Cases - tort - negligence

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

C had been employed by more than one employer and,
D had a duty of care to prevent dust inhalation and,
D had been in breach of that duty and,
C had contracted mesothelioma, and
any other cause of mesothelioma could be ruled out but,
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

[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