Lecture 3 Law and Management

 Consequential Damage

Defences
REVIEW OF ELEMENTS OF
NEGLIGENCE
To succeed in an action for negligence a claimant
must prove:
i) the defendant owed him her a duty of care

ii)the defendant was in breach of that duty of care

iii) damage was suffered which was a direct

consequence of the defendants breach of duty and
the damage is not too remote.
 (iii)Damage
(a) CAUSATION (b) REMOTENESS
Causation is a device to ensure defendant will not be liable for
losses not caused by him/her.
Causation in fact
Was the damage caused by the defendant’s breach of duty?
Causal link between harm cl suffered and defendant’s act
Novus actus interveniens – event intervening breaking the
chain of causation

Remoteness (Causation in Law)

Having established the link between breach and damage –
how much of the defendants loss or harm is the liability of
the defendant?
 1. FACTUAL CAUSATION
‘But for’ test
But for breach of defendant’s duty would harm to the
claimant have occurred?
Barnett v Chelsea & Kensington HM Committee [1969]
Man arrived at hospital complaining of sickness after
drinking tea at work
Doctor refused to examine him and told him to go home
died of arsenic poisoning
Def owed duty of care and had breached duty
However, breach did not cause death; already beyond
help when arrived at hospital.
 CAUSATION and INTERVENING EVENTS
Claimant must show on balance of probabilities that harm
suffered was caused by defendant

NOVUS ACTUS INTERVENIENS – Event breaking the chain of

causation between def and cl –

Lamb v Camden Borough Council [1981]

Council damaged a water pipe which caused damage to cl’s
house. Cl had to move out while repairs were done.
Vandals broke in and caused £30,000 of damage.
Vandals actions constituted an intervening act.
REMOTENESS
Def only liable for reasonably foreseeable consequences ,
direct or indirect, 0f their actions

Reasons for remoteness test

To limit defendant’s liability to reasonable amounts that
can be justified
To limit claimant’s claim to reasonable amounts
To ensure claimant does not profit from the event
To make tort of negligence workable
To enable insurance companies / others responsible for
paying out claims to accurately assess future liabilities.
Remoteness – The Wagon Mound No 1
The Wagon Mound No 1 1961
Def owners of a shipping vessel that spilt oil in
Sydney Harbour – damage resulting:
1. Oil resulted in pollution of the area
2. Fire damage when oil ignited by sparks from
welding operations
Held: ?
Remoteness
 NOTE:
1. It is sufficient if damage is of such a kind that could be foreseen by a
reasonable person – so fact method by which damage is caused is
unusual will not be a bar to a claim (See Hughes v Lord Advocate)
2. The Egg-Shell Skull Principle - D must take his victim as he finds
him
 Smith v Leech Brain [1961] – claimant suffered a burn and
subsequently died of cancer.
Economic circumstances? - claimants impecuniosity
 Lagden v O’Connor [2004]- claimants car damaged by negligence –
unable to afford a hire car , she entered into an expensive credit hire
agreement.
Causation and Remoteness Diagram
CAUSES CONSEQUENCES

Driver error Accident

Bad weather Broken Lost Fall whilst Broken

leg wages on crutches arm

Defective breaks
Read the following cases in the
tort text book
McGhee v National Coal Board [1972]
Wilsher v Essex Health Authority [1988]
Baker v Willoughby [1969
Jobling v Associated Dairies [1982]
Corr v IBC Vehicles [2008]
Defences to a Negligence Action
CONSENT (VOLENTI NON FIT INIURIA)
Voluntary assumption of risk
2 elements
(i)The claimant had full knowledge of nature/extent of
the risk
(ii)The claimant willingly consented to accept the risk
of being injured due to the defendants negligence
Application
Workers Smith v Baker [1891]; ICI v Shatwell [1965]

Sports Simms v Leigh Rugby Football Club [1969]

Wooldridge v Sumner [1963]

Passengers in road accidents

Dann v Hamilton [1939]
The Road Traffic Act s.149 excludes the use of volenti to
allow drivers to avoid liability to passengers
CONTRIBUTORY NEGLIGENCE
 Partial defence
 2 elements
(i) Carelessness on the claimant’s part
(ii) That carelessness caused/contributed to the
claimant’s damage – Owens v Brimmel [1977]
Law Reform (Contributory Negligence) Act
1945
 Consequence of a finding contributory
negligence
CONTRIBUTORY NEGLIGENCE AND REDUCTION
OF DAMAGES
Where both parties are at fault court must
determine extent to which claimants damages must
be reduced.
Froom v Butcher [1975] Seat belt case
25% reduction – claimant suffers injuries that could have
been avoided had seat belt been worn
15% reduction – if injuries less severe
0% reduction - if seat belt makes no difference to extent of
claimants injuries
Crash helmets – same tariff – Capps v Miller [1989]
Ex Turpi Causa
Ex turpi causa non oritur actio – no action arises from a
disgraceful cause. Claimant involved with illegal
enterprise at time of injury
Ashton v Turner 1981
The Cl, who participated in a robbery, sued the
defendant driver for injuries sustained when their
getaway car subsequently crashed.
HELD: ex turpi causa