Damage

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AQA Law Revision on Damages

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Damage

  1. 1. Damage – Causation in fact<br />By Kenisha Browning<br />
  2. 2. General Principles<br />The third aspect that must be proved if<br />there is to be liability in negligence is that<br />the broken duty caused the loss complained<br />of, and that the law recognises that the loss<br />is not too remote from the act. This is often<br />referred to as damage and must be<br />distinguished from damages which is the<br />amount of compensation awarded. <br />
  3. 3. General principles<br />There are two parts to damage: causation and<br />remoteness. Causation is the idea that the<br />defendant must have caused the loss complained<br />of. This is causation in fact. This is the same<br />concept as in criminal law, but is illustrated by<br />examples from the law of negligence. If no loss is<br />caused then there is no claim in negligence.<br />Remoteness is concerned whether the loss is<br />reasonably foreseeable: causation in law. Both<br />must be proved following a broken duty of care if<br />there is to be liability for a claim in negligence. <br />
  4. 4. This can be illustrated by the following diagram:<br />
  5. 5. Causation in fact<br />Causation in fact is the starting point. If there is no<br />causation in fact, there is no point in considering<br />whether there has been causation in law. Causation in<br />fact is determined by the ‘but for’ test. The test is<br />satisfied if it can be said that, but for the defendant’s<br />act or omission the claimant would not have suffered<br />the loss or harm. A different way of stating the test is to<br />ask whether the prohibited result would have occurred if<br />the defendant had not acted. If the prohibited result would<br />still have occurred, even without the defendant’s actions,<br />then something other than the defendant’s actions caused it<br />and factual causation is not present. <br />
  6. 6. Barnett V Chelsea and Kensington hospital management committee( 1968)<br />The facts of the case are that the defendants managed a<br />casualty department at a hospital. One night, three night<br />watchmen arrived at casualty, complaining to a nurse on<br />duty that they had been vomiting for three hours after<br />drinking tea. The nurse reported their complaints by<br />telephone to the duty medical casualty officer, who<br />instructed her to tell the men to go home to bed and call<br />their own doctors if they still felt ill in the morning. The<br />casualty officer did not speak to the men or offer to<br />examine them which would have been normal practice. <br />
  7. 7. The men then left, and, about five hours later,<br />one of them died from poisoning by arsenic. It<br />seems that the arsenic had got into the tea,<br />probably as a result of the mugs or teapot<br />being used for mixing poison by someone else<br />at the workplace. The medical opinion was<br />that the claimant was likely to have died from<br />the poisoning even if he had been admitted to<br />the hospital wards and treated with all care<br />for the five hours before his death. <br />Barnett V Chelsea and Kensington hospital management committee( 1968)<br />
  8. 8. Conclusion of case<br />The hospital owed the deceased a duty of<br />case, the hospital broke the duty of care by<br />not reaching the standard of the reasonably<br />competent hospital; but the hospital had not<br />caused the death of the deceased as their failure<br />toexamine him had not been proved to be the<br />factual cause of his death. It should be noted that<br />the judge stated the hospital had been negligent<br />and only ruled out liability for the death. This<br />means that the hospital could be liable for other<br />losses following from their failure to examine the<br />deceased. <br />
  9. 9. Multiple causes<br />It is not always straightforward to establish<br />that the defendant’s act or omission caused<br />the loss complained of. Sometimes there is<br />more than one possible cause. The courts have<br />started to use a modified rule on the grounds<br />of public policy where there are ‘special<br />circumstances’. This was set out in the case of<br />Fairchild V Glenhaven Funeral Services Ltd<br />(2002). <br />
  10. 10. Fairchild V glenhaven funeral services ltd (2002) <br />This case decided that a worker who had contracted<br />mesothelioma ( a form of cancer caused by exposure to<br />asbestos dust) could sue any of his previous employers’<br />negligence, even though the claimant could not prove<br />which particular exposure had been the cause of the<br />disease. It is understood that just one fibre from<br />asbestos can cause the disease, but not every fibre<br />inhaled will cause the disease. As a result of this<br />uncertainty, the court decided all possible exposures to<br />asbestos could have triggered the disease, and if any<br />and all employers were not to be held to be the cause<br />of the disease, the claimant would not succeed. It was,<br />therefore, unjust on policy grounds to leave this type of<br />claimant without a remedy in law. <br />
  11. 11. Baker v corus (2006)<br />In this case liability was placed on all those responsible for<br />the exposure to asbestos so that liability is shared. This<br />seems to Mean that, in the case of exposure to asbestos at<br />any rate, the normal rule of causation in fact is modified.<br />The difference between Fairchild and Barker is that the<br />defendant in Fairchild had to take full responsibility for<br />compensation and then try to find and claim against other<br />possible sources of asbestos ( which might be difficult<br />where a potentially responsible defendant has gone out of<br />business); in Baker, each defendant sued by the<br />claimant was liable for a given percentage of the award in<br />proportion to the likelihood of having been the source of<br />the asbestos that caused the disease.<br />
  12. 12. Intervening acts <br />As with criminal law, an intervening act can<br />break the chain of causation. The intervening<br />act is known as novus actus interveniens (new<br />intervening act) and can be seen<br />diagrammatically as:<br />
  13. 13. Intervening act<br />The defendant’s act may be said to cause the<br />claimant’s damage, in that it satisfies the ‘but for’ test,<br />but a second factual cause is the real cause of the<br />damage. For example, suppose your head was injured<br />at school by a tile falling off the roof (because the roof<br />was badly maintained) , and your were taken to<br />casualty by a teacher. On the way to casualty, the<br />teacher’s car was hit by a bus that was being driven<br />badly, causing you leg injuries. It could be said that<br />‘but for’ the tile falling off the rood you would not have<br />suffered the leg injury. However, the real cause of the leg<br />injury is the bus, not the tile, The bus is the novus actus<br />interveniens. This means the injury to your head is caused by<br />the tile, the injury to your leg by the bus. <br />
  14. 14. Intervening act<br />The principle that is applies is whether the<br />resulting damage was a foreseeable<br />consequence of the original act. The cases<br />often appear to be decided on the basis of<br />producing a just result as each set of facts are<br />very different. This can be seen in Smith V<br />Littlewoods (1987). <br />
  15. 15. Smith V Littlewoods (1987)<br />In this case the defendants purchased a cinema<br />with a view to demolishing it and replacing it<br />with a supermarket. They closed the cinema<br />and employed contractors to make site<br />investigations and do some preliminary work<br />on foundations, but then left the cinema<br />empty and unattended but locked. Vandals<br />stated a fire in the cinema which seriously<br />damaged two adjoining properties, one of<br />which had to be demolished. <br />
  16. 16. Smith v Littlewoods (1987)<br />The court decided that a reasonable person in the<br />position of the defendants would not foresee that<br />if he took no action to keep the premises fully<br />secure rather than just locked in the short time<br />before the premises were demolished they would b<br />set on fire and that would result in damage to<br />neighbouring properties. The defendants had not<br />known of vandalism in the area or of previous<br />attempts to start fires, so the events which<br />occurred were not reasonably foreseeable by the<br />defendants and therefore the owned no duty to<br />the plaintiffs, the vandalism being a novus actus<br />interveniens. <br />
  17. 17. Corr v ibc vehicles (2006)<br />A more recent example is Corr V IBC Vehicles<br />(2006). In 1996 Mr Corr was employed by the<br />defendant as a maintenance engineer when he<br />suffered severe head injuries in an accident at<br />work caused by malfunctioning machinery.<br />Following lengthy reconstructive surgery, he<br />began to suffer post-traumatic stress disorder<br />causing him to lapse deeper and deeper into<br />depression. This was in contrast to his mental<br />health before the accident, which had no<br />known depression. <br />
  18. 18. Corr v ibc vehicles (2006)<br />In February 2002 he was admitted to hospital after taking a drug<br />overdose; by March he was diagnosed as being at significant risk<br />of suicide; in May he was further diagnosed as being as suffering<br />from severe anxiety and depression and three days later he<br />committed suicide. The court decided that the question was not<br />whether the particular outcome was foreseeable but whether<br />the kind of harm was foreseeable ( this is an example of ‘take<br />your victim as you find him’) and, if it was, whether the<br />eventual harm was, on grounds of policy or fact, too remote.<br />Suicide does not necessarily break the chain of causation, and,<br />as the evidence clearly established that there was no other<br />cause than the depression that drove Mr Corr to suicide, there<br />was no break in the chain of causation, and the defendant had<br />been negligent. <br />

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