Causation of Damage and Defences in Negligence

This set of flashcards covers the key concepts and terms related to the causation of damage and defences in the tort of negligence.

Articulate the three indispensable elements a claimant must successfully demonstrate to establish liability in the tort of negligence, providing a brief explanation for each.

1. Duty of Care: A legal obligation owed by the defendant to the claimant to avoid causing foreseeable harm.

2. Breach of Duty: A failure by the defendant to meet the requisite standard of care expected (e.g., that of a reasonable person).

3. Damage: Harm, loss, or injury suffered by the claimant, which was caused by the breach and is not too remote.

Critically evaluate the 'Caparo test' for establishing a novel duty of care, outlining its three-stage inquiry and discussing its criticisms or limitations in modern tort law.

The 'Caparo test' (from Caparo Industries plc v Dickman) requires:

1. Foreseeability of Harm: It must be reasonably foreseeable that the defendant's actions would cause harm to the claimant.
2. Proximity: There must be a sufficiently close relationship between the parties.
3. Fair, Just, and Reasonable: It must be fair, just, and reasonable to impose a duty of care.

Criticisms/Limitations: The test has been criticized for being policy-driven and lacking analytical rigor, offering insufficient guidance in complex cases, and often being applied incrementally rather than as a strict test for novel situations.

Analyze the objective 'reasonable person' standard applied to ascertain a 'breach of duty,' and elaborate on how this standard is judicially modulated or adapted for defendants possessing special skills (e.g., professionals) or characteristics (e.g., children).

The 'reasonable person' standard is objective, assessing what a reasonable person would have done in the defendant's circumstances. It does not account for the defendant's individual shortcomings.

Modulations/Adaptations:

• Professionals: Judged by the standard of a reasonably competent body of individuals professing that skill (Bolam principle), provided their practice is accepted as proper by a responsible body of medical men skilled in that particular art (Bolitho modification).

• Children: Judged by the standard of a reasonably careful child of the same age, not an adult.

• Special Skill/Knowledge: If a defendant professes a special skill (e.g., driving a car), they are judged by the standard of a reasonably competent person possessing that skill, regardless of their actual experience.

• Emergencies: The standard may be lowered to account for actions taken in an emergency, where less time for reflection is available.

Beyond merely stating the 'but for' test, discuss its inherent deficiencies in complex factual scenarios, such as multiple sufficient causes, and outline alternative or supplementary approaches courts may adopt to establish factual causation.

The 'but for' test asks: 'But for the defendant's breach, would the harm have occurred?'

Deficiencies:

• Multiple Sufficient Causes: Fails when two or more independent negligent acts could each have caused the harm, where neither alone satisfies the 'but for' test (e.g., two fires merging).

• Loss of a Chance: Struggle in cases where the breach reduced the claimant's chance of a better outcome, but it cannot be proven on a balance of probabilities that the breach actually caused the adverse outcome.

Alternative/Supplementary Approaches:

• Material Contribution to Risk/Harm: Where 'but for' fails, courts may accept that a defendant's breach materially contributed to the claimant's harm or risk of harm (e.g., Fairchild v Glenhaven Funeral Services for mesothelioma cases).

• Inference of Causation: In some cases (e.g., res ipsa loquitur), causation may be inferred from the circumstances if the incident would not normally occur without negligence and the defendant was in control of the situation.

• Cumulative Causes: Where multiple minor causes cumulatively lead to harm, 'but for' may be met if each contribution was necessary for the full extent of the harm.

Explain the fundamental difference between 'causation in fact' and 'remoteness of damage' in a negligence claim.

1. Causation in fact: Determines if there is a factual link between the defendant's breach and the claimant's harm, typically established using the 'but for' test (i.e., would the harm have occurred but for the defendant's breach?).
2. Remoteness of damage: Determines whether the type of harm suffered by the claimant was a foreseeable consequence of the defendant's breach. Even if causation in fact is proven, liability may be denied if the damage is considered too remote.

Distinguish between a mere 'intervening act' and a 'novus actus interveniens' sufficient to sever the 'chain of causation,' providing examples of scenarios involving third parties, the claimant, or natural events.

An intervening act is an event or action occurring after the defendant's breach.
A 'novus actus interveniens' (new intervening act) is a specific type of intervening act that is deemed so unforeseeable or independent of the defendant's original negligence that it breaks the 'chain of causation,' thereby relieving the defendant of liability for the subsequent damage.

Examples:

• Third Parties: A third party's highly reckless or intentionally wrongful act that was not reasonably foreseeable by the defendant (e.g., a negligent doctor's treatment following an injury caused by the defendant, vs. a completely arbitrary criminal act).
• Claimant's Actions: The claimant's own entirely unreasonable or unforeseeable actions subsequent to the defendant's breach (e.g., deliberate self-harm following a minor injury, rather than reasonably seeking medical advice).
• Natural Events: A wholly unforeseeable natural event that independently causes further harm, distinct from anything the defendant's negligence set in motion (e.g., an earthquake destroying a damaged building already weakened by the defendant's negligent actions, if the earthquake was truly unexpected in that region).

Elaborate on the 'remoteness of damage' doctrine, specifically discussing the 'Wagon Mound' test and its requirement for foreseeability of the type of damage, as opposed to its extent or manner of occurrence.

The 'remoteness of damage' doctrine limits a defendant's liability to damage that is not too far removed from their negligent act. The leading test for remoteness is derived from Overseas Tankship (UK) Ltd v Morts Dock & Engineering Co Ltd (The Wagon Mound No 1).

The Wagon Mound Test: A defendant is only liable for damage that is of a foreseeable type. It is not necessary that the extent of the damage or the precise manner in which it occurred be foreseeable, only the general kind or type of harm. For example, if oil spillage foreseeably causes fire damage, the defendant is liable for the fire, even if the specific chain of events leading to the fire was unusual, but not for unforeseeable types of damage like obscure allergic reactions to the oil.

Key Principle: Liability is limited to damage of a type that a reasonable person would have foreseen as a real risk of their negligent act.

Under what precise conditions can the common law defence of 'volenti non fit injuria' successfully be pleaded, and how does it fundamentally differ from merely acknowledging a risk?

The defence of volenti non fit injuria ('to a willing person, injury is not done') requires claimant's:

1. Full Knowledge of the Risk: The claimant must have actual knowledge of the precise nature and extent of the risk involved.
2. Voluntary Agreement to the Risk: The claimant must have freely and voluntarily agreed to assume that specific risk.

Distinction from Acknowledging Risk: Merely acknowledging a risk ('I knew it was dangerous') is insufficient. Volenti requires a conscious and uncoerced choice to waive one's legal rights and accept the risk of injury, implying an agreement to absolve the defendant of liability. It is a complete defence, entirely barring the claim, unlike contributory negligence, which is a partial defence.

Discuss the statutory role and application of 'contributory negligence' as a partial defence in tort, explaining how courts apportion liability and reduce damages based on the claimant's culpability.

Contributory negligence is a partial defence governed by the Law Reform (Contributory Negligence) Act 1945. It applies when the claimant's own negligence contributed to their damage. The defendant must prove:

1. Claimant acted negligently: The claimant failed to take reasonable care for their own safety.
2. Claimant's negligence contributed to the damage: There was a causal link between the claimant's negligence and the damage suffered.

Apportionment: If successful, the court has the power to reduce the claimant's damages to such extent as the court thinks just and equitable, having regard to the claimant's share in the responsibility for the damage. It is a proportionate reduction, not an absolute bar to recovery (e.g., if the claimant is found 25% responsible, their damages are reduced by 25%).

Articulate the 'egg-shell skull rule' (thin skull rule) and explain its significance as an exception to the principle of foreseeability regarding the extent of damage in personal injury claims.

The 'egg-shell skull rule' (or 'thin skull rule') dictates that a defendant must take their victim as they find them. This means that if the defendant's negligence causes an injury, they are liable for the full extent of that injury, even if the claimant's pre-existing, unusual susceptibility or vulnerability (e.g., an 'egg-shell skull' or latent medical condition) made the injury far more severe than it would have been for an ordinary person.

Significance: It is an exception to the foreseeability rule regarding the extent of damage. While the type of damage must be foreseeable (Wagon Mound), the defendant cannot argue that the extent of the damage was unforeseeable due to the claimant's particular physical or psychological fragility. So long as some physical harm of the foreseeable type was caused, the defendant is liable for all the resulting harm, however unexpectedly severe.

Define 'damage' in the context of a negligence claim, differentiating between legally actionable damage and mere factual loss, and briefly classify major categories of compensable harm.

In negligence, 'damage' refers to the harm, loss, or injury suffered by the claimant as a consequence of the defendant's breach that is legally actionable. It is not synonymous with mere factual loss; some losses, even if caused by negligence, are not recoverable in law (e.g., pure economic loss without associated physical damage, in many jurisdictions).

Major Categories of Compensable Harm:

• Physical Injury: Direct bodily harm (e.g., broken bones, internal injuries).
• Property Damage: Damage to or destruction of the claimant's tangible property (e.g., car, house).
• Consequential Economic Loss: Financial losses directly flowing from physical injury or property damage (e.g., loss of earnings due to injury, cost of repairing damaged property).
• Psychiatric Harm (Nervous Shock): Medically recognised mental injury, subject to specific control mechanisms for primary and secondary victims.
• Pure Economic Loss: Financial loss not consequent upon physical injury or property damage (generally not recoverable in negligence, with specific exceptions, e.g., negligent misstatement).
• Loss of Amenity: Compensation for loss of enjoyment of life due to injury.