Cases
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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. eld: 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 [19!"] #
[Tort - negligence - damage causation and remoteness - intervening events - successive causes - remedies - contri$utory negligence pro%imate cause of in&ury' $oth parties] D drove a car that struck C a pedestrian who was crossing the road. either saw each other because of other traffic. C received in!uries to his leg and ankle. D had been driving at e"cessive speed or had failed to keep a proper look#out, or both$ and C had been negligent in not seeing that more than one car was approaching and in not waiting until they had passed. eld: 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, %& per cent to pedestrian and '& per cent to driver. (n )*+', 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 in!ured leg. C,s leg had to be amputated. D was liable to pay the entire damages for the in!ured ankle and not !ust till )*+', because the supervening in!ury did not arise by accident or by a latent condition but by being inflicted on the claimant.
(arnett v Chelsea ospital)anagemen t Committee *19+9, -(.
[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 e"amine him and sent
him home untreated$ he died of arsenic poisoning five hours later. -is family sued the hospital. eld0 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. C1s family lost .odd 2roperties v Canter$ury CityCouncil [193"] CA 4[5egligence - remoteness of damage - e%tent of damage - financial frailty is not physical wea6ness] D constructed a car park used a pile#driver causing serious structural damage to C,s building. C brought an action against the defendants in negligence and.or nuisance. D admitted liability by disputed quantum. eld /)0 damages were compensatory and should as far as possible put the in!ured party in the same position as if the wrong had not been committed. /%0 Commercial sense did not mean C had failed to mitigate the damages and delays were caused by D, the cost of the repairs was to be assessed as at the date of the action, i.e. )*'1, not )*'2,s prices. cf Liesbosch Dredger C won Doughty v urner Manufa!turing "o *19+7, CA [Tort / negligence - remoteness of damage - type of damage] D factory owner where C worked. C was in!ured by an asbestos cover falling into a cauldron of molten metal. (t was then unknown that the e"treme heat would cause the asbestos cement to undergo a chemical change creating or releasing water, which would turn to steam and one or two minutes later cause an eruption of the molten liquid from the cauldron. eld: 3ollowing The 4agon 5ound and distinguishing -ughes v 6ord 7dvocate 8)*+9:. D was not liable because the eruption which in!ured C was not foreseeable by a reasonable man at the time when the accident happened. The risk of splashing was foreseeable but what happened was an accident of an entirely different kind caused by an une"pected factor, vi; the instability of asbestos at high temperature. #air!hild v Glenhaven *8""8, [Tort / negligence / causation - C a$le to recover
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against 9either or $oth9 employers] D representing a number of former of employers who failed in their duty of care to prevent workers contractingmesothelioma by negligent e"posure to asbestos dust. <ome workers had already died. C could not show during which employment he had suffered the offending dust. ="isting rules of causation required C to prove which employer had been negligent. eld: C could succeed against either or both employers, and it was up to them to sort out who would pay what proportion of the award. 4here ). C had been employed by more than one employer and, %. D had a duty of care to prevent dust inhalation and, 9. D had been in breach of that duty and, 4. C had contracted mesothelioma, and &. any other cause of mesothelioma could be ruled out but, +. C could not /because of the limits of human science0 prove during which employment he had inhaled the dust.... ...C was entitled to recover against both his employers. That conclusion was consistent with principle, and with authority, properly understood. :ilsher had been correctly decided on its facts, as a matter of public policy. The law would be e"tended in the instant case on the facts: “...If the mechanical application of generally accepted rules leads to [an unjust] result, there must be room to question the appropriateness of such an approach in such a case." 6ord >ingham "... such injustice as may be in ol ed in imposing liability on a duty!brea"ing employer in these circumstances is hea ily out#eighed by the injustice of denying redress to a ictim" 6ord -offman "$he concepts of fairness, justice and reason underlie the rules #hich state the causal requirements of liability ...$he purpose of the causal requirement rule is to produce a just result ..." 6ord icholls "%ny other outcome #ould be deeply offensi e to instincti e notions of #hat justice requires and fairness demands."
(t had not been suggested in argument that the claimant?s entitlement against either employer should be for any sum less than the full compensation to which he was entitled, although either of them could of course seek contribution against the other or against any other employer liable in respect of the same damage in the ordinary way /Civil 6iability /Contribution0 7ct )*'10. The #air!hild decision is a decision on its own particular facts and, whilst there might be other analogous situations where a #air!hild approach to assessing causation is appropriate, that category of case is to be kept within strict limits and the balance of probabilities test remains the guiding principle to determining causation. C won This decision was refined in barker v Corus 8%22+: -6 which stated that damages should be set in proportion to the amount of time a worker spent with a company. ;room v (utcher [19!5] CA [Tort / negligence / damages / contri$utory negligence] C was in!ured 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 eld: C?s damages were reduced by %&@. 3ailure to wear a seat belt is contributory negligence if use of a belt would have avoided or lessened the in!uries sustained in the accident. 3or the future a deduction of %&@ where wearing a seat belt would have prevented the in!uries, or )&@ where there would still have been some in!uries but they would have been less severe. <aca v 2irelli <eneral plc [8""7] CA 4[Tort - damages and compensation - deduction payments from group insurance deducti$le from damages] D employed C who was seriously in!ured in an accident at work. 4hilst C was off work he received payments form a group insurance scheme. 3ollowing the termination of his employment he received an ill health gratuity payment from the defendant and a payment under the insurance policy for Apermanent total disability?. C claimed damages for personal in!ury. eld: There was a fundamental difference between a payment made by an employer to his employee to compensate him for the consequences of in!uries
suffered in an accident, and a payment made to a victim of an accident by a third party out of sympathy for his or her plight. The instant case did not come within the Abenevolence e"ception? because the payments had been made by the tortfeasor, and the payment of benefits under the insurance policy was not equivalent, or analogous, to payments made by third parties out of sympathy. . won otson v =ast (er6shire Authority [193!] # ealth [Tort / negligence - damage - causation / medical treatment - loss of chance of recovery] D the hospital where C, a young boy was taken after he fell out of a tree in!uring his hip. The in!ury was wrongly diagnosed and he was thus given inappropriate treatment. -e suffered a permanent disability$ the hospital admitted negligence but denied liability. eld: C had not proved on a balance of probabilities that the negligent treatment had caused his disability # on the contrary, the probabilities were '&#%& that it had not. C therefore had no claim whatever. 6ord >ridge$ C would be entitled to full damage, not !ust a proportion for loss of chance of recovery, if C had shown that medical negligence had worsened the condition. C lost ughes v #ord Advocate *19+>, # [Tort / negligence / e%act type of damage not foreseea$le] D the Bost Cffice 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 1 and )2 took one of these lamps into the tent. Cne of them tripped, the lamp fell into the manhole and caused an e"plosion in!uring one boy. eld0 The accident was caused by a known source of danger and that made it foreseeable even though the way in which it happened was une"pected. 7n accident to a child through burns, was reasonably foreseeable, and the further fact that the development of the accident as it actually happened /vi;, the occurrence of the e"plosion0 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 $umber %il erminals rustee &td v $arbour and General Works (Stevin) &td *1991, CA [Tort / negligence - foreseea$ility 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 e"tra e"pense. eld: 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. 7 claim can succeed where the conditions are predictable, but the ground behaves unpredictably when sub!ected to the contractor?s particular construction methods, temporary or permanent. The damages concept in personal in!ury cases Dthin skull of the claimantD can apply equally to property damage claims. C won unter v Canary :arf #td and #ondon .oc6lands .evelopment Corporation *199!, # [Tort / causation - parties / private nuisance] CC alleged that their television reception had been affected by the building of the Canary 4harf tower. eld: overruling ?horasand&ian on the point that the occupation of property as a home /rather than a right to e"clusive possession0 was sufficient capacity to bring an action in private nuisance. 7nd reaffirming the decision in)alone v #as6ey. The idea that the complainant needed only a Dsubstantial linkD 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 discharges0 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 e"tend to personal in!uries, which are properly covered by the tort of negligence. C lost @o$ling v Associated .airies [1938] # [Tort / negligence / $reach - sensitivity of complainant / Aeggshell s6ull1 rule] D the employer of a workman who suffered a slipped disc through their negligence. -is earning capacity was reduced by half. 3our years later, he was found to have a pre#e"isting spinal disease unrelated to his accident.
4hen the case came to trial, he was totally incapable of work. eld: Doubting and not following their earlier decision in >aker v 4illoughby 8)*'2:. The employer was liable for only four years, loss of earnings, this being a rare case in which the Deggshell skullD rule operated to the benefit of the defendant. The onset of this illness was Done of the vicissitudes of life relevant to the assessment of damagesD. #aw Beform *Contri$utory 5egligence, Act 1975 sC1 *1, 7pportionment of liability in case of contributory negligence ). /)0 4here 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 e"tent as the court thinks !ust and equitable having regard to the claimant,s share in the responsibility for the damage: Brovided that## /a0 this subsection shall not operate to defeat any defence arising under a contract$ /b0 4here 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 e"ceed the ma"imum limit so applicable. /%0 4here damages are recoverable by any person by virtue of the foregoing subsection sub!ect 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. /90, /40 . . . /&0 4here, in any case to which subsection /)0 of this section applies, one of the persons at fault avoids liability to any other such person or his personal representative by pleading the 6imitation 7ct )*9*, 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. /+0 4here any case to which subsection /)0 of this section applies is tried with a !ury, the !ury shall determine the total damages which would have been recoverable if the claimant had not been at fault and the e"tent to which those damages are to be reduced. 4[5egligence - remoteness of damage / damages
#ies$osch .redger v DD =dison
[19>>]
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must $e natural or immediate consequence of $reach - e%tent of damage - financial frailty is not physical wea6ness] D the owner of the =dison negligently sank a dredger in Ereece. The owners of the dredger were too poor to buy a replacement and had to hire a substitute to carry out an e"isting contract$ it would have been cheaper to buy, rather than hire. eld: 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. 6ord 4right $he la# cannot ta"e account of e erything that follo#s a #rongful act& it regards some subsequent matters as outside the scope of its selection, because "it #ere infinite for the la# to judge the cause of causes," or consequences of consequences.
)alone v #as6ey [19"!] CA
[Tort / negligence / causation - no cause of action when there was no contractual relationship $etween C and .] D let premises to 7, who sublet them to a company > whose manager and his wife C lived on the premises. 4hen C was using the toilet the tank fell on her causing in!uries. The tank fell because vibration from a generator ne"t door had made the tank lose. D sent competent workmen round to fi" the tank, but it still fell on her. eld: 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 $een previously dou$ted $ut was reaffirmed $y the o# in unterC
Margereson & $an!o!k v 'W (oberts &td *199+, CA
[Tort - negligence - remoteness of damage foreseea$ility of harm - type rather than the e%tent of damage must $e foreseen] D the owners of a factory near where the two complainants had lived and played as children. They contracted mesothelioma due to their e"posure to asbestos eld: D was liable to C because they knew or ought to have known that asbestos dust was escaping from the factories into the surrounding street and could cause
harm to people who were e"posed to it. Fisk of harm of allowing asbestos dust to escape factory was foreseeable 7s stated by 6ord 6loyd in 2age v Dmith *1995,, ?the test in every case ought to be whether the defendant can reasonably foresee that his conduct will e"pose the claimant to the risk C won 7lso here M!Ghee v )ational "oal Board[19!8] # [Tort - negligence - pro%imate cause] D failed to provide washing facilities for C whom they sent to clean out brick kilns in hot and dirty conditions, and clouds of abrasive brick dust, C cycled home, further e"erting himself caked with sweat and grime. 7fter some days he was found to be suffering from dermatitis. eld: D was liable in negligence because their breach of duty had caused, or materially contributed to, the in!ury suffered by C, notwithstanding that there were other factors, for which D was not responsible, which had contributed to the in!ury. /)0 D?s breach of duty had, for practical purposes, materially increased the risk of in!ury to C$ /%0 C had shown, on a balance of probabilities, his in!ury had been caused or contributed to by respondents? breach of duty. .isapproved dictum Lord 'ilberforce 4ilsher v =sse" 7rea -ealth 7uthority 8)*11: )c?ew v olland and annen and Cu$itts *Dcotland, #td [19+9] # 4[Tort - negligence - causation - novus actus interveniens] D the employer of C who suffered an in!ury at work which the defendants were liable, and as a result he occasionally lost control of his left leg, which gave way under him. 7 few days later he went to inspect a flat which was approached by a steep stair, between two walls, and without a hand#rail. Cn 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. <uddenly he lost control of his left leg, threw his daughter back in order to save her, and tried to !ump so as to land in an upright position rather than falling downstairs. 7s a result he sustained a severe fracture of his ankle.
eld: -is act of !umping 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. -is conduct therefore amounted to a novus actus interveniens because it was unreasonable. (f he had had no reasonable alternative to acting as he did, his conduct would not have broken the chain of causation. C lost )c:illiams v Arrol [19+8] # [Tort / negligence - causation] D a building firm had not provided a safety belt to a steel erector who fell '2 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 worn0, there was evidence to show that the man would probably not have worn a belt even had it been provided. eld: 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 /a0 on the evidence deceased would not have worn a safety belt if it had been provided, and /b0 there was no duty on the employers to instruct or e"hort the deceased to wear a safety belt. C lost Egwo v Taylor [193!] # [Tort - damage - foreseea$ility] D negligently set fire to his house while using a blowlamp. C a fireman was in!ured while fighting the fire. eld0 C?s in!uries were a foreseeable result of D,s negligence, and it was irrelevant that he was employed as a fireman and e"pected to take risks as part of his !ob. C won *age v Smith [199+] # [Tort - negligence - damage causation and remoteness - multiple causes - remoteness of damage - foreseea$ility - 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 /5=0 from which he had suffered for about %2 years but which was then in remission. eld: 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 e"pose the claimant to the risk of personal in!ury, whether physical or psychiatric. C was not required to prove that nervous shock was reasonably foreseeable by D. (t was irrelevant that D could not have foreseen that the claimant had an Aeggshell personality?. Bsychiatric illness could be suffered as a consequence of an accident although not demonstrably attributable directly to physical in!ury to the claimant. Ber 6ord 6loyd. (n the case of secondary victims, i.e. persons who were not participants in an accident, the defendant will not be liable unless psychiatric in!ury 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 2errett v Collins *1993, CA [Tort / negligence / duty of care / &ust to impose / not restricted $y cost of insurance or need for stricter regulation] D built and flew a kit plane. C was a passenger. The plane crashed C was in!ured. The certifying authority and its inspector were both liable in negligence having certified an e"perimental aircraft as fit to be flown, and the duty e"tended to any passenger who was carried in the aircraft. eld: imposing a duty of care, members of the public would e"pect to be protected from in!ury by careful operation of the regulatory system, and to be compensated if in!ured by its negligent operation. C wonC *i!kford v +mperial "hemi!al +ndustries pl! [1993] # 4hole case, here [Tort - negligence - damage causation and remoteness - multiple causes - foreseea$ility] (C(, employed C as a secretary, she suffered repetitive strain in!ury /F<(0 in her hands allegedly caused by typing. eld0 (n 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 (C( were not negligent. C lost Be, *olemis*olemis and #urness Withy & "o [1981] 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. 4hile 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. eld: The fire was not a reasonably foreseeable consequence of allowing the plank to fall. -owever, it was reasonably foreseeable that the falling plank would cause some form of damage to the vessel. >ecause of this, the court established D?s negligence. 4hether the particular damage caused by the fire was recoverable depended solely on it being a direct consequence of the negligent act. 7lthough 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. Be 2olemis was not followed by the Brivy Council in The :agon )ound 5oC1. The :agon )ound is now preferred. B v Croydon *199!, CA ealth Authority [Tort / negligence - foreseea$ility of damage] D "#rayed C as part of medical for !ob as nurse. D failed to inform C and her EB of serious heart problem. C had a child and later became depressively ill thinking she had reduced life e"pectancy. eld: D not responsible for her becoming pregnant, damages reduced. Dayers v CA arlow F.C [1953] [Tort - foreseea$ility of damage - contri$utory negligence] D a local authority provided public toilets. 4hen C tried to leave the cubicle, she found the handle was missing. 7fter 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, in!uring herself.
eld: her actions were not unreasonable in the circumstances and the in!ury was a natural and foreseeable consequence of DD,s negligence, and not too remote. -owever, her damages were reduced by %&@ for her negligence in relying on the toilet roll as a secure foothold. S!ott v Shepherd [1!!7] Ct of C2 [Tort / negligence - remoteness of damage intervening events] D /<hepherd0 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. eld: 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 Erey, CG "I loo" upon all that #as done subsequent to the original thro#ing as a continuation of the first force and first act, #hich #ill continue till the squib #as spent by bursting, and I thin" that any innocent person remo ing the danger from himself to another is justifiable. . . . I do not consider [them] as free agents in the present case, but acting under a compulsi e necessity for their o#n safety and self!preser ation. $he defendant there #as, I thin", guilty of a public nuisance, and the [claimant] could ha e sued him in case." >lackstone G thought that 8negligence:, and not trespass, would lie against <hepherd. Dimmons v (ritish Dteel plc [8""7] # 4hole case here H[Tort / remoteness of damage / primary victim / foreseea$le harm includes psychiatric reaction following initial in&ury] D, the steel company that employed C. C fell and hit his head at work. -e suffered depression and a pre# e"isting skin disease flared up, not because of the original in!ury Ibut from his anger at the happening of the accidentJ /lack of apology or support following the accident, and failing to prevent the accident when warned of the danger0. eld: C was entitled to compensation for the consequences of the accident and not !ust for the physical in!uries. C?s anger was neither de minims nor an intervening act. C was Ia primary victimJ according to the classification in Bage v <mith 8)**+: -6.
7 wrongdoer takes his victim as he finds him <mith v 6eech >rain K Co 6td 8)*+%: C7. There must now be added these further qualifications: /)0 that a defender is liable although the damage may be a good deal greater in e"tent than was foreseeable, as he can escape liability only if the damage can be regarded as differing in kind from what was foreseeable: -ughes v 6ord 7dvocate /)*+90 -6$ and /%0 where it is established that physical in!ury to the pursuer was foreseeable, it is unnecessary to ask whether it was foreseeable that he would also suffer psychiatric in!ury: Bage v <mith 8)**+: -6. The general rule is that it must be shown that the in!ury would not have occurred but for the act or omission of the defender. >ut if a number of factors contributed to the in!ury it is sufficient that the contribution which the factor attributable to the defender,s fault made to the in!ury was material: :ardlaw v (onnington Castings #td [195+] #C C won Smith v &ee!h Brain & "o *19+8, -(. [Tort / negligence - foreseea$ility of damage application of the 9thin s6ull rule9 is an e%ception] D the employers of a workman who was slightly splashed by molten metal through his employers, negligence and suffered a burn on his face. The burn aggravated a pre#e"isting cancerous condition and the man died. C his widow sued. eld: Din!ury to the personD was regarded as a single kind of damage and some minor in!ury at least was foreseeable. 7 tortfeasor took his victim as he found him, and the decision in The :agon )ound did not override this principle$ accordingly, since the type of in!ury 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 in!ury, vi;, that the burn would cause cancer from which < would die. C won Dpartan Dteel v )artin [19!8] CA 4[Tort / negligence - damage / pu$lic policy] DD 4hile digging a trench negligently cut off the
electricity supply to BC?s steelworks. eld: the value of the DmeltD that was ruined by the power cut, including the profit directly associated with it was allowed. -owever, 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 AAparasitic?? damages in =nglish 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 anne"ed to some other claim for damages, i.e., that the economic loss in respect of the four AAmelts?? was recoverable as a AAparasite?? by being attached to the claim in respect of the first AAmelt.?? 6ord Denning 5F: %t bottom I thin" the question of reco ering economic loss is one of policy. 'hene er the courts dra# a line to mar" out the bounds of duty, they do it as a matter of policy so as to limit the responsibility of the defendant. 'hene er the courts set bounds to the damages reco erable!!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. 6awton 6G: $he differences #hich undoubtedly e(ist bet#een #hat damage can be reco ered in one type of case and #hat in another cannot be reconciled on any logical basis. I agree #ith Lord Denning )* that such differences ha e arisen because of the policy of the la#. )aybe there should be one policy for all cases& the enunciation of such a policy is not, in my judgement, a tas" for this court. C wonC Stovold v Barlo.s [1995] CA [Tort - damage causation and remoteness multiple causes - damages - causation of loss action ta6en $y 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.
eld: 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 &2 per cent. Cn 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. hompson v 'ames *1993, 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. eld: There was no doubt as to the e"istence of a duty of care, it was not fair, !ust 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. (t broke the chain of causation because the parents were not acting on D?s advice. (t 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 lostC :agon )ound1 Everseas Tan6ship *FC?C, #td v )orts .oc6 and =ngineering Co #td *The :agon )ound, [19+1] [Tort - negligence - remoteness of damage - type of damage foreseen] D carelessly discharged oil from their ship, the 'agon )ound, into <ydney -arbour. The wind and tide carried the oil beneath C,s wharf where welding operations were being carried on by C,s employees. 7fter being advised that they could safely weld, C,s employees continued their work. <ome && to +2 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. eld: 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. . not lia$le for the fire $ut lia$le for the fouling Comment0 6iability 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. (n 4agon 5ound ) and %, the two sequential claimants argued the risks of fire in opposite ways. =ach of these diametrically different presentations of the risk of fire was accepted by the very same court as equally true and valid facts. :agon )ound 8 The :agon )ound *5o 8,' Everseas Tan6ship *F?,' #td v The )iller Dteamship [19+!] [19++] 2C [Tort - negligence - remoteness of damage - type of damage foreseen] D carelessly discharged oil from their ship, the 'agon )ound, into <ydney -arbour. The wind and tide carried the oil beneath a wharf where welding operations were being carried on. 7fter being advised that they could safely weld, they continued their work. <ome && to +2 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. eld: The damage was reasonably foreseeable /though admittedly very small0 and therefore not too remote. (f 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 e"tent 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 e"clusively on the finding that the risk of fire /for the same incident as The 4agon 5ound )0 was greater than ;ero and D should be held responsible for foreseeable risks. 6ord Feid: +It follo#s that in their lordships, ie# the only question is #hether a reasonable man ha ing the "no#ledge and e(perience to be e(pected of the chief engineer of the 'agon )ound #ould ha e "no#n that there #as a real ris" of the oil on the #ater catching fire in some #ay- if it did, serious damage to ships or
other property #as not only foreseeable but ery li"ely.+ (n 4agon 5ound ) 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 going0. The court ultimately found that the risk of fire was ;ero and denied recovery to C for fire damage because it was unfair to hold D responsible for such unforeseeable harm. 6ord Feid: “.o if the [claimants] in the former case had set out to pro e that it #as foreseeable by the engineers of the 'agon )ound that this oil could be set alight, they might ha e had difficulty in parrying the reply that then this must also ha e been foreseeable by their manager. $hen there #ould ha e been contributory negligence and at that time contributory negligence #as a complete defence in /e# .outh 'ales.+ Wilsher v /sse0 Area $ealthAuthority [1933] # [Tort / negligence / causation - pro%imate cause / the $alance of pro$a$ilities] D the hospital where C was born prematurely. D negligently gave C e"cess o"ygen. The catheter was twice inserted into his vein instead of his artery. -e developed an incurable eye condition. eld: -is blindness could have been caused by any of half a do;en factors found in premature babies, of which the hospital,s admitted negligence was !ust one. The combination of negligence and in!ury did not in itself create a presumption of causation. (t was not for D to show an alternative cause but for C to show /on a balance of probabilities0 that the negligence had caused the damage, or had at least materially contributed to it, and this he could not do. C lost' a retrial orderedC .isapproved 3airirchild v Elenhaven 3uneral <ervices 6td$ 3o" v <pousal /5idlands0 6td$ 5atthews v 7ssociated Bortland Cement 5anufacturers /)*'10 6td 8%22%:
[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. eld: 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 [19!"] #
[Tort - negligence - damage causation and remoteness - intervening events - successive causes - remedies - contri$utory negligence pro%imate cause of in&ury' $oth parties] D drove a car that struck C a pedestrian who was crossing the road. either saw each other because of other traffic. C received in!uries to his leg and ankle. D had been driving at e"cessive speed or had failed to keep a proper look#out, or both$ and C had been negligent in not seeing that more than one car was approaching and in not waiting until they had passed. eld: 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, %& per cent to pedestrian and '& per cent to driver. (n )*+', 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 in!ured leg. C,s leg had to be amputated. D was liable to pay the entire damages for the in!ured ankle and not !ust till )*+', because the supervening in!ury did not arise by accident or by a latent condition but by being inflicted on the claimant.
(arnett v Chelsea ospital)anagemen t Committee *19+9, -(.
[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 e"amine him and sent
him home untreated$ he died of arsenic poisoning five hours later. -is family sued the hospital. eld0 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. C1s family lost .odd 2roperties v Canter$ury CityCouncil [193"] CA 4[5egligence - remoteness of damage - e%tent of damage - financial frailty is not physical wea6ness] D constructed a car park used a pile#driver causing serious structural damage to C,s building. C brought an action against the defendants in negligence and.or nuisance. D admitted liability by disputed quantum. eld /)0 damages were compensatory and should as far as possible put the in!ured party in the same position as if the wrong had not been committed. /%0 Commercial sense did not mean C had failed to mitigate the damages and delays were caused by D, the cost of the repairs was to be assessed as at the date of the action, i.e. )*'1, not )*'2,s prices. cf Liesbosch Dredger C won Doughty v urner Manufa!turing "o *19+7, CA [Tort / negligence - remoteness of damage - type of damage] D factory owner where C worked. C was in!ured by an asbestos cover falling into a cauldron of molten metal. (t was then unknown that the e"treme heat would cause the asbestos cement to undergo a chemical change creating or releasing water, which would turn to steam and one or two minutes later cause an eruption of the molten liquid from the cauldron. eld: 3ollowing The 4agon 5ound and distinguishing -ughes v 6ord 7dvocate 8)*+9:. D was not liable because the eruption which in!ured C was not foreseeable by a reasonable man at the time when the accident happened. The risk of splashing was foreseeable but what happened was an accident of an entirely different kind caused by an une"pected factor, vi; the instability of asbestos at high temperature. #air!hild v Glenhaven *8""8, [Tort / negligence / causation - C a$le to recover
#
against 9either or $oth9 employers] D representing a number of former of employers who failed in their duty of care to prevent workers contractingmesothelioma by negligent e"posure to asbestos dust. <ome workers had already died. C could not show during which employment he had suffered the offending dust. ="isting rules of causation required C to prove which employer had been negligent. eld: C could succeed against either or both employers, and it was up to them to sort out who would pay what proportion of the award. 4here ). C had been employed by more than one employer and, %. D had a duty of care to prevent dust inhalation and, 9. D had been in breach of that duty and, 4. C had contracted mesothelioma, and &. any other cause of mesothelioma could be ruled out but, +. C could not /because of the limits of human science0 prove during which employment he had inhaled the dust.... ...C was entitled to recover against both his employers. That conclusion was consistent with principle, and with authority, properly understood. :ilsher had been correctly decided on its facts, as a matter of public policy. The law would be e"tended in the instant case on the facts: “...If the mechanical application of generally accepted rules leads to [an unjust] result, there must be room to question the appropriateness of such an approach in such a case." 6ord >ingham "... such injustice as may be in ol ed in imposing liability on a duty!brea"ing employer in these circumstances is hea ily out#eighed by the injustice of denying redress to a ictim" 6ord -offman "$he concepts of fairness, justice and reason underlie the rules #hich state the causal requirements of liability ...$he purpose of the causal requirement rule is to produce a just result ..." 6ord icholls "%ny other outcome #ould be deeply offensi e to instincti e notions of #hat justice requires and fairness demands."
(t had not been suggested in argument that the claimant?s entitlement against either employer should be for any sum less than the full compensation to which he was entitled, although either of them could of course seek contribution against the other or against any other employer liable in respect of the same damage in the ordinary way /Civil 6iability /Contribution0 7ct )*'10. The #air!hild decision is a decision on its own particular facts and, whilst there might be other analogous situations where a #air!hild approach to assessing causation is appropriate, that category of case is to be kept within strict limits and the balance of probabilities test remains the guiding principle to determining causation. C won This decision was refined in barker v Corus 8%22+: -6 which stated that damages should be set in proportion to the amount of time a worker spent with a company. ;room v (utcher [19!5] CA [Tort / negligence / damages / contri$utory negligence] C was in!ured 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 eld: C?s damages were reduced by %&@. 3ailure to wear a seat belt is contributory negligence if use of a belt would have avoided or lessened the in!uries sustained in the accident. 3or the future a deduction of %&@ where wearing a seat belt would have prevented the in!uries, or )&@ where there would still have been some in!uries but they would have been less severe. <aca v 2irelli <eneral plc [8""7] CA 4[Tort - damages and compensation - deduction payments from group insurance deducti$le from damages] D employed C who was seriously in!ured in an accident at work. 4hilst C was off work he received payments form a group insurance scheme. 3ollowing the termination of his employment he received an ill health gratuity payment from the defendant and a payment under the insurance policy for Apermanent total disability?. C claimed damages for personal in!ury. eld: There was a fundamental difference between a payment made by an employer to his employee to compensate him for the consequences of in!uries
suffered in an accident, and a payment made to a victim of an accident by a third party out of sympathy for his or her plight. The instant case did not come within the Abenevolence e"ception? because the payments had been made by the tortfeasor, and the payment of benefits under the insurance policy was not equivalent, or analogous, to payments made by third parties out of sympathy. . won otson v =ast (er6shire Authority [193!] # ealth [Tort / negligence - damage - causation / medical treatment - loss of chance of recovery] D the hospital where C, a young boy was taken after he fell out of a tree in!uring his hip. The in!ury was wrongly diagnosed and he was thus given inappropriate treatment. -e suffered a permanent disability$ the hospital admitted negligence but denied liability. eld: C had not proved on a balance of probabilities that the negligent treatment had caused his disability # on the contrary, the probabilities were '&#%& that it had not. C therefore had no claim whatever. 6ord >ridge$ C would be entitled to full damage, not !ust a proportion for loss of chance of recovery, if C had shown that medical negligence had worsened the condition. C lost ughes v #ord Advocate *19+>, # [Tort / negligence / e%act type of damage not foreseea$le] D the Bost Cffice 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 1 and )2 took one of these lamps into the tent. Cne of them tripped, the lamp fell into the manhole and caused an e"plosion in!uring one boy. eld0 The accident was caused by a known source of danger and that made it foreseeable even though the way in which it happened was une"pected. 7n accident to a child through burns, was reasonably foreseeable, and the further fact that the development of the accident as it actually happened /vi;, the occurrence of the e"plosion0 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 $umber %il erminals rustee &td v $arbour and General Works (Stevin) &td *1991, CA [Tort / negligence - foreseea$ility 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 e"tra e"pense. eld: 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. 7 claim can succeed where the conditions are predictable, but the ground behaves unpredictably when sub!ected to the contractor?s particular construction methods, temporary or permanent. The damages concept in personal in!ury cases Dthin skull of the claimantD can apply equally to property damage claims. C won unter v Canary :arf #td and #ondon .oc6lands .evelopment Corporation *199!, # [Tort / causation - parties / private nuisance] CC alleged that their television reception had been affected by the building of the Canary 4harf tower. eld: overruling ?horasand&ian on the point that the occupation of property as a home /rather than a right to e"clusive possession0 was sufficient capacity to bring an action in private nuisance. 7nd reaffirming the decision in)alone v #as6ey. The idea that the complainant needed only a Dsubstantial linkD 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 discharges0 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 e"tend to personal in!uries, which are properly covered by the tort of negligence. C lost @o$ling v Associated .airies [1938] # [Tort / negligence / $reach - sensitivity of complainant / Aeggshell s6ull1 rule] D the employer of a workman who suffered a slipped disc through their negligence. -is earning capacity was reduced by half. 3our years later, he was found to have a pre#e"isting spinal disease unrelated to his accident.
4hen the case came to trial, he was totally incapable of work. eld: Doubting and not following their earlier decision in >aker v 4illoughby 8)*'2:. The employer was liable for only four years, loss of earnings, this being a rare case in which the Deggshell skullD rule operated to the benefit of the defendant. The onset of this illness was Done of the vicissitudes of life relevant to the assessment of damagesD. #aw Beform *Contri$utory 5egligence, Act 1975 sC1 *1, 7pportionment of liability in case of contributory negligence ). /)0 4here 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 e"tent as the court thinks !ust and equitable having regard to the claimant,s share in the responsibility for the damage: Brovided that## /a0 this subsection shall not operate to defeat any defence arising under a contract$ /b0 4here 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 e"ceed the ma"imum limit so applicable. /%0 4here damages are recoverable by any person by virtue of the foregoing subsection sub!ect 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. /90, /40 . . . /&0 4here, in any case to which subsection /)0 of this section applies, one of the persons at fault avoids liability to any other such person or his personal representative by pleading the 6imitation 7ct )*9*, 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. /+0 4here any case to which subsection /)0 of this section applies is tried with a !ury, the !ury shall determine the total damages which would have been recoverable if the claimant had not been at fault and the e"tent to which those damages are to be reduced. 4[5egligence - remoteness of damage / damages
#ies$osch .redger v DD =dison
[19>>]
#
must $e natural or immediate consequence of $reach - e%tent of damage - financial frailty is not physical wea6ness] D the owner of the =dison negligently sank a dredger in Ereece. The owners of the dredger were too poor to buy a replacement and had to hire a substitute to carry out an e"isting contract$ it would have been cheaper to buy, rather than hire. eld: 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. 6ord 4right $he la# cannot ta"e account of e erything that follo#s a #rongful act& it regards some subsequent matters as outside the scope of its selection, because "it #ere infinite for the la# to judge the cause of causes," or consequences of consequences.
)alone v #as6ey [19"!] CA
[Tort / negligence / causation - no cause of action when there was no contractual relationship $etween C and .] D let premises to 7, who sublet them to a company > whose manager and his wife C lived on the premises. 4hen C was using the toilet the tank fell on her causing in!uries. The tank fell because vibration from a generator ne"t door had made the tank lose. D sent competent workmen round to fi" the tank, but it still fell on her. eld: 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 $een previously dou$ted $ut was reaffirmed $y the o# in unterC
Margereson & $an!o!k v 'W (oberts &td *199+, CA
[Tort - negligence - remoteness of damage foreseea$ility of harm - type rather than the e%tent of damage must $e foreseen] D the owners of a factory near where the two complainants had lived and played as children. They contracted mesothelioma due to their e"posure to asbestos eld: D was liable to C because they knew or ought to have known that asbestos dust was escaping from the factories into the surrounding street and could cause
harm to people who were e"posed to it. Fisk of harm of allowing asbestos dust to escape factory was foreseeable 7s stated by 6ord 6loyd in 2age v Dmith *1995,, ?the test in every case ought to be whether the defendant can reasonably foresee that his conduct will e"pose the claimant to the risk C won 7lso here M!Ghee v )ational "oal Board[19!8] # [Tort - negligence - pro%imate cause] D failed to provide washing facilities for C whom they sent to clean out brick kilns in hot and dirty conditions, and clouds of abrasive brick dust, C cycled home, further e"erting himself caked with sweat and grime. 7fter some days he was found to be suffering from dermatitis. eld: D was liable in negligence because their breach of duty had caused, or materially contributed to, the in!ury suffered by C, notwithstanding that there were other factors, for which D was not responsible, which had contributed to the in!ury. /)0 D?s breach of duty had, for practical purposes, materially increased the risk of in!ury to C$ /%0 C had shown, on a balance of probabilities, his in!ury had been caused or contributed to by respondents? breach of duty. .isapproved dictum Lord 'ilberforce 4ilsher v =sse" 7rea -ealth 7uthority 8)*11: )c?ew v olland and annen and Cu$itts *Dcotland, #td [19+9] # 4[Tort - negligence - causation - novus actus interveniens] D the employer of C who suffered an in!ury at work which the defendants were liable, and as a result he occasionally lost control of his left leg, which gave way under him. 7 few days later he went to inspect a flat which was approached by a steep stair, between two walls, and without a hand#rail. Cn 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. <uddenly he lost control of his left leg, threw his daughter back in order to save her, and tried to !ump so as to land in an upright position rather than falling downstairs. 7s a result he sustained a severe fracture of his ankle.
eld: -is act of !umping 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. -is conduct therefore amounted to a novus actus interveniens because it was unreasonable. (f he had had no reasonable alternative to acting as he did, his conduct would not have broken the chain of causation. C lost )c:illiams v Arrol [19+8] # [Tort / negligence - causation] D a building firm had not provided a safety belt to a steel erector who fell '2 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 worn0, there was evidence to show that the man would probably not have worn a belt even had it been provided. eld: 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 /a0 on the evidence deceased would not have worn a safety belt if it had been provided, and /b0 there was no duty on the employers to instruct or e"hort the deceased to wear a safety belt. C lost Egwo v Taylor [193!] # [Tort - damage - foreseea$ility] D negligently set fire to his house while using a blowlamp. C a fireman was in!ured while fighting the fire. eld0 C?s in!uries were a foreseeable result of D,s negligence, and it was irrelevant that he was employed as a fireman and e"pected to take risks as part of his !ob. C won *age v Smith [199+] # [Tort - negligence - damage causation and remoteness - multiple causes - remoteness of damage - foreseea$ility - 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 /5=0 from which he had suffered for about %2 years but which was then in remission. eld: 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 e"pose the claimant to the risk of personal in!ury, whether physical or psychiatric. C was not required to prove that nervous shock was reasonably foreseeable by D. (t was irrelevant that D could not have foreseen that the claimant had an Aeggshell personality?. Bsychiatric illness could be suffered as a consequence of an accident although not demonstrably attributable directly to physical in!ury to the claimant. Ber 6ord 6loyd. (n the case of secondary victims, i.e. persons who were not participants in an accident, the defendant will not be liable unless psychiatric in!ury 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 2errett v Collins *1993, CA [Tort / negligence / duty of care / &ust to impose / not restricted $y cost of insurance or need for stricter regulation] D built and flew a kit plane. C was a passenger. The plane crashed C was in!ured. The certifying authority and its inspector were both liable in negligence having certified an e"perimental aircraft as fit to be flown, and the duty e"tended to any passenger who was carried in the aircraft. eld: imposing a duty of care, members of the public would e"pect to be protected from in!ury by careful operation of the regulatory system, and to be compensated if in!ured by its negligent operation. C wonC *i!kford v +mperial "hemi!al +ndustries pl! [1993] # 4hole case, here [Tort - negligence - damage causation and remoteness - multiple causes - foreseea$ility] (C(, employed C as a secretary, she suffered repetitive strain in!ury /F<(0 in her hands allegedly caused by typing. eld0 (n 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 (C( were not negligent. C lost Be, *olemis*olemis and #urness Withy & "o [1981] 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. 4hile 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. eld: The fire was not a reasonably foreseeable consequence of allowing the plank to fall. -owever, it was reasonably foreseeable that the falling plank would cause some form of damage to the vessel. >ecause of this, the court established D?s negligence. 4hether the particular damage caused by the fire was recoverable depended solely on it being a direct consequence of the negligent act. 7lthough 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. Be 2olemis was not followed by the Brivy Council in The :agon )ound 5oC1. The :agon )ound is now preferred. B v Croydon *199!, CA ealth Authority [Tort / negligence - foreseea$ility of damage] D "#rayed C as part of medical for !ob as nurse. D failed to inform C and her EB of serious heart problem. C had a child and later became depressively ill thinking she had reduced life e"pectancy. eld: D not responsible for her becoming pregnant, damages reduced. Dayers v CA arlow F.C [1953] [Tort - foreseea$ility of damage - contri$utory negligence] D a local authority provided public toilets. 4hen C tried to leave the cubicle, she found the handle was missing. 7fter 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, in!uring herself.
eld: her actions were not unreasonable in the circumstances and the in!ury was a natural and foreseeable consequence of DD,s negligence, and not too remote. -owever, her damages were reduced by %&@ for her negligence in relying on the toilet roll as a secure foothold. S!ott v Shepherd [1!!7] Ct of C2 [Tort / negligence - remoteness of damage intervening events] D /<hepherd0 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. eld: 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 Erey, CG "I loo" upon all that #as done subsequent to the original thro#ing as a continuation of the first force and first act, #hich #ill continue till the squib #as spent by bursting, and I thin" that any innocent person remo ing the danger from himself to another is justifiable. . . . I do not consider [them] as free agents in the present case, but acting under a compulsi e necessity for their o#n safety and self!preser ation. $he defendant there #as, I thin", guilty of a public nuisance, and the [claimant] could ha e sued him in case." >lackstone G thought that 8negligence:, and not trespass, would lie against <hepherd. Dimmons v (ritish Dteel plc [8""7] # 4hole case here H[Tort / remoteness of damage / primary victim / foreseea$le harm includes psychiatric reaction following initial in&ury] D, the steel company that employed C. C fell and hit his head at work. -e suffered depression and a pre# e"isting skin disease flared up, not because of the original in!ury Ibut from his anger at the happening of the accidentJ /lack of apology or support following the accident, and failing to prevent the accident when warned of the danger0. eld: C was entitled to compensation for the consequences of the accident and not !ust for the physical in!uries. C?s anger was neither de minims nor an intervening act. C was Ia primary victimJ according to the classification in Bage v <mith 8)**+: -6.
7 wrongdoer takes his victim as he finds him <mith v 6eech >rain K Co 6td 8)*+%: C7. There must now be added these further qualifications: /)0 that a defender is liable although the damage may be a good deal greater in e"tent than was foreseeable, as he can escape liability only if the damage can be regarded as differing in kind from what was foreseeable: -ughes v 6ord 7dvocate /)*+90 -6$ and /%0 where it is established that physical in!ury to the pursuer was foreseeable, it is unnecessary to ask whether it was foreseeable that he would also suffer psychiatric in!ury: Bage v <mith 8)**+: -6. The general rule is that it must be shown that the in!ury would not have occurred but for the act or omission of the defender. >ut if a number of factors contributed to the in!ury it is sufficient that the contribution which the factor attributable to the defender,s fault made to the in!ury was material: :ardlaw v (onnington Castings #td [195+] #C C won Smith v &ee!h Brain & "o *19+8, -(. [Tort / negligence - foreseea$ility of damage application of the 9thin s6ull rule9 is an e%ception] D the employers of a workman who was slightly splashed by molten metal through his employers, negligence and suffered a burn on his face. The burn aggravated a pre#e"isting cancerous condition and the man died. C his widow sued. eld: Din!ury to the personD was regarded as a single kind of damage and some minor in!ury at least was foreseeable. 7 tortfeasor took his victim as he found him, and the decision in The :agon )ound did not override this principle$ accordingly, since the type of in!ury 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 in!ury, vi;, that the burn would cause cancer from which < would die. C won Dpartan Dteel v )artin [19!8] CA 4[Tort / negligence - damage / pu$lic policy] DD 4hile digging a trench negligently cut off the
electricity supply to BC?s steelworks. eld: the value of the DmeltD that was ruined by the power cut, including the profit directly associated with it was allowed. -owever, 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 AAparasitic?? damages in =nglish 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 anne"ed to some other claim for damages, i.e., that the economic loss in respect of the four AAmelts?? was recoverable as a AAparasite?? by being attached to the claim in respect of the first AAmelt.?? 6ord Denning 5F: %t bottom I thin" the question of reco ering economic loss is one of policy. 'hene er the courts dra# a line to mar" out the bounds of duty, they do it as a matter of policy so as to limit the responsibility of the defendant. 'hene er the courts set bounds to the damages reco erable!!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. 6awton 6G: $he differences #hich undoubtedly e(ist bet#een #hat damage can be reco ered in one type of case and #hat in another cannot be reconciled on any logical basis. I agree #ith Lord Denning )* that such differences ha e arisen because of the policy of the la#. )aybe there should be one policy for all cases& the enunciation of such a policy is not, in my judgement, a tas" for this court. C wonC Stovold v Barlo.s [1995] CA [Tort - damage causation and remoteness multiple causes - damages - causation of loss action ta6en $y 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.
eld: 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 &2 per cent. Cn 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. hompson v 'ames *1993, 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. eld: There was no doubt as to the e"istence of a duty of care, it was not fair, !ust 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. (t broke the chain of causation because the parents were not acting on D?s advice. (t 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 lostC :agon )ound1 Everseas Tan6ship *FC?C, #td v )orts .oc6 and =ngineering Co #td *The :agon )ound, [19+1] [Tort - negligence - remoteness of damage - type of damage foreseen] D carelessly discharged oil from their ship, the 'agon )ound, into <ydney -arbour. The wind and tide carried the oil beneath C,s wharf where welding operations were being carried on by C,s employees. 7fter being advised that they could safely weld, C,s employees continued their work. <ome && to +2 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. eld: 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. . not lia$le for the fire $ut lia$le for the fouling Comment0 6iability 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. (n 4agon 5ound ) and %, the two sequential claimants argued the risks of fire in opposite ways. =ach of these diametrically different presentations of the risk of fire was accepted by the very same court as equally true and valid facts. :agon )ound 8 The :agon )ound *5o 8,' Everseas Tan6ship *F?,' #td v The )iller Dteamship [19+!] [19++] 2C [Tort - negligence - remoteness of damage - type of damage foreseen] D carelessly discharged oil from their ship, the 'agon )ound, into <ydney -arbour. The wind and tide carried the oil beneath a wharf where welding operations were being carried on. 7fter being advised that they could safely weld, they continued their work. <ome && to +2 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. eld: The damage was reasonably foreseeable /though admittedly very small0 and therefore not too remote. (f 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 e"tent 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 e"clusively on the finding that the risk of fire /for the same incident as The 4agon 5ound )0 was greater than ;ero and D should be held responsible for foreseeable risks. 6ord Feid: +It follo#s that in their lordships, ie# the only question is #hether a reasonable man ha ing the "no#ledge and e(perience to be e(pected of the chief engineer of the 'agon )ound #ould ha e "no#n that there #as a real ris" of the oil on the #ater catching fire in some #ay- if it did, serious damage to ships or
other property #as not only foreseeable but ery li"ely.+ (n 4agon 5ound ) 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 going0. The court ultimately found that the risk of fire was ;ero and denied recovery to C for fire damage because it was unfair to hold D responsible for such unforeseeable harm. 6ord Feid: “.o if the [claimants] in the former case had set out to pro e that it #as foreseeable by the engineers of the 'agon )ound that this oil could be set alight, they might ha e had difficulty in parrying the reply that then this must also ha e been foreseeable by their manager. $hen there #ould ha e been contributory negligence and at that time contributory negligence #as a complete defence in /e# .outh 'ales.+ Wilsher v /sse0 Area $ealthAuthority [1933] # [Tort / negligence / causation - pro%imate cause / the $alance of pro$a$ilities] D the hospital where C was born prematurely. D negligently gave C e"cess o"ygen. The catheter was twice inserted into his vein instead of his artery. -e developed an incurable eye condition. eld: -is blindness could have been caused by any of half a do;en factors found in premature babies, of which the hospital,s admitted negligence was !ust one. The combination of negligence and in!ury did not in itself create a presumption of causation. (t was not for D to show an alternative cause but for C to show /on a balance of probabilities0 that the negligence had caused the damage, or had at least materially contributed to it, and this he could not do. C lost' a retrial orderedC .isapproved 3airirchild v Elenhaven 3uneral <ervices 6td$ 3o" v <pousal /5idlands0 6td$ 5atthews v 7ssociated Bortland Cement 5anufacturers /)*'10 6td 8%22%:
