RULE

Defendant must take victim as they find them and defendant will be liable for everything even if unforeseen.

Smith v Leechbrain: claimant is splashed with molten metal which causes cancer. He was predisposed to the condition.

Robinson v Post Office: worked slipped on oil and grazed shin; he needed a tetanus shot but was not given the test dose. He develops encephalitis which he had a higher risk of developing. The Post Office were liable for this. Normally they would not be liable for the extent of the harm, but rule applies.

INTERVENING ACTS

Is the second act an...? Often this will satisfy 'but for' and intervening acts usually are implemented for policy reasons.

ACT OF NATURE

Carslogie Steamship Co v Royal Norwegian Govt [1952]: D's negligence causes a collision. It is sent to New York for repairs. It suffers severe damage from bad weather. Claimant's bring case for loss of use. The intervening act prevented liability attaching to the defendant.

ACTS OF CLAIMANT

NO BREAK IN CHAIN OF CAUSATION

Corr v IBC Vehicles: was throwing himself off the multi-storey building a novus actus? The court held that it was not because the mental illness prevented him from making an informed decision.

Wieland v Cyril Lord Carpets [1969]: a neck injury was caused by negligence and the claimant could not use her glasses properly. This caused her to slip down the stairs. 'It is enough if it is foreseeable that one injury may affect a person's ability to cope with the vicissitudes of life.' Her acts were not unreasonable.

Reeves v Commissioners: the police put a prisoner under suicide watch but he hangs himself. Failure to perform duty led to the suicide so it was not an intervening act.

CHAIN OF CAUSATION BROKEN

McKew v Holland: a leg injury is caused by negligence. The claimant falls down the stairs and breaks his ankle but the court decided that it was not reasonable to attempt to walk down the stairs with a child. He acted unreasonably.

Spencer v Wincampton: claimant goes to fill car with petrol without his aid. The level of unreasonableness must be high to break chain. Contributory negligence.

ACT OF A THIRD PARTY

Dorset Yacht: 'The action must at least have been something very likely to happen if it is not to be regarded as novus actus.' The third party's action must be unreasonable and unforeseeable. The defendant's impact is no longer operative.

Lamb v Camden LBC [1981]: A burst water main caused damage which was exacerbated by squatters who entered the house. The council argued that this was a novus actus which was confirmed by the court. Oliver LJ: 'Circumstances in which the court would require a degree of likelihood amounting almost to inevitability before it fixes a defendant with responsibility.' Degree needs to be almost inevitability.

Knightly v Johns: a car driver caused an initial accident, and then an officer negligently forgets to close the tunnel causing another to come of their motorbike. Factual causation established but:

need reasonable foreseeability of the act.

it needs to be natural and probable.

negligent and positive acts are more likely to break the chain of causation than omissions.

Robinson v Post Office [1974]: was the doctor's treatment negligent? No, gross negligence is required before their action becomes unforeseeable.

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'BUT FOR' TEST

Barnett v Chelsea and Kensington Hospital: had the claimant been treated for arsenic within 75 minutes he may have survived. Therefore, regardless of the doctor's intervention he would have died anyway.

Balance of Probabilities:

This is lower than the criminal test of beyond reasonable not.

In Civil cases it is lower and more likely than not.

McWilliams v Sir Williams Arrol [1962]:

The counter factual scenario is not always obvious and courts may have to infer.

At a shipbuilding erector a worker fell from 75ft and died. His safety belt had been transferred to another site.

The employers argued that the claimant would not have worn the belt even if it was available as it was common practice.

The damage would have occurred anyway as the claimant would more likely than not declined to wear the belt.

EXCEPTIONS

CONCURRENT CAUSES

Summers v Tice: where two are negligent both are equally liable (even though this doesn't follow the 'but for' test. American case so not binding. Quail shooting.

Fitzgerald v Lane: man is hit by a car and bounces off the wind shield and then is hit by another car. He suffers a spinal injury. Even though there is a delay between the two impacts it is treated as concurrent.

It would be unfair for the claimant to be left without remedy, but also unfair for only one defendant to cover the losses. Both were equally negligent. This is a policy decision based on justice.

SUCCESSIVE CAUSES (not much coherence)

There is an event which causes damage followed by another independent event.

TORT + TORT - Performance Cars v Abrahms: damage on a Rolls Royce required respraying and was then damaged again. Should the second person be responsible if there will already be a respray? 'The necessity for respraying was not the result of the defendant's wrongdoing because that necessity already existed.'

Baker v Willoughby: a car overtook another hitting a pedestrian causing permanent damage to his leg. He is later shot in the same leg so it has to be amputated. The car driver is held to be liable for all of the injury. It is a very criticized decisions. Lord Pearson says that the second defendant would only be responsible for additional damage.

TORT + NON TORT - Jobling v Associated Dairies Ltd: the floor at work was slippy causing a fall and back injury. He then suffers from a naturally occurring condition which will disable him. In this case liability is not extended beyond a natural condition. (So, liability does not extend in non-tort but it does for tort.)

TORT + C'S ACT - Gray v Thames Trains [2009]: a man already had PTSD from a train accident. After a man walks out in front of him he stabs a man to death. He claims for lost earnings in prison. Uses the same test as Jobling so you can claim up to the second event.

NON TORT + TORT - Reaney v University Hospital of North Staffordshire NHS Trust [2015]: an initial condition develops. Then bed sores develop from negligence. More care is now required. 'The claimant can only be liable for additional needs.'

MEDICAL NON-DISCLOSURE

Chester v Ashfar [2005]: doctor's have an established duty towards patients. Patient argued that they were not fully informed about the procedure where there was a 1-2% chance of developing a neurological condition which she later develops. 'As a result of the surgeon's failure to warn the patient, she cannot be said to have given informed consent to the surgery in the full legal sense.' There were dissenting judgments by Bingham.

MULTIPLE CUMULATIVE CAUSES

Being exposed to something that could cause you to develop a disease. The harm is invisible. The severity doesn't change, just the chance of contraction. ONLY for divisible injuries.

Bonnington Castings v Wardlaw [1956]: machinery in a factory created silica dust. The extractor fan did not work so there was excessive dust which breached the duty. Some innocent and some tortious dust. 'But for' nor balance of probabilities clear. The test requires:

More than minimal contribution from tortious event (de minimis)

Defendant received 100% contribution.

Now awarded proportionately in Jones v Sec of State for Energy and Climate Change [2012].

MULTIPLE DEFENDANTS AND INDIVISIBLE INJURIES

McGhee v National Coal Board: claimant works in a hot kiln and dust was getting stuck to his skin and causing a skin condition. Can't use but for or balance of probabilities. It can't be proved that the harm was made worse but increasing the risk which are treated the same.

Fairchild v Glenhaven Funeral Services: a worker is exposed to asbestos in various work settings. Therefore the causal exposure is not known. In this case other employers were no longer in existence. Nevertheless they were still held liable. It is fairer for the claimant to receive redress than not. The following conditions need to be met:

evidentiary gap

material increase to the risk of harm

all breached duty of care

same causal agent

Should Fairchild apply if there are some natural causes?

Wilsher does not fit the Fairchild principle because there were different causes that weren't the same causal agents. There were multiple causes and evidentiary gap however.

Barker v Corus (UK) [2006]: there were different causes including a non-tortious exposure which was self-induced. In this case liability would be proportionate. The Compensation Act 2006 s 3 immediately reverses this so it is full liability although proportionate amounts can be recouped from other parties.

Sienkiewicz v Grief (UK) [2011] UKSC: exposed to asbestos through work but there was also low background levels of fibres where she was living.

Should Fairchid only be applied to asbestos cases?

Should insolvency risk fall onto the claimant or defendant? Currently it only falls on the defendant when asbestos.

Is it fair to make the defendant liable when they may not be responsible?

Multiple Causes

Take the facts of Wilsher, only 1 of 5 factors causing the death was from negligence.

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The REASONABLE PERSON test.

The standard of care is judged by this test.

It is supposed to be objective although it can be difficult to be purely objective: age, specialist knowledge, experience, disability, D's perception. These subjective elements form on an objective test.

Blyth v Birmingham Waterworks (1856): 'negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do.'

This is prior to Donoghue v Stevenson.

Experience (this does not affect the standard but more senior positions may raise the bar as specialist knowledge will be considered)

ROAD TRAFFIC - Nettleship v Weston [1971]: 'the learner driver may be doing his best, but his incompetent best is not good enough.' The insurer is the defence and claims that the claimant cannot be reasonably expected to drive like an experienced driver. The court refused this. Megaw LJ said that the law could not take into account all the different standards and keep the standard certain.

JUNIOR DOCTORS - Wilsher v Essex AHA: A catheter was incorrectly inserted into a vein giving the wrong oxygen level. Lord Mustill said :'it would be a false step to subordinate the legitimate expectation of the patient that he will receive from each person concerned with his care a degree of skill appropriate to the task which he undertakes, to an understandable wish to minimise the psychological and financial pressures on hard-pressed young doctors.' Inexperience did not affect the standard expected.

Age (this does not apply to adults of different ages but it will with children)

Mullin v Richards: Children fought with plastic rulers which shattered and blinded someone. The court would use the test as 'ordinarily prudent and reasonable child' of the same age.' This was still considered to be objective. They cited an Australian case (McHale v Watson) where being slow-witted etc was not permitted although defences could be used where necessary. The law considers children to lack foresight.

Carmarthenshire CC v Lewis: Claims will only be considered where they can take 'precautions for their own safety and that of other people.'

Orchard v Lee: children run around and run into an assistant who is injured. The child met the standard of a reasonable thirteen year old.

Disability (it will be taken into account if you are not aware of your illness)

Mansfield v Weetabix: The defendant suffered from undiagnosed hypoglycaemic states which led to blackouts. He crashed into a shop. The appropriate standard of care was of a reasonable driver but was unaware of his condition so no breach of duty.

Roberts v Ramsbottom: an elderly man drove off whilst suffering from a stroke without realising. He crashed and drove off again and crashes into someone else. The court held that he should have been aware of his condition so is judged by the standard of a reasonable driver.

Dunnage v Randall: 'The actions of a defendant, who is merely impaired by medical problems, whether physical or mental, cannot escape liability if he causes injury by failing to exercise reasonable care.' An uncle with schizophrenia sets fire to his car and dies. He can only claim if his uncle is negligent. As he was not in control he could not be negligent.

Sporting Events

Spectator and Participant

Wooldrige v Sumner: A photographer with no prior knowledge was at a horse show. He sits too close and ends up getting trampled. No breach of duty as there was no 'reckless disregard for the safety of spectators.'

Smoldon v Whitworth: competitors can be all but oblivious to spectators. Spectators should know what they are watching so the standard for a breach is very low. There is also not much time for consideration.

Participant and Participant

Condon v Bhatti:

Participant and Referee

Rules only apply during sport, not during breaks. The referee must not act recklessly towards the participant.

Vowles v Evans: broken neck due  to collapsed scrum. He should not have been on the front row. Not a decision taken during the hurly burly of the game but during stoppage.

ASSESSING BREACH

Could the reasonable person have foreseen the damage that happened and taken reasonable precautions? There are four factors.

Bolton v Stone

Magnitude and Probability

Someone is hit by a ball. It had only happened 6 times in 30 years.

'The test to be applied here is whether the risk of damage to a person on the road was so small that a reasonable man in the position of the appellants, considering the matter from the point of view of safety, would have thought it right to refrain from taking steps to prevent the danger.'

Paris v Stepney LBC

Gravity of Harm

A mechanic lost vision in an eye at work (it was his only remaining eye).

A duty is owed to each individual employee. A reasonable person would have given goggles to a one eyed man.

Latimer v AEC

Cost of Precautions

Claimant suffered injury from slipping on sawdust.

'A reasonably careful employer would have shut down the works or that the respondents ought to have taken the drastic step of closing the factory.'

Tomlinson v Congleton BC

Social Benefit

'It is unjust that the harmless recreation of responsible parent and children with buckets an spades on the beaches should be prohibited in order to comply with what is thought to be a legal duty to safeguard irresponsible visitors against dangers which are perfectly obvious.'

DOCTORS - Bolam: 'a doctor is not guilty of negligence if he has acted in accordance with a practice accepted as being proper by a responsible body of medical men in that particular art.' A patient wasn't given relaxants before receiving electric shock therapy and suffered serious injuries.

If you are acting in a way that your peers would do you are acting reasonable. This is evening if 'there is a body of opinion who would take a contrary view.'

This is criticised because it is not judged by law and requires only a small group of people to agree.

De Freitas v O'Brien: only 11 specialists could be peers and only 2 would agree with the defendant.

Overprotective and deferential to doctors. Courts are being precluded from making changes. Courts should be the arbiter of professional evidence.

Bolitho v City and Hackney HA (gloss): a child is brought to hospital but not seen by a doctor. Eventually they die.

Bolam is reaffirmed but 'in a rare case, it can be demonstrated that the professional opinion is not capable of withstanding logical analysis.'

Then it wouldn't be considered reasonable. But it is rarely applied.

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Wagon Mound [1961]: 'There can be no liability until the damage is done. It is not the act but the consequences on which tortious liability is founded. There is no such thing as negligence in the air.' (There is a similar quote in Donaghue v Stevenson [1932].

Rothwell v Chemical & Insulating Co Ltd [2007]: the de minimis principle. An action for negligence must be serious enough. Trivial acts will not suffice.

Anxiety on its own is not enough because it is not a psychiatric condition; it must be attached to another form of actionable damage.

Hinz v Berry [1970]: damages are available for 'any recognisable psychiatric illness caused by the breach of duty by the defendant.' (Originally called 'nervous shock'.)

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General Duty of Care

Donoghue v Stevenson [1932]: 'persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.' People you can foresee you will do harm to.

Foreseeability of harm

Proximity

Caparo Industries v Dickman [1990] overruled Anns. This is a case of pure economic loss. This can be used for new scenarios but cautiously as changes are incremental. There are three requirements:

1. Foreseeability - used broadly to establish a duty, more narrowly for breach and strictly for remoteness (type of harm).

2. Proximity - can include time and space or relationship.

3. Fair, just and reasonable imposition of duty - this includes policy reasons and indeterminate liability where insurance would be better to deal with it.

Anns established that generally there needs to be sufficient proximity/neighbourhood and absence of any negativing elements.

Established relationships:

Doctor/patients: Barnett v Chelsea and Kensington Hospital Management Board

Teacher/students: Lewis v Carmarthenshire CC

Employer/employee: Walker v Northumberland County Council

Road users: Nettleship v Weston

Prison/Prisoner: Dorset Yacht; Reeves v Commissioner for the Police of the Metropolis

Assumption Reponsibility: Hedley Byrne

EXCEPTIONAL DUTIES OF CARE

OMISSIONS

Generally there is no duty to affirmative action.

Harnett v Bond(1924): misdiagnosing measles could be an omission to correctly diagnosis or an action of incorrectly diagnosing.

Stovin v Wise: It is necessary 'to be able to say, according to common sense principles of causation, that the damage was caused by something which the defendant did.' 'Something more is required than being a bystander.'

Distinguishing between act and omission: 'one must have regarded to the purpose of the distinction as it is used in the law of negligence, which is to distinguish between regulating the way in which an activity may be conducted and imposing a duty to act upon a person who is not carrying on any relevant activity.' With omissions they are usually outside of a scenario, but 'omissions' where you are negligently performing an activity where they have responsibility.

Creating a Source of Danger:

Assumed Responsibility

Watson v BBBC: boxer sustained a brain haemorrhage. Treatment was delayed.

Position of Responsibility

Barnett v Chelsea and Kensington Hospital Management Board: 'there was here such a close and direct relationship between the hospital and the watchmen that there was imposed upon the hospital a duty of care.'

THIRD PARTIES

Dorset Yacht: 'There was a special relation in that the officers were entitled to exercise control over boys...The event which are said to have happened could reasonably have been foreseen.' Control over wrongdoer and high foreseeability which creates proximity.

Selwood: highly foreseeable harm.

Palmer v Tees Area Health Authority: nursery case, 'it is at least necessary for the victim to be identifiable to establish proximity.' This is similar to Hill; the authority cannot act out their duty of care if they don't know who the potential victim may be.

POLICE

Requires negligent manner of statutory power. I.e. an officer crashing his car whilst doing a non-public performance act.

Public duty of care test:

1. High level policy matters - allocation of scarce resources for example. The courts will not adjudicate on this.

2. Justiciability - 'the first requirement is to show that the decision was outside the ambit of the discretion altogether.' Wednesbury unreasonable.

3. Caparo test - foreseeability, proximity, and fair just and reasonable. This is usually the clinch: it cuts across the statutory system, it is delicate and usually targets one wrongdoer from a large group, it can encourage defensive practice, it breeds too much litigation and there are other alternatives.

X v Bedfordshire County Council: no intervention made for 5 years regarding a group of siblings and suspected child abuse where child was wrongly removed from family.

Z v UK at ECtHR: UK said there was no blanket immunity and each case was assessed on merits of the case: 'the court is satisfied that the law of negligence as developed in the domestic courts...does not disclose the operation of an immunity.'

Hill v West Yorkshire Police [1989]: omissions and third party liability.

No proximity because victim unknown.

Public policy, similar to those identified in X.

Osman v UK [1998]: harassment from a teacher. Parties were known so proximity known. Still omissions and third party.

Brooks v Commissioner of Police of the Metropolis [2005]: 'If the core principle in Hill stands, as it must, these pleaded duties of care cannot survive.'

Smith v Chief Constable of Hertfordshire [2008]: dissenting judgment by Bingham as police know people and are involved - If the police know people 'B owes A a duty to take reasonable steps to assess such threat and, if appropriate, take reasonable steps to prevent it being executed. I shall for convenience of reference call this the liability principle'.

Michael v Chief Constable of South Wales[2015]: Hill affirmed even though arguably an act, not an omission.

PSYCHIATRIC CARE

Difficult area: indeterminate liability, floodgates, disproportionate burden and more difficult to prove.

Victorian Railways Commissioners v Coultas (1888): 'damages arising from mere sudden terror unaccompanied by any actual physical injury...cannot be considered a consequence.'

Hinz v Berry: recognises PTSD, Pathological Grief Disorder and Clinical Depression.

Worry, grief, distress etc. are not actionable.

HILLSBOROUGH: Indeterminate liability as the police could not say exactly who would have been affected.

Alcock v South Yorkshire Police : I am of the opinion that in addition to reasonable foreseeability liability for injury in the particular form of psychiatric illness must depend in addition upon a requisite relationship of proximity between the claimant and the party said to owe the duty.'

Primary victims: The harm happened to you.

Secondary victims: The harm happened to someone else.

'I would not seek to limit the class by reference to particularly relationships...the kinds of relationship which may involve close ties of love and affection are numerous.' So spouses and parents are presumed relationships and anything else will need individual consideration.

'All watched scenes from Hillsborough on television, but none of these depicted suffering of recognizable individuals.' Need to watch scene with unaided senses.

Psychiatric harm needs to be foreseeable to ordinary person.

Page v Smith: minor car accident without physical injuries. The claimant was susceptible to chronic fatigue illness which was set off again.

'It could not be right that a negligent defendant should escape liability for psychiatric injury just because, though serious physical injury was foreseeable, it did not in fact transpire... The negligent defendant, or more usually his insurer, takes his victim as he finds him.' The thin skull rule applies and foreseeability is still satisfied if physical injury can be foreseen.

White v Chief Constable of South Yorkshire: police officers who suffered psychiatric injury brought a claim arguing that they were primary victims. The also argued that the were rescuers and should be given a special status.

They were treated as secondary victims but there was no tie of love and affection.

Allocation of resource was part of the policy considerations.

STRESS AT WORK

Sufferers are not suffering from one event, nor is there risk of foreseeable injury.

Walker v Northumberland County Council [1995]: 'there is no logical reason why risk of psychiatric harm should be excluded from the scope of an employer's duty of care.'

Hatton: appeals for stress at work. Foreseeability must be proven by Lady Hale's test:

1. Injury to health

2. Attributable towards stress at work.

Hartmann: a healthcare officers works at the prisoner and has dealt with suicides. Foreseeability was reasonable. Difficult to categorize as primary or secondary victim. But breach was not surpassed as counselling was provided. Does this conflict with White as it was a shocking event?

Butchart v Home Office: there was a pre-Tort relationship. The claimant suffered stress because of knowledge of pleural plaques. Greaves suffered pathologically from the knowledge. This is about the future rather than a traumatic event. The employer could not foresee the harm.

W v Essex County Council [2000]:a known sex offender was placed with a family although they had specifically asked not to. They are not primary victims as they were not abused but they are not secondary victims either they are suffering from the psychiatric harm. The court allows a duty of care. The principle of primary/secondary victims do not work and nothing new is given.

Pharell v Health Authority: wrong baby was given to father and he suffered psychiatric illness. Physical injury could not be foreseen. He was considered a primary victim which stretches the definition as psychiatric harm was reasonably foreseeable.

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Andy's suicide was foreseeable given the personality change.
Doctor's negligence may not have been a novus actus which means Blandings are still liable. Robinson v Post Office or Webb v Barclays.

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May have been negligent by failing to check for allergies.

Controversial therapy prescribed.

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Responsible for negligence which caused Andy's injury.

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Mistreatd by Andy.
Develops kidney problem and requires antibiotics.
Suffers reaction to antibiotics and goes into liver failure.
He dies a week later.

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Informed by a concerned neighbour about the children's welfare.

Council is short staffed.

Children not seen for a fortnight.

Policy reasons mean that the council will probably not be liable. X v Minors?

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Abandoned by Carole.

Mistreated by Andy and not seen by social services.

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Struggles to cope with Andy's aggression and moves out of the family home leaving children behind.

Rescues Debbie and Evan before social services get involved.

Takes them to hospital: Debbie recovers but Evan develops Kidney problems.

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Crushed by a malfunctioning machine.

Suffered serious head injuries, developed a psychological disorder and his personality changed.

Mistreats Debbie and Evan because he resents being left with them. Shouts at them and deprives them of food.

Locks them in a room for three days while he is drinking.

Andy commits suicide because of Evan's death.

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Andy had been employed for less than a month as an engineer at a factory owned by Blandings Plc when he was crushed by a malfunctioning machine. As a result of the serious head injuries he sustained, he developed a psychological disorder and underwent a dramatic personality change, turning from a mild-tempered family man into an angry and aggressive loner. Unable to cope with his aggression, his wife Carole moves out of the family home 6 months after the accident and leaves behind their two children, Debbie and Evan. Andy resents having to look after the children and he soon begins to mistreat them. He regularly shouts at them and deprives them of food. One day, he locks them in a bedroom and goes on a three-day drinking binge. During this three-day period, a neighbour contacts the child protection unit at Brumshire County Council to express concern for the welfare of Debbie and Evan. Unfortunately the unit is severely short-staffed at the time as the majority of its employees have been struck down with norovirus and it is a fortnight before a social worker is sent out to the house to investigate. By this point, the children have already been rescued by their mother, Carole.

Having returned to the family home to find her children in a severely dehydrated and malnourished state, Carole had immediately taken them to the hospital.  Several days later, Debbie is well enough to be discharged. Evan however has developed kidney problems and he is put on a course of strong intravenous antibiotics by Dr Howard. Unfortunately he suffers an allergic reaction to the antibiotics and as a result his liver starts to fail. Dr Howard prescribes a controversial new form of treatment for the liver failure but it is not successful and Evan dies a week later.

Consumed with guilt over his son’s death, Andy commits suicide.

Discuss the potential rights and liabilities in tort of each of the parties involved.

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The claimant had undergone an amputation due to an accident at work caused by negligence. At a petrol station he tried to move without crutches and injured himself further.

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The claimant was already injured due to negligence at work. However, he climbed steep stairs, fell down them and further injured himself.

Lord Reid:'If the injured man acts unreasonably, he cannot hold the defender liable for injury caused by his own unreasonable conduct. His unreasonable conduct is novus actus interveniens . The chain of causation has been broken and what follows must be regarded as caused by his own conduct and not by the defender's fault or the disability caused by it.' 25

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(Medical Negligence)

A doctor negligently failed to administer a test dose to a patient who later turned out to be allergic to the medication. The court found that the Post Office could not use the doctor's negligence as a novus actus interveniens for the encephalitis he developed.

The doctor had breached his duty, but he had not cauesd the brain damage, so breach was not followed by consequential harm which is necessary for actionable damage.

Orr: 'We are by no means satisfied, having regard to subsequent references ... that in approving this passage Lord Simonds was intending to convey that treatment by a doctor falling short of want of reasonable care could amount to a novus actus.' 1189

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Home Office v Dorset Yacht Co Ltd [1970]

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Home Office v Dorset Yacht Co Ltd [1970]

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Due to the Borstal staff's breach of duty, young borstal boys vandalised private property. Public policy did not exclude the duty of care.

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After a suffering an accident that left him disfigured the victim committed suicide. The defendants submitted that suicide was not foreseeable. It was held that the consequence of suicide was not outside the scope of duty.

Lord Bingham: 'Here, the inescapable fact is that depression, possibly severe, possibly very severe, was a foreseeable consequence of this breach.... but the principle that a tortfeasor who reasonably foresees the occurrence of some damage need not foresee the precise form which the damage may take in my view applies. I can readily accept that some manifestations of severe depression could properly be held to be so unusual and unpredictable as to be outside the bounds of what is reasonably foreseeable, but suicide cannot be so regarded  902-903

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Two boys tried to fix an old speed boat. They jacked it up but the boat fell leaving one boy a paraplegic. The court found that the behaviour of jacking up the boat was not too far removed from that of horseplay as it was mimicry of adult behaviour. Therefore the council were liable for not moving the boat.

Lord Steyn: 'For my part the judge's reasons for that finding are convincing in the context of teenage boys attracted by an obviously abandoned boat. And I do not regard what they did as so very different from normal play. The judge's observation that play can take the form of mimicking adult behaviour is a perceptive one.' 1089

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The claimant was burned on the lip by molten metal, due to inadequate protection in the work place. As he already had a pre-malignant condition, it was established that but-for the burn, the defendant would not have developed cancer which killed him. There was no contributory negligence.

Lord Parker: ' For my part, I am quite satisfied that the Judicial Committee in the Wagon Mount case did not have what I may call, loosely, the thin skull cases in mind. It has always been the law of this country that a tortfeasor takes his victim as he finds him.' 414

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A manhole was opened up in the street by the Post Office and was with paraffin lamps around it at night. A boy knocked a lamp and fell in the hole causing an explosion which injured him. Although the explosion was unforeseeable, a dangerous outcome involving burning was.

Lord Reid: ' All these steps in the chain of causation seem to have been accepted by all the judges in the courts below as foreseeable. But because the explosion was the agent which caused the burning and was unforeseeable, therefore the accident, according to them, was not reasonably foreseeable. In my opinion, this reasoning is fallacious. An explosion is only one way in which burning can be caused.' 856

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Test for Remoteness v Test for Duty of Care

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Test for Remoteness v Test for Duty of Care

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The test for a duty of care is rather general: 'if care is not taken'.

However, the test for remoteness is applied to a specific action: given the knowledge of the circumstances, what consequences are foreseeable? It is viewed retrospectively.

Foreseeability will vary according to the negligent action.

Surely the application of wide foreseeable personal injury will lead to wide foreseeable damage?

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Hughes v Lord Advocate [1963]: allows liability were a foreseeable harm was caused in an unforeseeable way.

Doughty v Turner Manufacturing Co Ltd [1964]: splashing molten liquid did not incur liability - the temperature caused a chemical composition change which was too remote.

Tremain v Pike [1969]: Exposure to urine caused Weil's disease. This was too remote; rat bites were foreseeable but the disease was not.

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The plaintiff (deceased) suffered a burn due to D's negligence. Because of another condition, the plaintiff developed cancer. The Wagon Mound principle did not effect the 'thin skull rule' (you take your victim as you find them). The burn injury was foreseeable even if the harm was much greater.

Smith allows definition of the type of harm to be wide. Therefore the method doesn't affect the liability. Is it too wide?

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(Overseas Tankship (UK) Ltd v Morts Dock & Engineering Co Ltd)

Ship and equipment pair conducted on a wharf. Oil was spilled through the appellant's carelessness. No attempt was made to disperse it. Despite some orders given, the oil caught fire and caused considerable damage.

The court considered Polemis, which stated that if a defendant was guilty, they are responsible for all direct consequence, regardless of foreseeable. Culpability and compensation were split (so that duty and breach were based on foresight but damages were not). This was considered to be bad law.

Instead, Viscount Simmonds says that the 'reasonable man' test requires foreseeability so this should be used. It will limit liability. Duty of Care, Breach of Duty and consequence damage are all necessary. You may only sue for damage, not an act. This is a return to common sense approach as noted in Hay and King.

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A scope of duty approach has been used to limit liability.

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It seems that the law will not consider medical negligence to be a novus actus unless it is grossly negligent. (Webb v Barclays Bank plc [2001].

But this was complicated by Wright v Cambridge Medical Group [2012]: a doctor failed to refer a patient. When they were referred they were treated negligently. Lord Neuberger decided that the hospital would needed to have treated the patient with gross negligence to negate the defendant's contribution.

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D's negligence caused the claimant's leg to be amputated He suffered further injury at a petrol station when he failed to use his prosthesis or walking sticks. However, the defendant was still found to be partially responsible for additional injury. Damages were reduced by a third for contributory negligence.

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McKew v Holland and Hannen and Cubitts (Scotland) Ltd [1969]

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McKew v Holland and Hannen and Cubitts (Scotland) Ltd [1969]

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The claimant had already suffered a leg injury at work. However, he climbed a steep staircase with no hand rail which he fell down, breaking his ankled. Lord Reid found this to be a foreseeable, but unreasonable act which the defendant could not be responsible for.

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Contrast with

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A driver (Mini) broke down on a dark patch of a dual carriageway. It was hit by a lorry who was speeding causing injury, and it also collided with other vehicles. The Mini driver was somewhat negligent for not moving her car to the verge of the road so the damages were split 10/90.

It was unwarranted and unreasonable. It was the violence of the swerve and braking which sent his lorry out of control... It is true that it would not have been there had the Mini not obstructed the nearside lane of the eastbound carriageway but the passages which I have cited show clearly that this is not enough it does not thereby necessarily become a legally operative cause.'

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Driver A negligently drove his lorry causing an accident. Two subsequent lorry drivers stopped (with lights) on to help. However Driver S, a fourth lorry, negligently failed to notice the accident and crashed causing a death.

The Court of Appeal apportioned A and S's liability 25:75.

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Civil Liability (Contribution) Act 1978 has changed how the defendant's own responsibility can contribute to subsequent damage (how?)

If several tortfeasors are responsible for damage each can be ordered to pay a percentage of the damages.

Bankruptcy/Insolvency
Where tortfeasors are jointly/severally liable, the claimant's losses will not be affected (the other tortfeasors will make up the loss.)
However, in proportionate contribution, this could effect the claimaint's recovery of damage and the risk falls on the claimant

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Rescuers usually get special treatment. Unless they act with 'wanton disregard' for their own safety they will have a claim.

Baker v TE Hopkins [1959]: A doctor died whilst attempting to rescue two others trapped in a ditch. The Ds were still responsible for the peril.

The Oropesa [1943]: two ships crashed. One captain ordered crew into a lifeboat but they were later killed by the high sea. This did not break the chain of causation even though there was an error of judgment.

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The claimant's intervening acts may end Ds responsibility.

Calvert v William Hill Credit Ltd [2009]: D failed to include an exclusion agreement from telephone betting at the claimant's request. However, they were still not liable for the claimant's losses as he had an addiction and there was no duty of care assumed. There was also no but-for causation and the defendant's had not caused the gambling addiction.

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The defendant's negligence can contribute to psychiatric harm where suicide is foreseeable.

Corr v IBC Vehicles Ltd [2008]: a widow succeeded in claimant losses for the suicide of her husband. Suicide was reasonably foreseeable from the negligence.

Kirkham v Chief Constable of Greater Manchester Police [1990]: A prisoner who was in police custody committed suicide. There was no novus actus because the police had a duty of care and failed inform the police authorities of the deceased's clinical depression.

Reeves v Commissioner of Police for the Metropolis [2000]: The state of mind or the prisoner did not negate the police's duty of care to prevent suicide.

Dissenting Opinions
Lloyd LJ in Kirkham - the duty was precluded by a voluntary, deliberate, and informed act. Lord Hobhouse took a similar stance in Reeves.

There is no general duty to prevent self-harm of those in custody but they are protected by Article 2 of the ECHR (the right to life).

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The Law Reform (Contributory Negligence) Act 1945 allowed for the apportioning of damages if the defendant and claimant have fault which is factually relevant.

March v E & MH Stratmare Pty Ltd[1991]: 'In the context of apportionment legislation which gives the latitude necessary to enable the relief to be fairly adjusted to fit the circumstances, the courts will be unlikely to deny causation in any case where the fault of the defendant contributed to an accident.'

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INTERVENTION OF WRONGFUL ACT BY THIRD PARTIES

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INTERVENTION OF WRONGFUL ACT BY THIRD PARTIES

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A creates an opportunity but doesn't cause it
B causes damage owing to the opportunity by A. (Weld-Blundell v Stephens [1920]).

B's actions will normally be considered a an intervening act or independent cause unless the defendant was under an exceptional duty of care.

Lamb v Camden London Borough Council [1981]: the claimant sought damages from the council after squatters damaged her property: 'If there is such a duty then the defendant cannot complain that the intervention is a novus actus.'

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'Common sense' talked about in Empress, Knightly

Alphacell Ltd v Woodward [1972]: 'What or who has caused a certain event to occur is essentially a practical question of fact which can best be answered by ordinary common sense rather than by abstract metaphysical theory.'

Empress: One cannot give a common sense answer to a question of causation for the purpose of attributing responsibility under some rule without knowing the purpose and scope of the rule.'

Knightley: 'The answer to this difficult question must be dictated by common sense.'

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D1 was involved in a serious road accident in a one way tunnel. The police officer, D2, forgot to close the tunnel and breached standing orders when he commanded to officers on motorcycles to close the tunnel. One officer was hit by an oncoming car (no negligence) as a result.

There was no link between D1's actions and the injuries: 'the inspector was negligent in failing to close the tunnel, and, respectfully agreeing with the judge, that the plaintiff was not negligent in riding the wrong way after being ordered to do so by the inspector or in deciding on the psurt of the moment to ride his motor cycle close to the wall in lane 1. I am also of the opinion that the inspector's negligence was not a concurrent cause running with Mr John's  negligence, but a new cause disturbing the sequence of events.'

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Duty to take care against burglars or property stolen. Decorator had promised to lock door.

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Empress Car Co (Abertillery) Ltd v National Rivers Authority [1999]

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Empress Car Co (Abertillery) Ltd v National Rivers Authority [1999]

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Lord Hoffmann laid out general application for causation

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A scope of duty approach has been used to limit liability. Factual causation, which may be unforeseeable, can be negated for policy reasons.

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Damage suffered by the claimant after the defendant's negligent conduct.

This creates an opportunity for injury.

When will the defendant be held liable? It is said to be common sense