TORT 1.12D NEGLIGENCE (DAMAGES FROM BREACH)

• Isochukwu
• 1
• Tort I

Continued from lesson 1.12C

DAMAGES WAS CAUSED BY THE DEFENDANT’S BREACH OF HIS DUTY OF CARE.

Damages in this sense is not monetary compensation but it involves physical, otherwise injury.

In determining whether the damages was caused by the defendant’s breach, two factors come to play;

• Causation in fact.
• Remoteness of damage. (causation in law)

Note that in reaching a conclusion, the courts look at the need to do justice in the present case and the effect of the judgment on the legal system.

CAUSATION IN FACT.

The claimant should prove that the defendant’s breach actually caused the damage.

The first step usually starts with the But-for test: which involves asking the question; but for the defendant’s breach, would such breach have occurred?

Because of the complexities involved in construing damages caused by the defendant, the courts usually adopt the common-sense approach rather than the philosophical approach else, there would be no case.

Barnett V . Chelsea and Kensington Hospital Management Committee.

In this case, the deceased (the plaintiff’s husband) went to the hospital complaining of nausea and vomiting. The doctor, instructed the nurse to tell him to go home and consult his GP (a general health practitioner). He died 5 hours later of arsenical poisoning. The court held, using the “but-for” test that; had the doctor checked him then, there would still have been nothing the doctor could have done to save him. As such, the hospital was not liable as failure to examine (the breach) was not the cause of the death.

McWilliams V  Sir Williams Arrol and co ltd

The worker fell from a building which he was working on. It was established that had the worker been wearing a safety harness (which the employer was to provide), he would not have fallen. The employers were able to establish that even though they owed their employees a duty of care, the worker would have fallen anyway because he has been offered the safety harness in the past and declined to wear. Failure to provide safety harness did not cause the death.

The but-for test usually runs into hitches. E.g

• Multiple causes or tortfeasors of the claimant’s injury.
• The determination as to whether an intervening event worsened the claimant’s injury.
• Contributory negligence.

In Mcghee V  National Coal Board.

The claimant worked in an industry and was exposed to brick dust. There was no shower facility at the place of work as such, he had to cycle home everyday before he had his bath. He got dermatitis. The employers were held liable for neglecting to provide a shower facility for the workers. It was held that although the cause could not be attributed directly to the defendant employers, so long as they materially increased the likelihood of the occurrence of the damage, they were held liable.

Baker V  Willoughby

In this case, the plaintiff’s leg was injured in an accident due to the defendant’s negligence. Before the conclusion of the suit, he was shot on the same damaged leg by armed robbers. The leg had to be amputated. He could not trace the armed robbers. The court held that the defendant be fully liable.

Fairchild V  Glenhaven funeral services.

In this case, the plaintiff had worked for various employers and during his employment, he had been exposed to asbestos. He later contacted mesomothamia. Occurs when a fibre has penetrated the cell in the lungs. According to medical evidence, it usually takes about 30 years before the symptoms could be noticed. As such, he could not point at any particular one of his employers as being his boss when the disease was contacted. The court followed the ruling in Mcghee V  National coal board and held that each of the employers were wholly and severally liable because they all materially increased the risk of contacting the disease.

This rule has been accepted but varied in Baker V  Corus where it was held that the defendants would be proportionally liable.

 

Issues also arise as to loss of chance of recovery.

Gregg V  scott.

In this case dealing with loss of chance of recovery. The doctor negligently diagnosed the plaintiff’s malignant cancer to be benign. This could delay the plaintiff’s surgery reducing his chances of recovery. The court held that the plaintiff’s chances of recovery has been reduced.

REMOTENESS OF DAMAGE:

The law sets a limit to which the tort-feasor should be liable for his negligence.

In assessing the extent to which the defendant should be liable, the courts usually ask;

• To what extent should the defendant be liable for causing damage to the plaintiff?
• Is the harm a reasonably foreseeable consequence or is there a break in causation or contributory negligence?

As was noted in the wagon mound case, that no man is liable ad infinitum.

Re Polemis and the wagon mound 1 and 2 cases.

Repolemis was decided by the house of lords in England while wagon mound 1 was decided by the privy council

Re Polemis (polemis V  furness

In this case, some benzene vapor had settled on the hold of the ship. During transfer, one of the worker negligently dropped a plank which caused a spark and ignited the fuel leading to a fire which destroyed the ship. The court held that the defendants were responsible for every direct consequences of their acts foreseeable or not.

 

Wagon mound 1 (overseas Tankship V  morts dock company)

In this case, the defendants negligently discharged oil into the sea. The oil floated on the surface of the sea and some lodged at a nearby wharf. On the wharf, there were some welding operations going on. The plaintiffs knew that there was oil but later got confirmation that they could continue their welding operations. Some molten metal from the welding operation fell on the sea which ignited some cotton which in result ignited the fuel which burnt the wharf.

The court held that the damages were too remote as the defendants could not have contemplated it as a consequence of their act. The court in this case disagreed with the case of re polemis holding that the liability imposed is seemingly too broad and argued that for a defendant to be held liable, the damages must have been reasonable foreseeable. Form this case, the question to be asked is: could the damage caused have been reasonable foreseeable by a reasonable man? If the damages resulting are too remote and far flung, the defendant should not be liable.

In Hughes V  Lord Advocate (where it was held that accidents of burns from the lamps was reasonably foreseeable even though it occurred through explosion see also Doughty V  Turner Manufacturing co ltd (asbestos cement and molten metal causing an explosion)), this reasoning was confirmed. Some more tests were added;

• The damage caused should not be of a different kind than that foreseen.
• Once it was foreseeable, the defendant cannot argue that it occurred by a different means.

 

Other principles applied in determining the damage include;

• Egg-shell skull principle. This is one area where the repolemis rather than the wagon mound comes to play.

Smith V  Leech Braine and co ltd.

The plaintiff’s husband was an employee of the defendant company, due to the defendant’s negligence, a piece of molten zinc flew out of a tank and inflicted a burn on his lips. Cancer developed on the site of the burn of which he died three years later. The defendants were held liable even though the death was not a foreseeable consequence.

R V  Blaue

The accused stabbed the victim who required blood transfusion, she refused the transfusion on the ground of her religious belief as a result, she died. The defendant was held to be liable.

• Quantum of damages: that the defendant cannot argue that he could not have foreseen that the amount of loss would be so great.

Novus actus intervenes.

Snaps the chain of causation.

Mange V  Durie contributory negligence.

In this case, the plaintiff was knocked down from his bicycle due to the defendant’s negligent driving. When he was in the hospital, he discharged himself against medical advice and before his treatment was completed. His leg became infected and had to be amputated. His claim for damages was rejected.

Ekwo V  Enechukwu.

The plaintiff’s hand was injured while he was fixing the defendant’s seat. The plaintiff consulted a native doctor to treat the wound. The hand later had to be amputated. The court held that the plaintiff did what a reasonable man in his circumstance would do because that was what he honestly believed could heal him.