Donal Nolan | Negligence in the Common Law | Belo Horizonte | 5 October 2017

Congresso Internacional de Responsibilidade Civil: Novas Tendências

Belo Horizonte

5 October 2017

Negligence in the Common Law

Professor Donal Nolan, University of Oxford

I. INTRODUCTION

My presentation today is divided into three parts: first, an outline of the essential
elements of the most important component of the modern common law of tort, the
cause of action for negligence; second, a brief analysis of a distinctive feature of the
common law of negligence, the concept of the ‘duty of care’; and, third, a discussion
of some controversial English cases concerning the causation requirement in
negligence. My central focus throughout is on English law, but much of what I have
to say is equally relevant to the law of other common law countries, such as
Australia, Canada and (to a lesser degree) the United States.

Before I turn to look at the negligence cause of action, however, I should just
mention as background that the common law of tort can be described as a ‘hybrid’
system, in that it consists of a combination of two main elements: first, the so-called
‘nominate’ torts, which are older causes of action defined primarily by the interest
they protect (examples of such nominate torts include the tort of defamation, which
protects reputation, and the tort of private nuisance, which protects real property
interests); and secondly, the tort of negligence, which has developed over the last 150
years or so, and which protects a range of different interests from negligent
interference, including bodily integrity, real and personal property, and even purely
economic interests.

II. THE STRUCTURE OF THE NEGLIGENCE TORT

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 Donal Nolan | Negligence in the Common Law | Belo Horizonte | 5 October 2017

There is by no means agreement on the structure of the negligence tort in the

common law world, but my view is that negligence liability can be best understood in
terms of six general elements, in respect of which the claimant bears the burden of
proof. If the claimant establishes the existence of these six elements, then the burden
of proof shifts to the defendant to establish one of the four defences to a negligence
claim.

Element 1: duty in law

The issue here is whether there is (or should be) a rule of law that either allows or
bars recovery in this category of case (so for example, the question in a duty in law
case might be ‘Do the police owe a duty of care to the maker of an emergency
call?’). I will look at this element in more detail in the second part of my lecture.

Element 2: fault (‘breach of duty’)

The issue at the fault stage of the negligence enquiry is generally whether the
defendant created unreasonable risks of injury to others, and this is assessed by
asking whether the defendant’s conduct fell below the objective standard of the
reasonable person.

Element 3: damage

As for the damage stage, here the issue is whether the claimant has suffered a form of
harm which is actionable in negligence. To give you an example of the operation of
this element, in a case from the 1990s it was held that an elderly couple who had
suffered distress after becoming trapped in an overcrowded hospital elevator for an
hour could not recover damages from the hospital authorities, since mere emotional
distress without lasting psychological consequences did not amount to ‘damage’ for
the purposes of a negligence claim.

Element 4: factual causation

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 Donal Nolan | Negligence in the Common Law | Belo Horizonte | 5 October 2017

The issue at the factual causation stage is whether there was a historical connection
between the defendant’s fault and the claimant’s damage, a question which is
generally resolved by asking whether, if the defendant had not been negligent, the
claimant would still have suffered the damage (this is the so-called ‘but-for’ or sine
qua non test). I will return to this element of the cause of action in the final part of
my lecture.

Element 5: legal causation

The issue here is whether there was an intervening act or omission of the claimant or
a third party which ‘broke the chain of causation’ between the defendant’s negligent
conduct and the claimant’s damage. Suppose for example that the claimant is injured
in a road accident because of the defendant’s negligence, and taken to hospital. And
suppose further that the medical care given to the claimant in the hospital is also
negligent, with the result that the claimant suffers an avoidable complication of her
initial injuries, which leaves her disabled. In this scenario, the defendant is clearly
liable for the claimant’s initial injuries, but a court might hold that he is not liable
beyond that, because the negligent medical care broke the chain of causation between
the defendant’s negligence and the claimant’s disability.

Element 6: remoteness of damage/duty in fact

The issue here is whether the damage suffered by the claimant was the
materialisation of one of the risks which made the defendant’s conduct negligent in
the first place. Suppose for example that the defendant is negligently speeding down
a country road during a storm when a tree falls on the car, injuring his passenger, the
claimant. In this scenario, all the other elements that we have considered are
satisfied: there is a duty of care, fault, damage and factual causation (since if the
defendant had been driving at a safe speed, the car would have been further back on
the road when the tree fell), and nor is there any act of the claimant or a third party
that could be said to have broken the chain of causation. And yet it is clear that the
defendant would not be liable, since the risk of trees falling on your car is not one of

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the risks which makes it negligent to drive too fast, and so the remoteness of damage
element of the cause of action is not satisfied.

Note also that there is a requirement closely related to the remoteness issue (and
usually referred to as the ‘duty in fact’ requirement) that the risk of injury to the
claimant must have been one of the risks which made the defendant’s conduct
negligent. A good example of the operation of the duty in fact requirement is the
famous American case of Palsgraf v Long Island Railroad. The pleaded facts of
Palsgraf were as follows. Two train guards helping a passenger board a train
carelessly knocked an innocent-looking parcel out of his hands. Unknown to them,
the parcel contained fireworks. The parcel then fell under the moving train, causing
an explosion, which in turn led to a scales at the other end of the platform falling on
the claimant, injuring her. In the Supreme Court of New York the claimant’s action
against the guards’ employer failed on the grounds that injury to the claimant had not
been a foreseeable consequence of the guards’ negligence, and so the risk of such
injury was not one of the risks that made the guards’ conduct negligent.

If (as in Palsgraf), the duty in fact requirement is not satisfied, then the courts will
hold that the defendant did not owe the claimant a duty of care, even though the
claimant has cleared the duty in law hurdle and established that in this category of
case liability can be imposed for negligence (so the ‘duty in care’ enquiry is really a
composite of two issues, the duty in law issue and the duty in fact issue).

Once these six elements have been established by the claimant, the burden of proof
shifts to the defendant to establish one of the four defences to a negligence claim.

Defence 1: volenti (consent)

Here the defendant needs to establish that the claimant freely and knowingly
consented to the defendant’s negligent conduct.

Defence 2: exclusion of liability

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Here the defendant needs to establish that the claimant waived the right to sue in the
event that she suffered damage as a result of the defendant’s negligence (a conclusion
which will usually be based on the terms of a contract between the parties). Note
however that legislation in the UK prohibits a business from excluding its liability for
personal injury or death caused by negligence, and that a business may only exclude
liability for other forms of damage caused by negligence (such as property damage)
if it is reasonable for it to do so.

Defence 3: illegality

Here the defendant needs to establish that the claimant is founding her action on the
claimant’s own criminal conduct, or that the claimant engaged in serious criminal
activity which was inextricably connected to the alleged tort.

Defence 4 (partial defence): contributory negligence

Here the defendant needs to establish that the claimant was partly to blame for the
injury in respect of which she is bringing her claim. Note that contributory
negligence is only a partial defence, so that the claimant’s action will still succeed,
but the damages she is awarded will be reduced by such an amount as the court
thinks appropriate in the light of her contributory fault.

III. THE DUTY OF CARE REQUIREMENT

A key difference between negligence in common law systems and general clauses in
civil law systems imposing liability for damage caused by fault (such as article 1240,
formerly article 1382, of the French Code Civil) is the use of the duty of care
concept. As we have seen, this duty of care concept encompasses two distinct
elements of the cause of action for negligence, namely duty in law and duty in fact.
In reality, however, by far the more important of the two components of the duty
concept is the duty in law requirement, and in this second part of my lecture I would
like to expand on that requirement a little.

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As we saw when I introduced this element, what makes something a duty in law
issue is the fact that the court is concerned not so much with the facts of the
particular case, but with whether negligence liability is, or should be, imposed in this
type or category of case. And the chief significance of the distinction between this
duty in law element and the other five elements of the negligence cause of action is
procedural, because a duty in law issue is always a question of law. This means that
decisions of trial judges on duty in law issues are easier to appeal against than say a
decision on fault (which is a question of fact), and it also means that decisions on
duty in law issues have precedential force, so that they bind the lower courts
(decisions on questions of fact do not).

Now it is important to note that duty in law is rarely an issue in straightforward cases
where a positive act of the defendant has caused the claimant physical injury or
property damage. It follows that in everyday negligence cases involving, for
example, accidents on the roads or at work, duty in law is rarely an issue at all, and
the focus is instead on questions of fact such as fault and causation.

Duty in law can however be an issue in the following three types of case (among
others):

Psychiatric injury cases

Where the damage of which the claimant complains is a psychiatric injury, a detailed
set of duty in law rules has developed to govern whether or not a duty of care is
owed. In the case of so-called ‘secondary victims’, who suffer psychiatric injury after
witnessing the accidental death or physical injury of another person, these rules
revolve around the closeness of the secondary victim’s relationship with that other
person, and the proximity of the secondary victim to the accident itself in time and
space.

Pure economic loss cases

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 Donal Nolan | Negligence in the Common Law | Belo Horizonte | 5 October 2017

In common law systems ‘pure economic loss’ is defined as financial (or ‘pecuniary’)
loss that does not result from damage to the person or property of the claimant. And
in English law a duty of care is generally only recognised in respect of such loss
where the defendant has ‘assumed a responsibility’ towards the claimant, in other
words where the defendant has taken on a task or job of some kind on behalf of the
claimant (and note that in such cases, there will not be a contract between the parties
under English law unless the claimant offers the defendant something in exchange,
such as the payment of a fee).

Omissions cases

In general, there is no liability for a mere omission in common law systems, but
again there is an exception where the defendant has assumed a responsibility towards
the claimant, and there may be some other limited exceptions as well. It follows that,
for example, a doctor is free to walk past a person who has collapsed in the street, but
that if the doctor stops to treat the person (and thereby assumes a responsibility
towards her) a duty of care will then arise.

IV. CONTROVERSIES IN THE ENGLISH LAW OF FACTUAL

CAUSATION

As I said earlier, common lawyers usually divide the question of causation into two
parts, factual causation and legal causation, with the question at the factual causation
stage being whether there is a historical connection between the defendant’s fault and
the damage suffered by the claimant. In the third and final part of my lecture, I want
to focus on controversies in the area of factual causation, which has undoubtedly
been the most contentious area of English negligence law over the last 15 years or so.

We saw earlier that the basic test of factual causation is the but-for (or sine qua non)
test, which requires the claimant to establish that but for the defendant’s negligence,
the claimant would not have suffered the damage.

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 Donal Nolan | Negligence in the Common Law | Belo Horizonte | 5 October 2017

Part and parcel of this ‘but-for’ test is the rule that this question of historical
connection is determined on the balance of probabilities, with the burden of proof
lying on the claimant, so that in general the claimant has to convince the judge that it
is more likely than not that the but-for test is satisfied if she is to establish factual
causation.

The causal uncertainty problem

In practice, the most difficult problem the courts in common law countries have
faced in the factual causation area is the problem of causal uncertainty, where it is
simply impossible to establish whether or not there was a causal link between the
defendant’s negligence and an injury to the claimant that fell within the risks created
by that negligence. If the orthodox but-for test is applied in these cases, then since the
claimant is unable to establish on the balance of probabilities that the defendant’s
negligence was a but-for cause of her injury, her action will fail. However, courts in
many common law jurisdictions, faced with this type of case, have departed from
legal orthodoxy in order to allow the claimant to recover.

A good example of such a case is the decision of the House of Lords (then the UK’s
highest court) in McGhee v National Coal Board (HL, 1973). The claimant in
McGhee worked in a brickworks. He came into contact with brick dust in the course
of his work, but this was not due to the negligence of his employers. However, they
had been negligent in not providing showers so that he could wash the dust off at the
end of the day, with the result that it was on his skin for longer than it needed to have
been. The claimant then contracted dermatitis, and the medical evidence was that the
dermatitis was the result of the contact with the dust, and that the absence of showers
had increased the risk of the dermatitis coming about. However, it was not clear
whether in this particular case the delay in removing the dust had made a difference
or not. Nevertheless, the House of Lords held in McGhee that the claimant could
recover damages. Otherwise, they argued, the state of medical knowledge meant that
employers could disregard their duty to take reasonable care for the safety of their
employees with impunity (since it could never be shown in such a case that the
provision of showers would have made a difference).

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 Donal Nolan | Negligence in the Common Law | Belo Horizonte | 5 October 2017

However, the English courts have not always been prepared to bend the rules to
allow claimants to succeed in cases of evidential uncertainty, as is shown by the later
decision of the House of Lords in Wilsher v Essex Area Health Authority (HL, 1988).
The claimant in this case was a baby who was born prematurely and suffered from
oxygen deficiency. The hospital staff negligently administered excess oxygen, and
the claimant later developed an eye condition which made him nearly blind. One
possible cause of this condition was the excess oxygen, but there were also four
other, unrelated, possible causes, for which the hospital was not responsible. As a
result, it was impossible to know whether the excess oxygen caused or even
contributed to the onset of the condition. On these facts, the House of Lords simply
applied the but-for test, with the result that the claim failed.

The Fairchild exception

The leading case on causal uncertainty in English negligence law is now Fairchild v
Glenhaven Funeral Services (HL, 2003). The basic scenario at issue in Fairchild was
that the claimant had been employed at different times by A and B, both of whom
had negligently exposed the claimant to asbestos dust. The claimant had then
contracted a mesothelioma (a form of cancer), which was caused by the inhalation of
asbestos dust at work. However, the claimant was unable to prove, on the balance of
probabilities, that the mesothelioma was the result of his inhaling asbestos dust
during his employment by A or during his employment by B or during his
employment by A and B taken together. In these circumstances, the House of Lords
chose to depart from the but-for test and held that both A and B were liable because
their negligence had materially contributed to the risk that the claimant would
contract the disease.

However, the House of Lords in Fairchild was concerned to limit the scope of the
decision. In particular, they were keen to distinguish the Wilsher case, the result of
which they approved. The House of Lords did this by holding that the Fairchild
principle applied only if the possible causes of the claimant’s injury were all the
same agent (here asbestos dust). This meant that the principle covered the decision in

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 Donal Nolan | Negligence in the Common Law | Belo Horizonte | 5 October 2017

McGhee (where the single causal agent was brick dust), but that it did not cover
Wilsher (where excess oxygen was only one of a number of agents that could have
caused the harm).

It is impossible in the time available to describe all the complexities and difficulties
to which the decision of the House of Lords in Fairchild has given rise, but suffice to
say that there have been many subsequent decisions on the precise limits and
implications of the so-called ‘Fairchild exception’, and that the exception has caused
problems not only in the law of tort, but also in connected areas of law, such as
insurance. It is therefore not surprising that in a number of recent cases on the
causation question, several senior judges have expressed doubts about the wisdom of
the House of Lords’ decision to depart from the but for test in Fairchild, with one
member of the UK Supreme Court saying in respect of that decision that ‘the law
tampers with the “but-for” test of causation at its peril’.

Loss of a chance

I want to finish my lecture by turning to another controversy in the realms of factual

causation, namely the so-called ‘loss of a chance’ argument. This argument seeks to
bypass the impossibility of proving causation in certain types of medical malpractice
case by recharacterising the damage that the claimant has suffered as the lost chance
of avoiding the injury, rather than the injury itself. If the argument is accepted, then
the result would be that where a doctor’s negligence has caused a patient to lose a
chance of a positive outcome, recovery would be permitted for this lost chance.
However, the loss of a chance argument has been rejected by the courts in most
common law countries, including England.

The two English cases in which the loss of a chance argument has been most fully
considered are Hotson v East Berkshire Area Health Authority (HL, 1987) and Gregg
v Scott (HL, 2005).

The claimant in the Hotson case had injured his leg after falling from a tree. After the
fall, he was taken to the defendant’s hospital, but the injury was not diagnosed

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 Donal Nolan | Negligence in the Common Law | Belo Horizonte | 5 October 2017

correctly, and it was five days before a proper diagnosis was made. The claimant
later developed a serious disability as a result of the fall, and brought a negligence
claim in respect of that disability against the hospital, which admitted fault, but
denied causation.

The trial judge in Hotson found that there was a only a 25 per cent probability that
the claimant would have avoided developing the disability if he had been treated
properly when he first presented at the defendant’s hospital. It followed that the
probability that the defendant’s admitted negligence had caused his disability was
less than 50 per cent, and so applying the usual ‘but for’ test of factual causation his
claim was bound to fail. The claimant tried to get round this by arguing that he
should be entitled to damages for the lost ‘chance’ of recovery, these damages being
25 per cent of what he would have been awarded for the disability itself. However,
when the case reached the House of Lords, their Lordships rejected the loss of a
chance argument, and held that it was up to the claimant to show on the balance of
probabilities that treatment would have made a difference, which he could not do, so
that his claim failed altogether.

The House of Lords revisited the loss of a chance issue in Gregg v Scott. In this case,
the defendant family doctor had negligently failed to diagnose the claimant’s cancer,
with the result that treatment had been delayed for nine months, during which time
the cancer had spread. It was estimated that as a result of this delay the claimant’s
chance of survival had been cut from 42 per cent to 25 per cent, and the claimant
sought damages for this reduced chance of survival. However, by a bare majority (3-
2), the House of Lords dismissed the claim.

When it comes to evaluating the loss of a chance argument, in my opinion it is

important to distinguish between conceptual arguments and arguments of policy.

Beginning then with conceptual arguments, in my respectful opinion, the loss of a

chance argument is subject to at least two important objections at a conceptual level.

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 Donal Nolan | Negligence in the Common Law | Belo Horizonte | 5 October 2017

The first objection is that if the loss of the chance really is the damage that grounds
the action in such cases, then recovery should be allowed whether or not the
threatened injury has actually materialised. However, it seems to be widely accepted
(even by proponents of the loss of a chance argument) that purely speculative claims
should not be allowed before physical injury has occurred, and yet limiting the
application of the loss of a chance doctrine to cases where the injury has materialised
seems to me to amount to an implicit admission that the true damage in these cases is
the physical injury itself and not the chance of avoiding it.

The second conceptual difficulty with the loss of chance argument is that if recovery
is allowed for loss of a chance, then the trade-off (or quid pro quo) must surely be
that the damages awarded to a claimant who can establish on the balance of
probabilities that the defendant caused her injury should be discounted to reflect the
less than even chance that the injury would have happened anyway (suppose a
reverse of the facts of the Hotson case, where the claimant lost a 75 per cent chance
of avoiding the disability if treated properly). And yet such a claimant can surely say
that the gist of her claim is the injury itself, and that she is therefore entitled to full
recovery (as is the case currently).

Setting to one side these conceptual difficulties, there is also the question of whether
loss of a chance recovery is desirable on a policy level.

On this level, there are at least two arguments in favour of loss of a chance recovery.
The first of these arguments is that proportionate recovery for loss of a chance is a
fairer response to evidential uncertainty than an all-or-nothing approach that rests the
outcome entirely on the balance of probabilities. And the other policy argument in
favour of loss of a chance recovery is that it would have beneficial deterrent effects,
an argument that is considered to be particularly powerful in cases where the
patient’s chance of recovery is always going to be less than 50 per cent, and where it
will therefore always be impossible for the patient to show on the balance of
probabilities that the negligence of the doctor caused her injury.

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 Donal Nolan | Negligence in the Common Law | Belo Horizonte | 5 October 2017

Finally, a policy argument that has been made against loss of a chance recovery is
that allowing proportionate recovery would add considerably to the complexity of the
issues to be resolved in cases of this kind, thereby making out-of-court settlements
and trials more difficult and more expensive.

As these and other cases demonstrate, problems of causation are particularly difficult
to resolve within the law of tort in a way that both does justice in the individual case
and also preserves the coherence of the law.

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