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Cases - tort - negligence - damage

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Allied Maples Group v Simmons & Simmons (a firm) [1995] CA

Baker v Willoughby [1970] HL

Barnett v Chelsea Hospital Management Committee (1969) QBD

Dodd Properties v Canterbury City Council [1980] CA

Doughty v Turner Manufacturing Co (1964) CA

Fairchild v Glenhaven (2002) HL

Froom v Butcher [1975] CA

Gaca v Pirelli General plc [2004] CA

Hotson v East Berkshire Health Authority [1987] HL

Hughes v Lord Advocate (1963) HL

Humber Oil Terminals Trustee Ltd v Harbour and General Works (Stevin) Ltd (1991) CA

Hunter v Canary Warf Ltd and London Docklands Development Corporation (1997) HL

Jobling v Associated Dairies [1982] HL

Law Reform (Contributory Negligence) Act 1945 s.1 (1)

Liesbosch Dredger v SS Edison [1933] HL

Malone v Laskey [1907] CA

Margereson & Hancock v JW Roberts Ltd (1996) CA

McGhee v National Coal Board [1972] HL

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

McWilliams v Arrol [1962] HL

Ogwo v Taylor [1987] HL

Page v Smith [1996] HL

Perrett v Collins (1998) CA

Pickford v Imperial Chemical Industries plc [1998] HL

Polemis and Furness Withy & Co, Re [1921] CA

R v Croydon Health Authority (1997) CA

Sayers v Harlow UDC [1958] CA

Scott v Shepherd [1774] Ct of CP

Simmons v British Steel plc [2004] HL

Smith v Leech Brain & Co (1962) QBD

Spartan Steel v Martin [1972] CA

Stovold v Barlows [1995] CA

Thompson v James (1998) CA

Wagon Mound 1

Overseas Tankship (U.K.) Ltd v Morts Dock and Engineering Co Ltd  (The Wagon Mound) [1961]

Wagon Mound 2

Overseas Tankship (UK), Ltd v The Miller Steamship, The Wagon Mound (No 2), [1967] [1966] PC

Wilsher v Essex Area Health Authority [1988] HL

Allied Maples Group v Simmons & Simmons (a firm) [1995] CA

 

[Tort - negligence - damage causation and remoteness - multiple causes -  speculative action of a third party - whether matter of causation or quantum of damages]
D solicitors advised C on the purchase of 4 properties. C bought the company that owned them, and in so doing he acquired liabilities attached to other properties owned by the company.  D drew up an agreement to enable C to hive off the other properties and thereby get rid of the liabilities.

Then a third party wanted to sue but could not because the agreement, so they sued C.

 

Held:  C showed that there was a substantial, and not merely a speculative, chance that the third party would have taken the action. 

C won

Baker v Willoughby
[1970] HL

 

[Tort - negligence - damage causation and remoteness - intervening events - successive causes - remedies - contributory negligence - proximate cause of injury, both parties]
D drove a car that struck C a pedestrian who was crossing the road.  Neither saw each other because of other traffic. C received injuries to his leg and ankle.
D had been driving at excessive speed or had failed to keep a proper look-out, or both; and C had been negligent in not seeing that more than one car was approaching and in not waiting until they had passed.

 

Held: The duties of pedestrians and motorists with regard to keeping a proper look-out were different and the potential danger of each to other road users was very different; apportionment of liability, 25 per cent to pedestrian and 75 per cent to driver.

 

In 1967, three years later, and before the above matter was decided the claimant was a victim in an armed robbery during which he was shot in the previously injured leg. C's leg had to be amputated. D was liable to pay the entire damages for the injured ankle and not just till 1967, because the supervening injury did not arise by accident or by a latent condition but by being inflicted on the claimant.

 

Barnett v Chelsea Hospital Management Committee (1969) QBD

 

[Tort - negligence - causation in fact – causation essential - negligence alone not sufficient]
D, hospital where C went because of stomach pains and vomiting. The doctor refused to examine him and sent him home untreated; he died of arsenic poisoning five hours later. His family sued the hospital.

Held: C would probably have died even if the proper treatment had been given promptly, so the hospital's negligence was not the cause of his death.

 

C’s family lost

Dodd Properties v Canterbury City Council [1980] CA

 

 

^[Negligence - remoteness of damage - extent of damage - financial frailty is not physical weakness]
D constructed a car park used a pile-driver causing serious structural damage to C's building. C brought an action against the defendants in negligence and/or nuisance. D admitted liability by disputed quantum.

 

Held
(1) damages were compensatory and should as far as possible put the injured party in the same position as if the wrong had not been committed.
(2) Commercial sense did not mean C had failed to mitigate the damages and delays were caused by D, the cost of the repairs was to be assessed as at the date of the action, i.e. 1978, not 1970's prices.

cf Liesbosch Dredger

 

C won

Doughty v Turner Manufacturing Co (1964) CA

[Tort – negligence - remoteness of damage - type of damage]
D factory owner where C worked.  C was injured by an asbestos cover falling into a cauldron of molten metal.  It was then unknown that the extreme heat would cause the asbestos cement to undergo a chemical change creating or releasing water, which would turn to steam and one or two minutes later cause an eruption of the molten liquid from the cauldron.

 

Held: Following The Wagon Mound and distinguishing Hughes v Lord Advocate [1963].

 

D was not liable because the eruption which injured C was not foreseeable by a reasonable man at the time when the accident happened. The risk of splashing was foreseeable but what happened was an accident of an entirely different kind caused by an unexpected factor, viz the instability of asbestos at high temperature.

 

Fairchild v Glenhaven (2002) HL

 

[Tort – negligence – causation - C able to recover against 'either or both' employers]
D representing a number of former of employers who failed in their duty of care to prevent workers contracting mesothelioma by negligent exposure to asbestos dust. Some workers had already died.  C could not show during which employment he had suffered the offending dust.  Existing rules of causation required C to prove which employer had been negligent.

 

Held: C could succeed against either or both employers, and it was up to them to sort out who would pay what proportion of the award.

Where

  1. C  had been employed by more than one employer and,

  2. D had a duty of care to prevent dust inhalation and,

  3. D had been in breach of that duty and,

  4. C had contracted mesothelioma, and

  5. any other cause of mesothelioma could be ruled out but,

  6. C could not (because of the limits of human science) prove during which employment he had inhaled the dust....

...C was entitled to recover against both his employers.

That conclusion was consistent with principle, and with authority, properly understood.

Wilsher had been correctly decided on its facts, as a matter of public policy.
The law would be extended in the instant case on the facts:

“...If the mechanical application of generally accepted rules leads to [an unjust] result, there must be room to question the appropriateness of such an approach in such a case."

Lord Bingham

"... such injustice as may be involved in imposing liability on a duty-breaking employer in these circumstances is heavily outweighed by the injustice of denying redress to a victim"

Lord Hoffman

"The concepts of fairness, justice and reason underlie the rules which state the causal requirements of liability ...The purpose of the causal requirement rule is to produce a just result ..."

Lord Nicholls

"Any other outcome would be deeply offensive to instinctive notions of what justice requires and fairness demands."

It had not been suggested in argument that the claimant’s entitlement against either employer should be for any sum less than the full compensation to which he was entitled, although either of them could of course seek contribution against the other or against any other employer liable in respect of the same damage in the ordinary way (Civil Liability (Contribution) Act 1978).

The Fairchild decision is a decision on its own particular facts and, whilst there might be other analogous situations where a Fairchild approach to assessing causation is appropriate, that category of case is to be kept within strict limits and the balance of probabilities test remains the guiding principle to determining causation.

 

C won

This decision was refined in barker v Corus [2006] HL which stated that damages should be set in proportion to the amount of time a worker spent with a company.

Froom v Butcher [1975] CA

 

[Tort – negligence – damages – contributory negligence]
C was injured in a road traffic accident but was not wearing a seat belt, which at the time was widely recommended but not legally required.  Decisions were never consistent whether it was contributory negligence and if it were, what level of compensation was payable

Held: C’s damages were reduced by 25%. Failure to wear a seat belt is contributory negligence if use of a belt would have avoided or lessened the injuries sustained in the accident.

For the future a deduction of 25% where wearing a seat belt would have prevented the injuries, or 15% where there would still have been some injuries but they would have been less severe.

Gaca v Pirelli General plc  [2004] CA

^[Tort - damages and compensation - deduction - payments from group insurance deductible from damages]
D employed C who was seriously injured in an accident at work. Whilst C was off work he received payments form a group insurance scheme. Following the termination of his employment he received an ill health gratuity payment from the defendant and a payment under the insurance policy for ‘permanent total disability’. C claimed damages for personal injury.

Held: There was a fundamental difference between a payment made by an employer to his employee to compensate him for the consequences of injuries suffered in an accident, and a payment made to a victim of an accident by a third party out of sympathy for his or her plight. The instant case did not come within the ‘benevolence exception’ because the payments had been made by the tortfeasor, and the payment of benefits under the insurance policy was not equivalent, or analogous, to payments made by third parties out of sympathy.

D won

Hotson v East Berkshire Health Authority [1987] HL

 

[Tort – negligence - damage - causation – medical treatment - loss of chance of recovery]
D the hospital where C, a young boy was taken after he fell out of a tree injuring his hip. The injury was wrongly diagnosed and he was thus given inappropriate treatment. He suffered a permanent disability; the hospital admitted negligence but denied liability.

Held: C had not proved on a balance of probabilities that the negligent treatment had caused his disability - on the contrary, the probabilities were 75-25 that it had not. C therefore had no claim whatever.

 

Lord Bridge; C would be entitled to full damage, not just a proportion for loss of chance of recovery, if C had shown that medical negligence had worsened the condition.

 

C lost

Hughes v Lord Advocate (1963) HL

 

[Tort – negligence – exact type of damage not foreseeable]
D the Post Office employed workmen who took a break, leaving a manhole covered by a small tent with a paraffin lamp at each corner. C, one of two boys aged 8 and 10 took one of these lamps into the tent. One of them tripped, the lamp fell into the manhole and caused an explosion injuring one boy.

Held:  The accident was caused by a known source of danger and that made it foreseeable even though the way in which it happened was unexpected.

 

An accident to a child through burns, was reasonably foreseeable, and the further fact that the development of the accident as it actually happened (viz, the occurrence of the explosion) could not reasonably have been foreseen did not absolve the defendants from liability, and accordingly C was entitled to recover damages for negligence.

C won

Humber Oil Terminals Trustee Ltd v Harbour and General Works (Stevin) Ltd
(1991) CA

 

[Tort – negligence -  foreseeability or type of harm - remoteness of damage - intervening events - no general duty]
C was repairing a damaged mooring when a second serious accident occurred which led to extra expense.

 

Held: The physical conditions of the soil were foreseeable - such as one would commonly find in estuaries, i.e. difficult. The soil was at the base of a leg that broke.

A claim can succeed where the conditions are predictable, but the ground behaves unpredictably when subjected to the contractor’s particular construction methods, temporary or permanent.

The damages concept in personal injury cases "thin skull of the claimant" can apply equally to property damage claims.

 

C won

Hunter v Canary Warf Ltd and London Docklands Development Corporation (1997) HL

[Tort – causation - parties – private nuisance]
CC alleged that their television reception had been affected by the building of the Canary Wharf tower.

Held
: overruling Khorasandjian on the point that the occupation of property as a home (rather than a right to exclusive possession) was sufficient capacity to bring an action in private nuisance. And reaffirming the decision in Malone v Laskey.  The idea that the complainant needed only a "substantial link" with the property affected, was too vague, and would transform nuisance from a tort to land into a tort to the person.

There might be a nuisance if reception was affected by activities (e.g. involving electrical discharges) on DD's premises, but the mere presence of a building was not capable of constituting a nuisance.

The law of private nuisance does not extend to personal injuries, which are properly covered by the tort of negligence.

 

C lost

Jobling v Associated Dairies [1982] HL

[Tort – negligence – breach - sensitivity of complainant – ‘eggshell skull’ rule]
D the employer of a workman who suffered a slipped disc through their negligence.  His earning capacity was reduced by half. Four years later, he was found to have a pre-existing spinal disease unrelated to his accident.  When the case came to trial, he was totally incapable of work.
 
Held: Doubting and not following their earlier decision in Baker v
Willoughby [1970]. The employer was liable for only four years' loss of earnings, this being a rare case in which the "eggshell skull" rule operated to the benefit of the defendant.  The onset of this illness was "one of the vicissitudes of life relevant to the assessment of damages".

 

Law Reform (Contributory Negligence) Act 1945 s.1 (1)

Apportionment of liability in case of contributory negligence

1. (1) Where any person suffers damage as the result partly of his own fault and partly of the fault of any other person or persons, a claim in respect of that damage shall not be defeated by reason of the fault of the person suffering the damage, but the damages recoverable in respect thereof shall be reduced to such extent as the court thinks just and  equitable having regard to the claimant's share in the responsibility for the damage:

Provided that--

(a) this subsection shall not operate to defeat any defence  arising under a contract;

(b) Where any contract or enactment providing for the limitation of liability is applicable to the claim, the amount of damages recoverable by the claimant by virtue of this subsection shall not exceed the maximum limit so applicable.

(2) Where damages are recoverable by any person by virtue of the foregoing subsection subject to such reduction as is therein mentioned, the court shall find and record the total damages which would have been recoverable if the claimant had not been at fault.

(3), (4) . . .

(5) Where, in any case to which subsection (1) of this section applies, one of the persons at fault avoids liability to any other such person or his personal representative by pleading the Limitation Act 1939, or any other enactment limiting the time within which proceedings may be taken, he shall not be entitled to recover any damages . . .  from that other person or representative by virtue of the said subsection.

(6) Where any case to which subsection (1) of this section applies is tried with a jury, the jury shall determine the total damages which would have been recoverable if the claimant had not been at fault and the extent to which those damages are to be reduced.

Liesbosch Dredger v SS Edison [1933] HL

 

^[Negligence - remoteness of damage – damages must be natural or immediate consequence of breach - extent of damage - financial frailty is not physical weakness]
D the owner of the Edison negligently sank a dredger in Greece. The owners of the dredger were too poor to buy a replacement and had to hire a substitute to carry out an existing contract; it would have been cheaper to buy, rather than hire.

 

Held: C’s damages were limited to the cost of the purchase and to damages for loss of hire between the sinking and the date when a replacement would have been put into service.

Lord Wright

The law cannot take account of everything that follows a wrongful act; it regards some subsequent matters as outside the scope of its selection, because "it were infinite for the law to judge the cause of causes," or consequences of consequences.

Malone v Laskey [1907] CA

[Tort – negligence – causation - no cause of action when there was no contractual relationship between C and D]
D let premises to A, who sublet them to a company B whose manager and his wife C lived on the premises.  When C was using the toilet the tank fell on her causing injuries.  The tank fell because vibration from a generator next door had made the tank lose.  D sent competent workmen round to fix the tank, but it still fell on her.

 

Held: C could not recover on the ground of negligence, for there was no contractual relation between C and D, and the doing of the repairs was a voluntary act on the part of defendants not done in the discharge of a duty to C.

 

C lost
This case had been previously doubted but was reaffirmed by the HoL in Hunter.

Margereson & Hancock v JW Roberts Ltd (1996) CA

[Tort - negligence - remoteness of damage - foreseeability of harm - type rather than the extent of damage must be foreseen]
D the owners of a factory near where the two complainants had lived and played as children.  They contracted mesothelioma due to their exposure to asbestos

 

Held: D was liable to C because they knew or ought to have known that asbestos dust was escaping from the factories into the surrounding street and could cause harm to people who were exposed to it.

 

Risk of harm of allowing asbestos dust to escape factory was foreseeable

As stated by Lord Lloyd in Page v Smith (1995), ’the test in every case ought to be whether the defendant can reasonably foresee that his conduct will expose the claimant to the risk

 

C won

Also here

McGhee v National Coal Board [1972] HL

[Tort - negligence - proximate cause]
D failed to provide washing facilities for C whom they sent to clean out brick kilns in hot and dirty conditions, and clouds of abrasive brick dust, C cycled home, further exerting himself caked with sweat and grime. After some days he was found to be suffering from dermatitis.

 

Held: D was liable in negligence because their breach of duty had caused, or materially contributed to, the injury suffered by C, notwithstanding that there were other factors, for which D was not responsible, which had contributed to the injury.

 

(1) D’s breach of duty had, for practical purposes, materially increased the risk of injury to C;

(2) C had shown, on a balance of probabilities, his injury had been caused or contributed to by respondents’ breach of duty.

 

Disapproved dictum Lord Wilberforce Wilsher v Essex Area Health Authority [1988]

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

^[Tort - negligence - causation - novus actus interveniens]
D the employer of C who suffered an injury at work which the defendants were liable, and as a result he occasionally lost control of his left leg, which gave way under him.

A few days later he went to inspect a flat which was approached by a steep stair, between two walls, and without a hand-rail.

On leaving the flat he started to descend the stair, holding his young daughter by the hand and going ahead of his wife and brother-in-law. Suddenly he lost control of his left leg, threw his daughter back in order to save her, and tried to jump so as to land in an upright position rather than falling downstairs. As a result he sustained a severe fracture of his ankle.

Held: His act of jumping in the emergency did not break the chain of causation, but that it had been broken by his conduct in placing himself unnecessarily in a position where he might be confronted by such an emergency, when he could have descended the stair slowly and carefully by himself, or sought the assistance of his wife or brother-in-law.

His conduct therefore amounted to a novus actus interveniens because it was unreasonable. If he had had no reasonable alternative to acting as he did, his conduct would not have broken the chain of causation.

C lost
 

McWilliams v Arrol [1962] HL

[Tort – negligence - causation]
D a building firm had not provided a safety belt to a steel erector who fell 70 feet to his death.  C the widow.  D was in breach of its statutory duty to provide a safety belt (but not to insist that it be worn), there was evidence to show that the man would probably not have worn a belt even had it been provided.

Held: the firm's negligence and breach of statutory duty were not the cause of his death.

Their breach of duty was not the cause of the damage suffered since (a) on the evidence deceased would not have worn a safety belt if it had been provided, and (b) there was no duty on the employers to instruct or exhort the deceased to wear a safety belt.

 

C lost

Ogwo v Taylor [1987] HL

 

[Tort - damage - foreseeability]
D negligently set fire to his house while using a blowlamp. C a fireman was injured while fighting the fire.

Held:
C’s injuries were a foreseeable result of D's negligence, and it was irrelevant that he was employed as a fireman and expected to take risks as part of his job.

C won

Page v Smith [1996] HL

 

Red triangle indicating important information

 

[Tort - negligence - damage causation and remoteness - multiple causes - remoteness of damage - foreseeability - psychiatric harm - primary victim ]
D's car collided with C's car. C was physically unhurt, but the accident caused him to suffer the onset of myalgic encephalomyelitis (ME) from which he had suffered for about 20 years but which was then in remission.

 

Held: D had to take his victim as he found him. 
The test in all cases was the same, namely whether the defendant could reasonably foresee that his conduct would expose the claimant to the risk of personal injury, whether physical or psychiatric.

 

C was not required to prove that nervous shock was reasonably foreseeable by D.  It was irrelevant that D could not have foreseen that the claimant had an ‘eggshell personality’.  Psychiatric illness could be suffered as a consequence of an accident although not demonstrably attributable directly to physical injury to the claimant.

Per Lord Lloyd. In the case of secondary victims, i.e. persons who were not participants in an accident, the defendant will not be liable unless psychiatric injury is foreseeable in a person of normal fortitude and it may be legitimate to use hindsight in order to be able to apply the test of reasonable foreseeability.

C won

Perrett v Collins (1998) CA

[Tort – negligence – duty of care – just to impose – not restricted by cost of insurance or need for stricter regulation]
D built and flew a kit plane. C was a passenger.  The plane crashed C was injured.  The certifying authority and its inspector were both liable in negligence having certified an experimental aircraft as fit to be flown, and the duty extended to any passenger who was carried in the aircraft.

Held: imposing a duty of care, members of the public would expect to be protected from injury by careful operation of the regulatory system, and to be compensated if injured by its negligent operation.

C won.

Pickford v Imperial Chemical Industries plc [1998] HL

 

Whole case, here

 

[Tort - negligence - damage causation and remoteness - multiple causes - foreseeability]
ICI, employed C as a secretary, she suffered repetitive strain injury (RSI) in her hands allegedly caused by typing.

 

Held:  In order to succeed, the onus was on C to prove that her condition had been caused by repetitive movements while typing. C was not entitled to damages, since the condition was not reasonably foreseeable in her case and ICI were not negligent.

 

C lost

Re: Polemis.
Polemis and Furness Withy & Co

[1921] CA

 

[Tort - negligence - damage causation and remoteness - type of damage - test of remoteness]
D chartered a ship had loaded it with petrol. The ship encountered bad weather and the petrol leaked. While docked at Casablanca, D's worker carelessly allowed a plank to fall into the hold of the ship. The falling plank struck something and thereby caused a spark which in its turn ignited petrol vapour in the hold. The vapour caused a fire which destroyed the whole ship.

Held: The fire was not a reasonably foreseeable consequence of allowing the plank to fall. However, it was reasonably foreseeable that the falling plank would cause some form of damage to the vessel. Because of this, the court established D’s negligence. Whether the particular damage caused by the fire was recoverable depended solely on it being a direct consequence of the negligent act. Although the damage by fire could not have reasonably been foreseen as a consequence of dropping the plank, D was therefore liable for the loss of the ship by fire.
The defendants chartered a ship and put in its hold drums of petrol.

Re Polemis was not followed by the Privy Council in The Wagon Mound No.1 The Wagon Mound is now preferred.

R v Croydon Health Authority (1997) CA

[Tort – negligence - foreseeability of damage]
D x-rayed C as part of medical for job as nurse.  D failed to inform C and her GP of serious heart problem.  C had a child and later became depressively ill thinking she had reduced life expectancy.

Held: D not responsible for her becoming pregnant, damages reduced.

 

Sayers v Harlow UDC [1958] CA

 

[Tort - foreseeability of damage - contributory negligence]
D a local authority provided public toilets. When C tried to leave the cubicle, she found the handle was missing. After trying for fifteen minutes to attract attention, she tried to climb out by standing on the toilet roll holder, but the roll rotated and C slipped and fell, injuring herself.

Held: her actions were not unreasonable in the circumstances and the injury was a natural and foreseeable consequence of DD's negligence, and not too remote. However, her damages were reduced by 25% for her negligence in relying on the toilet roll as a secure foothold.

Scott v Shepherd [1774] Ct of CP

[Tort – negligence - remoteness of damage - intervening events]
D (Shepherd) threw a lighted squib into a crowded market house, and it was thrown from one stallholder to another until it put out the claimant's eye.

 

Held: Trespass and assault will lie for originally throwing a squib, which after having been thrown about in self-defence by other persons, at last put out the claimant’s eye.
De Grey, CJ

"I look upon all that was done subsequent to the original throwing as a continuation of the first force and first act, which will continue till the squib was spent by bursting, and I think that any innocent person removing the danger from himself to another is justifiable. . . . I do not consider [them] as free agents in the present case, but acting under a compulsive necessity for their own safety and self-preservation. The defendant there was, I think, guilty of a public nuisance, and the [claimant] could have sued him in case."

Blackstone J thought that [negligence], and not trespass, would lie against Shepherd.

Simmons v British Steel plc [2004] HL

 

Whole case here

^[Tort – remoteness of damage – primary victim – foreseeable harm includes psychiatric reaction following initial injury]
D, the steel company that employed C. C fell and hit his head at work. He suffered depression and a pre-existing skin disease flared up, not because of the original injury “but from his anger at the happening of the accident” (lack of apology or support following the accident, and failing to prevent the accident when warned of the danger).

Held: C was entitled to compensation for the consequences of the accident and not just for the physical injuries. C’s anger was neither de minims nor an intervening act.
 

C was “a primary victim” according to the classification in Page v Smith [1996] HL.

A wrongdoer takes his victim as he finds him Smith v Leech Brain & Co Ltd [1962] CA.
There must now be added these further qualifications:
 

(1) that a defender is liable although the damage may be a good deal greater in extent than was foreseeable, as he can escape liability only if the damage can be regarded as differing in kind from what was foreseeable: Hughes v Lord Advocate (1963) HL; and
 

(2) where it is established that physical injury to the pursuer was foreseeable, it is unnecessary to ask whether it was foreseeable that he would also suffer psychiatric injury: Page v Smith [1996] HL.

The general rule is that it must be shown that the injury would not have occurred but for the act or omission of the defender.
But if a number of factors contributed to the injury it is sufficient that the contribution which the factor attributable to the defender's fault made to the injury was material: Wardlaw v Bonnington Castings Ltd [1956] HL.

 

C won

Smith v Leech Brain & Co (1962) QBD

 

[Tort – negligence - foreseeability of damage - application of the 'thin skull rule' is an exception]
D the employers of a workman who was slightly splashed by molten metal through his employers' negligence and suffered a burn on his face. The burn aggravated a pre-existing cancerous condition and the man died. C his widow sued.

Held: "injury to the person" was regarded as a single kind of damage and some minor injury at least was foreseeable.

 

A tortfeasor took his victim as he found him, and the decision in The Wagon Mound did not override this principle; accordingly, since the type of injury which the workman suffered was reasonably foreseeable, defendants were liable for damages claimed, although they could not reasonably have foreseen the ultimate consequences of the initial injury, viz, that the burn would cause cancer from which S would die.

C won

Spartan Steel v Martin [1972] CA

 

^[Tort – negligence  - damage – public policy]
DD While digging a trench negligently cut off the electricity supply to PC’s steelworks.

Held: the value of the "melt" that was ruined by the power cut, including the profit directly associated with it was allowed.

However, C did not succeed for loss of profits on four further melts that could have been completed during the period that the supply was cut off.

The reason was probably the fear of opening the floodgates to many similar claims if a contractor severed the power supply to a whole estate or even a small town.

There is no principle of ‘‘parasitic’’ damages in English law to the effect that there were some heads of damage which, if they stood alone, would not be recoverable, but would be if they could be annexed to some other claim for damages, i.e., that the economic loss in respect of the four ‘‘melts’’ was recoverable as a ‘‘parasite’’ by being attached to the claim in respect of the first ‘‘melt.’’

Lord Denning MR:

At bottom I think the question of recovering economic loss is one of policy.  Whenever the courts draw a line to mark out the bounds of duty, they do it as a matter of policy so as to limit the responsibility of the defendant.  Whenever the courts set bounds to the damages recoverable--saying that they are, or are not, too remote--they do it as matter of policy so as to limit the liability of the defendant.

Lawton LJ:

The differences which undoubtedly exist between what damage can be recovered in one type of case and what in another cannot be reconciled on any logical basis.  I agree with Lord Denning MR that such differences have arisen because of the policy of the law.  Maybe there should be one policy for all cases; the enunciation of such a policy is not, in my judgement, a task for this court.

C won.

Stovold v Barlows [1995] CA

[Tort - damage causation and remoteness - multiple causes - damages - causation of loss - action taken by third party ]
D solicitors negligently failed deal with the sale of C's house, and the sale fell through.  D had failed to deliver documents on time.

 

Held:  The purchaser might have preferred the house he actually bought even if the documents had been sent promptly and, so, the 'loss of chance' would be assessed at 50 per cent.

On the question of causation where the loss depended upon the action of a third party, the correct approach is to evaluate the loss of the chance of the sale going ahead as a result of the defendants’ negligence.

 

Thompson v James (1998) CA

[Tort – negligence – causation - intervening events]
D a doctor advised C, the parents of a child not to have a measles vaccination. Child caught measles and suffered brain damage.  Child’s history suggested to D that immunisation would be more harmful than to most children.

Held: There was no doubt as to the existence of a duty of care, it was not fair, just or reasonable to hold the defendant liable for the general advice he had given to C’s parents.

 

The advice given by other doctors to whom C had consulted was an intervening event.  It broke the chain of causation because the parents were not acting on D’s advice. 

 

It was not foreseeable that the defendant’s failure to mention the alternative method of immunisation would have had a significant influence on the decision, given that both the parents and the defendant knew other doctors would be involved.

C lost.

Wagon Mound1

Overseas Tankship (U.K.) Ltd v Morts Dock and Engineering Co Ltd  (The Wagon Mound) [1961]

 

[Tort - negligence - remoteness of damage - type of damage foreseen]
D carelessly discharged oil from their ship, the Wagon Mound, into Sydney Harbour. The wind and tide carried the oil beneath C's wharf where welding operations were being carried on by C's employees. After being advised that they could safely weld, C's employees continued their work. Some 55 to 60 hours after the original discharge, molten metal set some waste floating in the oil on fire. The flames quickly developed into a large fire which severely damaged the wharf. The oil also inhibited the use of C's slipways.

 

Held: Damage to the wharf by the pollution of C's slipways was foreseeable.  Damage by fire was not reasonably foreseeable. C was loath to admit the foreseeability of the fire risk because it was their workmen who actually set the oil alight.

 

D not liable for the fire but liable for the fouling

Comment:
Liability turned on the question of whether the risk of fire was foreseeable, since furnace oil has such a high boiling point it is unlikely to catch fire under normal circumstances. In Wagon Mound 1 and 2, the two sequential claimants argued the risks of fire in opposite ways. Each of these diametrically different presentations of the risk of fire was accepted by the very same court as equally true and valid facts.

Wagon Mound 2

The Wagon Mound (No 2), Overseas Tankship (UK), Ltd v The Miller Steamship [1967] [1966] PC 

 

[Tort - negligence - remoteness of damage - type of damage foreseen]
D carelessly discharged oil from their ship, the Wagon Mound, into Sydney Harbour. The wind and tide carried the oil beneath a wharf where welding operations were being carried on. After being advised that they could safely weld, they continued their work. Some 55 to 60 hours after the original discharge, molten metal set some waste floating in the oil on fire. The flames quickly developed into a large fire which severely damaged the ships owned by C. 

Held
: The damage was reasonably foreseeable (though admittedly very small) and therefore not too remote.  If some damage, even minor damage, of a particular kind was foreseeable, then D would be liable for all such damage irrespective of the foreseeability of its extent and its immediate cause.  The potential consequences of that unlikely occurrence were so serious as to give rise to a duty of care to avoid it.

C won

Comment: C owner of the burned ship played no part in creating the fire and thus proved that there is a positive, predicable risk that furnace oil might catch fire when spilled in a harbour. C recovered damages based exclusively on the finding that the risk of fire (for the same incident as The Wagon Mound 1) was greater than zero and D should be held responsible for foreseeable risks.

Lord Reid:
”It follows that in their lordships' view the only question is whether a reasonable man having the knowledge and experience to be expected of the chief engineer of the Wagon Mound would have known that there was a real risk of the oil on the water catching fire in some way: if it did, serious damage to ships or other property was not only foreseeable but very likely.”

In Wagon Mound 1 both C and D were eager to say that there was no foreseeability of furnace oil catching fire in a harbour. D because he would not be liable if there was no foreseeable risk and C because otherwise their cause of action could be barred for contributory negligence (it was a spark from their welding operations that set the fire going). The court ultimately found that the risk of fire was zero and denied recovery to C for fire damage because it was unfair to hold D responsible for such unforeseeable harm.

Lord Reid:

“So if the [claimants] in the former case had set out to prove that it was foreseeable by the engineers of the Wagon Mound that this oil could be set alight, they might have had difficulty in parrying the reply that then this must also have been foreseeable by their manager.  Then there would have been contributory negligence and at that time contributory negligence was a complete defence in New South Wales.”

Wilsher v Essex Area Health Authority
[1988] HL

 

[Tort – negligence – causation - proximate cause – the balance of probabilities]
D the hospital where C was born prematurely. D negligently gave C excess oxygen. The catheter was twice inserted into his vein instead of his artery. He developed an incurable eye condition.

 

Held: His blindness could have been caused by any of half a dozen factors found in premature babies, of which the hospital's admitted negligence was just one.

The combination of negligence and injury did not in itself create a presumption of causation.

It was not for D to show an alternative cause but for C to show (on a balance of probabilities) that the negligence had caused the damage, or had at least materially contributed to it, and this he could not do.

 

C lost, a retrial ordered.

Disapproved Fairirchild v Glenhaven Funeral Services Ltd; Fox v Spousal (Midlands) Ltd; Matthews v Associated Portland Cement Manufacturers (1978) Ltd [2002]

 

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