Intro to Tort notes

Seite 1

What are ‘Torts’?

A tort is a breach of a duty (other than to pay money)

Imposed by law

Primary remedy is one of compensatory damages

With the main focus, as to put you back in the position you were before the breach/accident – BACKWARDS – recover a loss

The next best remedy – when you cannot fully be put back into the situation you were in before

Always involves two private parties (crime involves the state and another party)

A breach can be characterised under both Tort and Crime as well

The interests protected by Tort: (in order of importance)

Physical integrity

Compensation

Liberty

Reputation (e.g. defamation)

Property (e.g. nuisance)

(some) economic interests

TORT LAW vs CRIMINAL LAW

No use of juries in Tort, unlike Criminal Law

No need for such a procedural safeguard due to the lack of severity

Standard of proof is a lot less than in criminal law

You have to persuade the judge in a case of balance of probability (50% likely or more) as opposed to guilty beyond reasonable doubt

You are liable of tort, but guilty of a crime

We aim to compensate in cases of Tort as opposed to punishment, like in criminal cases.

TORT LAW vs CONTRACT LAW

Obligations are imposed in TL, assumed in CL

Claimants in TL seek to be put back in the place there would have been in, whereas in CL, claimants seek to be better off than they were.

DUTY OF CARE IN NEGLIGENCE

“… a breach of a legal duty to take care which results in damage to the claimant”

Assumed obligations in Tort, not voluntary ones

Most negligent situations are between two strangers

Foreseeable but unforeseen events

In order to claim Negligence in Tort, you must prove all the following:

Actionable Damage

Does the law recognise it as something you can take action against?

Duty of Care is owned by the defendant to the claimant

Control Mechanism

WHY?

Negligence is not an intentional tort

No one knows if we are going to be a claimant or a defendant in a negligence action in the future

This limits liabilty

The duty of care picks out one’s sphere of influence and tries to reduce this- i.e. who you owe it to

Picks out the defendant’s “sphere of influence”

Who do you owe a duty of care to?

Identifies those who ought to be in our contemplation when we act and intervene in the world

Winterbottom v Wright [1842] 10 M. & W.109

Known as PRIVY OF CONRACT FALLACY

Breach of Duty (separate to duty of care and must be treated as so)

Causation

The negligent act must cause harm to someone you owe a duty of care to

If a negligent act occurred but no one is harmed, then no one can be prosecuted

Remoteness

If the claimant’s action seemed too far from the breach of duty – no liability

If it wasn’t a foreseeable type of damage then the defendant wasn’t liable

When identifying the problems in a case, focus on the type of interest which the claimant is trying to use the tort to protect (physical safety, the safety of property, financial well-being, or psychological well-being

DONOGHUE v STEVENSON [1932] A.C. 562 – NEIGHBOUR PRINCIPLE

Makes is clear that foreseeability of harm alone should not be sufficient to establish the existence of a duty of care.

LORD ATKIN’s general principle for determining the existence of a Duty of Care:

“… in English Law there must be, and is, some general conception of relations giving rise to a duty of care, of which the particular cases found in the books are but instances. The liability for negligence… is no doubt based upon a general public sentiment of moral wrongdoing for which the offender must pay. But acts or omissions which any moral code would censure cannot in a practical world be treated so as to give a right to every person injured by the, to demand relief. In this way rules of law arise which limit the range of complaints and the extent of their remedy. The rule that you are to love your neighbour becomes, in law, you must not injure your neighbour; and the lawyers question is who is my neighbour? Receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who then, in law, is my neighbour? The answer seems to be – persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.”

Beginning of a legal “sphere of influence”

However, it contained too little by which, on the basis of logic, the limits of tort could ever be confined.

The courts were also afraid of allowing ‘crushing liability’.

HOWEVER, there are many drawbacks to Lord Atkins rule, especially in modern times:

The law treats acts very different from omissions, so cannot be categorised as closely as he has

Besides from identifying the defendant’s ‘neighbour’, we must also identify the TYPE OF LOSS which the ‘neighbour’ is likely to suffer (i.e. the type of interest which the claimant is seeking to use the law to protect)

Vagueness of the notion of ‘proximity’

HOME OFFICE v DORSET YACHT [1970] A.C. 1004

Imposed a duty of care on the defendant to prevent damage being caused by the actions of others

Liability for the acts of third parties has proved to be a difficult are for the courts

ANNS v MERTON LBC [1978] A.C. 728 – LORD WILBERFORCE’s TWO-STAGE TEST(ABANDONED):

STAGE ONE:

Is there, between the claimant and defendant, a sufficient relationship of ‘proximity or neighbourhood’ such that the defendant can reasonably foresee that carelessness on his/her part would be likely to cause damage to the claimant If the answer to this question is ‘yes’, then a prima facie duty of care arises.

STAGE TWO:

Are there any considerations which should nevertheless lead the court to deny a duty of care, or to limit its scope, in these particular circumstances?

Incremental Approach

The accepted means of finding a duty of care was suggest by Brennan J, an Australian Judge, in Sutherland Shire Council v Heyman (1985) 60 A.L.R. 1 at 43, that is to say, novel categories of negligence should be developed incrementally and by analogy with established categories, rather than under a general principle which permits a massive extension of the prima facie duty of care, restrained only by indefinable policy considerations – develops into Caparo Criteria.

THE MODERN APPROACH

Leading case is now Caparo v Dickman [1990] 2 A.C. 605.

HoL concluded that to establish a duty of care, either:

The claimant must point to a direct precedent, or to a closely analogous precedent, where a duty of care has been imposed

In cases where no relevant precedent exists, the court should apply three criteria (which their Lordships identified) to determine whether there is a duty of care.

THE CAPARO CRITERIA (3-FOLD)

According to the dicta in Caparo, in novel factual situations, all of the following three criteria must be satisfied before a court should be willing to impose a duty of care:

The damage must be foreseeable

Bourhill v Young [1943]

There must be a sufficiently proximate relationship between the parties

It must be “fair, just and reasonable” for the court to impose a duty of care in the light of policy considerations with which the court is concerned.

The best way to determine a duty of care is to find either a direct precedent or very close case, if not then you use the 3-Fold Caparo Test.

The foreseeable claimant:

The claimant must be “closely and directly affected” by the defendant’s conduct.

Bourhill v Young [1943] A.C. 92.

Palsgraf v Long Island Railroad 248 N.Y> 339 (1928)

PROXIMITY

Refers to the closeness of the relationship between the defendant and the claimant,

Degree of closeness differs according to the type of damage for which the claimant is seeking redress.

Factors relevant to the imposition of a duty of care:

Whether the damage in question is caused by a positive act (misfeasance), or by an omission (non-feasance)

The type of defendant being sued.

Congenital Disabilities (Civil Liability) Act 1976 s.1

If a child is born disabled as a result of an injury to either parent which affects that parent’s ability to have a normal child during birth, or which affects the mother during pregnancy, or affects the mother or child during birth, the child may sue for his or her resulting disability.

The long rule of the Conservative party saw a gradual change away from a philosophy of welfarism and state control towards a philosophy of individualism and contraction of state responsibility. Economic efficiency was brought into tighter focus than ever before

This is a likely reason as to why the courts have been influenced, resulting in their reluctance to make people responsible for certain typed of loss when, under a contract, the risk of that loss (and reward for taking that risk) has been allocated to someone else.

LIABILITY OF PUBLIC AUTHORITIES

Any liability of public bodies in the common law of negligence arises in the same way as it does for private individuals. Public bodies will, therefore, be subject to the same incremental, analogical approach derived from Caparo, Michael and Robinson, as private individuals. The fact that such bodies have a public function to perform and are authorised in this by statute is never a standalone reason for imposing a duty of care at common law.

PUBLIC BODIES AS A WHOLE AND DUTIES OF CARE

Public bodies, when performing a duty, if they make a decision, will not consider a claim against them justiciable if it is because of a policy.

E.g. If an ambulance driver fails to pick up a phone due to carelessness, a claim can be brought against him on the grounds of negligence

However, if it is due to policy considerations where not enough funding has been given to do so, then the claim will be unsuccessful.

POLICE AND DUTY OF CARE

‘Operational Negligence’

Rigby v Chief Constable of Northamptonshire [1985] 1 W.L.R. 1242

Michael v Chief Constable of South Wales Police [2015] UKSC 2

Robinson v Chief Constable of West Yorkshire [2018] UKSC

Hill V Chief Constable of South Yorkshire Police [1989] 1 AC 53

The ‘core’ principle

absent exceptional circumstances, the police will not owe individual members of the public a common law duty of care in undertaking their operational duties of investigating, detecting, suppressing and prosecuting crime.

NHS -Danrley v Croydon NHS

The Principle of Omissions

FIRE BRIGANDE AND DUTY OF CARE

Stuart Smith LJ:

“… the fire brigade are not under a common law duty to answer the call for help, and are not under a duty to take care to do so. If therefore, they fail to turn up, or fail to turn up in time, because they have carelessly misunderstood the message, get lost on the way or run into a tree, they are not liable.”

John Munroe and Church of Jesus Christ of Latter Day Saints

Capital & Counties Plc v Hampshire CC [1997] Q.B. 1004

AMBULANCE SERVICE AND DUTY OF CARE

A duty of care is only established when the ambulance service picks up a call.

Kent v Griffiths [2001] Q.B. 36.

Court of Appeal held that the service was to be regarded as part of the health service rather than a ‘rescue’ service (police and fire brigade)

What are ‘legally significant features’

How analogous are the facts?

Is there a similar level of foreseeability?

Is there a similar level of proximity?

Are there similar issues of fairness, justice and reasonableness?

ACTS v OMISSIONS | MISFEASANCE v NONFEASANCE

No general liability in negligence for omissions

No duty actively to intervene in other’s lives

Stovin v Wise

When will omissions give rise to liability?

Pre-tort relationship

Dorset Yacht Co Ltd v Home Office [1970] AC 1004

Reeves v Commissioner of Metropolitan Police [2000] 1 AC 360

Creation of Risk

Haynes v Harwood [1935] 1 KB 146

Goldman v Hargrave [1967] 1 AC 645

Human rights act 1998 – a complicating factor

An extra complicating factor in the context of claims made against public bodies is the existence of the Human Rights Act 1998 (hereafter HRA), and the corresponding ability of claimants to take their cases to the European Court of Human Rights (hereafter ECtHR) if they feel that any of their rights under the European Convention on Human Rights (hereafter ECHR) has been violated. More recently, however, the trend seems to be to allow the two avenues (claims under the HRA and claims in common law negligence) to develop independently of one another.

Human Rights and Tort Law

Osman v UK [1999] 1 FLR 193

Z v UK [2001] 2 FLR 612

Van Colle v Chief Constable of Hertfordshire and Smith v Chief Constable of Sussex [2008] UKHL 50

Rabone v Pennine Care NHS Trust [2012] UKSC 2

BREACH OF DUTY

Establish if a person failed to take reasonable care to avoid foreseeable harm

Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or not doing something which a prudent and reasonable man would not do…

Blyth v Birmingham Waterworks Co (1856) 11 Ex. 781 at 784

Relevant factors to take into consideration in applying the “reasonable man” test:

Probability/Foreseeability of Harm

If the particular harm the claimant suffers is not foreseeable, the defendant will not be liable.

How probable is the harm – Probable? / Likely? /Conceivable?

Bolton v Stone [1951] SC 850

Hilder v associated Portland cement

Paris v Stepney BC

Magnitude of the Risk

The ‘reasonable person’ does not take precautions against risks that are very small. Assessing the ‘magnitude’ of risk involves consideration of two factors:

The likelihood of harm (Bolton v Stone [1951] A.C. 850)

Seriousness of the consequences

Burden of Precautions

If the burden of taking steps to eliminate a risk is far greater than the benefit obtained by its elimination, then failure to take those steps will not generally amount to negligence.

High burden

Bolton v Stone [1951] A.C. 850

Precaution out of proportion to risk

Latimer v AEC Ltd [1953] A.C. 643.

Low Risk, Low Burden, Serious Damage

Wagon Mound (No2) [1967] 1 A.C. 617

The defendant’s financial circumstances

Where the defendant can be said to have a choice about whether or not to engage in the activity which creates the risk, he or she cannot argue lack of resources as a reason for failing to meet the standard of care.

PQ v Australian Red Cross Society [1922] 1 V.R 19.

Hucks v Cole 1993

Utility of the defendant’s conduct

The greater the social utility of the defendant’s conduct, the less likely it is that the defendant will be held negligent.

Daborn v Bath Tramways Motor Co Ltd [1946] 2 All E.R 333

THE COMPENSATION ACT 2006 and SOCIAL ACTION, RESPONSIBILTY AND HEROISM ACT 2015: The deterrent effect of potential liability

Common Practice

What people in your employment/field of work would do.

Failure to conform to common practice is strong evidence of negligence, but it is not conclusive.

Brown v Rolls Royce Ltd [1960] 1 W.L.R. 220

Also think about: ‘Neglect of duty does not cease by repetition to be neglect of duty’ Bank of Montreal v Dominion Gresham [1930] A.C. 659 at 666

Objective nature of the ‘reasonable man’ test:

Glasgow Corp v Muir [1943] 2 A.C 448

Nettleship v Weston [1971] 2 Q.B 691

The standard that the Courts held in Nettleship is one which is above average – not realistic (hypothetical one)

However, in Mansfield – stroke whilst driving

Roberts v Ramsbottom 1980

Statutes – Desirable Activity

The Compensation Act 2006

COMPENSATION ACT 2006 s.1 – designed to promote the idea that people and organisers who wish to undertake socially worthwhile activities should not be deterred from doing so by an unrealistic fear of negligence liability.

Those who undertook socially advantageous activities would be held at a lower standard of care

Tomlinson v Congleton BC [2003] UKHL 47

A court considering a claim in negligence or breach of statutory duty may, in determining whether the defendant should have taken particular steps to meet a standard of care (whether taking precautions against a risk or otherwise), have regard to whether a requirement to take those steps might

Prevent a desirable activity from being undertaken at all, to a particular extent or in a particular way, or

Discourage persons from undertaking functions in connection with a desirable activity

The Social Action, Responsibility and Heroism Act 2015

An Act to make provision as to matters to which a court must have regard in determining a claim in negligence or breach of statutory duty

(Lord Faulks) introducing the Bill’s second reading in the Lords put it: ‘Its core aim is to provide reassurance to people who act in socially beneficial ways, behave in a generally responsible manner, or act selflessly to protect someone in danger by ensuring that the courts recognise their actions and always take that context into account in the event that something goes wrong and they are sued”

Also aimed to dampen the ‘compensation culture’

The act applies when a court, in considering a claim that a person was negligent or in breach of statutory duty, is determining the steps that the person was required to take to meet a standard of care.

Sections 2-4 highlight that the court should consider:

Whether the alleged negligence or breach of statutory duty occurred when the person was acting for the benefit of society or any of its members

Whether the person, in carrying out the activity giving rise to the claim, demonstrated a ‘predominantly responsible approach’ towards protecting the safety or other interests of others.

Whether the alleged negligence or breach of statutory duty occurred when the person was acting heroically, by intervening in an emergency to assist an individual in danger.

The two acts provided re-assurance to people who undertake such activities, as opposed to actively changing the law as the courts were already taking such factors into consideration when deciding on cases.

THE ’LEARNED HAND’ TEST

B < P x L = Liability

B > P x L = No Liability

Bolton v Stone

The Wagon Mound (No.2)

SPECIAL STANDARDS OF CARE

Children

Conduct of a child is judged by reference to the standard of conduct that can be expected of a reasonable child of the defendant’s own age.

McHale v Watson (1966) 115 C.L.R 119 {Australian}

Mullin v Richards (1966) 115 C.L.R 119 at 213

Defendants acting in an emergency

Where the defendant is forced to act quickly ‘in the heat of the moment’, the standard of care is relaxed to take account of the exigencies of the situation.

Jones v Boyce (1816) 1 Stark 493; 171 E.R. 540

Ng Chun Pui v Lee Chuen Tat (1988) R.T.R. 298

Participants in sport

It is clear that those engaged in sport only owe a duty of care both to other competitors in the sporting event and the spectators. (courts will take into account ‘heat of the moment’ situations as well)

Wooldridge v Summer [1963] 2 Q.B. 43

Wilks v Cheltenham Cycle Club [1971] 1 W.L.R 668

The mere fact that a competitor has broken the rules of a game will not, of itself, provide a conclusive evidence of negligence

Caldwell v Maguire [2001] EWCA Civ 1054

Where referees put competitors at risk by failing to enforce the rule of the game, they may be liable where this causes injury to the competitors.

Vowles v Evans [2003] 1 W.L.R 1607

PROFESSIONAL STANDARD AND TEST

Where the defendant purports to have a special skill, the defendant’s conduct is judged according to the standard of a reasonable person having the skill the defendant claims to possess. It is not judged by the standard of the reasonable person.

The law will not regard a professional defendant as having fallen below the required standard of care if it is shown that the defendant’s conduct is regarded as proper by one responsible body of professional opinion. This is the case even if some other members of the defendant’s profession may think the conduct is negligent.

Bolam v Friern Hospital Management Committee [1957] 1 W.L.R. 582

Key case in looking at professional standards in duty of care

Bolitho v City and Hackney Health Authority [1988] A.C. 232

Lord Browne-Wilkinson: “These decisions demonstrate that in cases of diagnosis and treatment there are cases where, despite a body of professional opinion sanctioning the defendant's conduct, the defendant can properly be held liable for negligence (I am not here considering questions of disclosure of risk). In my judgment that is because, in some cases, it cannot be demonstrated to the judge's satisfaction that the body of opinion relied upon is reasonable or responsible. In the vast majority of cases the fact that distinguished experts in the field are of a particular opinion will demonstrate the reasonableness of that opinion. In particular, where there are questions of assessment of the relative risks and benefits of adopting a particular medical practice, a reasonable view necessarily presupposes that the relative risks and benefits have been weighed by the experts in forming their opinions. But if, in a rare case, it can be demonstrated that the professional opinion is not capable of withstanding logical analysis, the judge is entitled to hold that the body of opinion is not reasonable or responsible” at 243.

Montgomery v Lanarkshire Health Board [2015] UKSC 11; [2015] A.C. 1430

clinical decision about possible investigatory or treatment options; and

advising/discussing with the patient any recommended treatment and possible alternatives, and the risks of injury which may be involved.

Following the HRA 1988, the issues concerning personal autonomy became more important.

“The doctor’s advisory role cannot be regarded as solely an exercise of medical skill without leaving out of account the patient’s entitlement to decide on the risks to her health which she is willing to run (a decision which may be influenced by non-medical considerations). Responsibility for determining the nature and extent of a person’s rights rests with the courts, NOT with the medical professions.”

What does this mean in practice? The doctor is under a duty to take reasonable care to make sure the patient is aware of any material risks of a recommended treatment, and of any reasonable alternative treatment.

What is a material risk? In the circumstances, would a reasonable person in the patient’s position be likely to attach significance to that risk / should the doctor reasonably know that this patient would be likely to attach significance to it – increases the role of personal autonomy and the importance given to it.

MONTGOMERY applied:

Gallardo v Imperial College Healthcare NHS Trust [2017] EWHC 3147 (QB):

COURT

The fundamental point of principle, decided in Montgomery, is that the patient has the right to decide what, if any treatment, to consent to. In the exercise of this right, the patient must be informed of the material risks inherent in the proposed treatment and what reasonable alternative treatment options are available, if any. It is only in exceptional circumstances that a doctor is entitled to withhold information because disclosure would be seriously detrimental to the patient's wellbeing.

By analogy, the same principle applies to the post-treatment discussion. It is the patient's right to be informed of the outcome of the treatment, the prognosis, and what the follow-up care and treatment options are. Information should only be withheld in exceptional circumstances and for clear and persuasive therapeutic reasons. [69]-[70].

On my analysis of the available evidence, such a discussion did not take place. There were two essential things which should have been made clear to the Claimant. First, that he had had a malignant tumor removed and that there was a risk of recurrence, and, secondly, that he therefore needed to have regular check-ups and screening by CT scan. It would have been a painful and difficult discussion as it would have involved telling the Claimant that his life expectancy was likely to be substantially reduced. Plainly, though, it is a discussion which must be held = BREACH.

CAUSATION & REMOTENESS

Laws of causation links the breach of duty to the harm caused.

FACTUAL CAUSATION

Pragmatic Approach

Law cannot take a philosophical approach to causation as nobody could ever be said to have caused anything.

Defendants could always fix responsibility on a person or event further back in the ‘chain of causation’

When using this (aka. ‘ma n in the street’) approach, in most cases the issue is straightforward as it is revealed that only one activity or person is the cause of the claimant’s loss.

HOWEVER, in a small minority of cases, the law must choose between two or more competing causes of the claimant’s losses.

‘BUT FOR’ Test – Legal Causation

“Can it be said that ‘but for’ the defendant’s conduct, the claimant’s loss would not have occurred?” – on the balance of probabilities

“YES” – defendant is not the cause of the claimant’s loss

Barnett v Chelsea and Kensington Hospital Management committee [1969] 1 QB 428

The test is not only applied when there are existing causes (Barnett) but also when there are ‘hypothetical causes’ which may have causes the loss

McWilliams v Sir William Arrol Ltd [1962] 1 All E.R. 623

Bolitho V City and Hackney Health Authority [1998] A.C 232

PROBLEMS

Problems arise when multiple causes are identified

When these causes contribute to the same loss you cannot separate them into which caused the loss as they all did, unjust to pinpoint on one.

Hence the courts would most probably treat the case as involving “cumulative causes”, making all the defendants jointly liable for the full extent of the damage (or apportion liability equally)

HOW DO COURTS APPROACH CASES WITH MULTIPLE CAUSES?

CONCURRENT CAUSES

Means that the causes in question occur more or less simultaneously, as opposed to one after another.

Concurrent cause cases can be divided into two groups

Indeterminate Cause

Cumulative Cause

Indeterminate Causes: More than one defendant but only one ‘operative cause’ of the claimant’s loss – unclear which of the defendant’s acts produced this cause

Cook v Lewis [19510 S.C.R 830 (Canadian Case)

Summers v Tice 119 P.2d1 (1948) (American Case)

Sindell v Abbott Laboratories 607 P.2d 924 (1980)

These solutions (deciding which of two human actions produced the claimant’s loss) are NOT favoured by the English courts in cases where the fault of one D is competing with one or more “innocent” or “natural” explanations for the claimant’s loss.

Wilsher v Essex AHA [1988] A.C 1074

Hotson v East Berkshire AHA [1987} A.C 750

Gregg v Scott [2005] UKHL 2

Cumulative Causes: The usual approach of the courts is to say that, because either negligent act would have produced the same damage, each defendant is liable for the whole of the damage

The Koursk [1924] p.140

In this case above, the assumption that was made is that the act of one defendant alone would have given rise to the whole of the damage.

There is another type of cumulative cause case:

When the “first” defendant commits a tortious act, and then (very shortly afterwards), before the full impact of the act ends, a second defendant commits an act which combines with the first, producing a single result that might not have occurred without the operation the operation of the second act.

In such cases both the defendants may be liable even though it cannot be said that the first defendant’s negligence alone would have caused the end result.

Fitzgerald v Lane [1987] Q.B. 781 CA

CONSECUTIVE OR SUCCESSIVE CAUSES

Consecutive Cases:

Key issue is whether, where one act succeeds another, there are circumstances where the effect of the first act can be said to have become ‘overtaken’ or ‘obliterated’ by the effect of the second act, in such a way that the first act ceases to be the cause of the claimant’s act.

“but for” test cannot find who is to be liable in these cases

HOWEVER, must be distinguished from cases where the effect from the first wrongful act is continuing, in spite of the effect from the second

Performance Cars v Abraham [1962] 1 Q.B. 33

Baker v Willoughby [1969] – EXCEPTIONAL CASE

Policy dictates that a first tortfeasor should remain liable for the continuing effects of his or her tort, even where a second tort produced the same or worse effects

Lord Edmund-Davies & Lord Wilberforce thought that the decision in Baker could not be properly analyzed in terms of legal principle and that the case had been decided on policy grounds

Decision in Baker is to be contrasted with that in Jobling v Associate Dairies Ltd [1982] A.C. 794

The decision reached in Jobling is preferred in modern law as seen in Gray v Thames Trains Ltd [2009] UKHL 33

PROOF OF CAUSATION

How do courts approach the question of requiring the claimant to prove that the defendant’s breach is the cause of his or her loss in cases where the D’s conduct competes with other possible explanations of the C’s loss

Depends on the type of case and his heavily influenced by policy considerations

The “all or nothing’” approach;

The “material contribution to injury” approach;

The “vindication of rights” approach; and

The “material increase in risk” approach

The “all or nothing’” approach;

Applied in most cases

Takes the starting point that the claimant, who bears the burden of proof in a civil trial, must discharge that burden by meeting the normal civil standard of proof

THUS, the claimant must show, on a balance of probabilities, it was the defendant’s breach that caused the loss (as opposed to any other event)

The “material contribution to injury” approach

Less contentious

Where there is both innocent exposure to the agent which is not due to negligence and guilty exposure which is due to the D’s negligence

Defendant is held liable for having part-caused the claimant’s injury.

Has to be applied where the injury cannot be divided between separate factors because those factors operate cumulatively and interdependently.

You cannot hold individuals to have caused a specific part of the injury, but instead you hold them to have part-caused the injury as a whole.

Bonnington Castings V Wardlaw [1965] AC 613

Lord Reid on what is to be considered as “material”

A contribution which comes with the exception de minimis no curat lex is not material, but I think that any contribution which does not fall within that exception must be material. I do not see how there can be something too large to come within the de minimis principle but yet too small to be material.

The “vindication of rights” approach

Chester v Afshar [2004] UKHL 41

The “material increase in risk” approach aka THE EXCEPTIONAL CAUSAL PRINCIPLE FROM MCGHEE/FAIRCHILD – Fairchild Principle

Completely different (a lot more contentious) and very controversial and EXCEPTIONAL

Analysis is applied where:

There are multiple potential sources of the risk which has eventuated in the claimant’s damage

There is a single agent responsible for that risk

There exists a ‘rock of uncertainty’ such that causation is impossible to prove in principle.

McGhee v National Coal Board [1972] 3 All ER 1008

Fairchild v Glenhaven Funeral Services [2002] UKHL 22

Barker v Corus [2006] UKHL 20

Two Questions:

Will the Fairchild principle apply where the tortious source of the asbestos is not the only one? - YES

If yes, will liability by joint and several or apportioned between causes? – APPORTIONED

Apportioned Liability – better for defendants.

If there are multiple defendants who have contributed to a tortious breach, the claimant can choose who to pursue compensation from

Reduces the risk on the claimant in that they can choose who has the most money

Cases to which the EXCEPTIONAL Fairchild principle does not apply:

In cases where evidence can be produced to show that particular defendants are responsible for making distinct & quantifiable causal contributions to the claimant’s loss.

In such cases the courts will apportion liability to each defendant in accordance with his or her degree of fault.

Wilsher v Essex AHA [1988] AC 1074

SECTION 3 COMPENSATION ACT 2006-

Parliament reversed (partial) the House of Lords on the apportionment point but ONLY in relation to claims involving both asbestos and mesothelioma

This reversal provides where a D, through negligence or breach of statutory duty, has exposed a claimant to asbestos, and that claimant contracts mesothelioma, the D is liable ‘for the whole of the damage caused to the victim by the disease”

Liability is declared to exist ‘jointly and severally’ with any other persons responsible for asbestos exposure.

The apportionment approach will still apply, therefore, to any situation calling for an application of the exceptional principle but which does not involve both asbestos and mesothelioma.

The Barker approach would, for instance, still apply to McGhee, were it decided today.

Sienkiewicz v Grief [2011] UKSC 10

LIABILITY FOR THE WHOLE DAMAGE

Barnett v Chelsea and Kensington Hospital Management Committee [1969] 1 QB 428

LIABILITY FOR THE PART OF DAMAGE –

Orthodox Rule: Where the defendant is divisible, the defendant will only be liable for the part she causes.

Performance Cars Ltd v Abraham [1962] 1 QB 33

INDIVISIBLE INJURIES

Binary injuries

i.e. the injury is either present or it is not present: there is no graduation in terms of mild, moderate or severe.

E.g. death, broken bone, mesothelioma

Performance Cars cannot apply because the injury cannot be divided amongst different casual factors.

FULL LIABILITY FOR MATERIAL CONTRIBUTION

If you are found to be solidly liable for material injury you will be held as fully liable for those injuries

LOSS OF A CHANCE

Hotson v East Berkshire AHA [1987] AC 750

Question of a PAST FACT, in that necrosis was ALREADY present

In tort, you cannot be liable for the loss of a chance of an adverse physical outcome only.

Gregg v Scott [2005] UKHL 2

Question of FUTURE COMPLICATIONS/EVENTS in chance of survival

Claiming something he had not lost – only lost probability

Still alive at the time of the hearing – physical evidence that what the first doctor did, had no deprivation concerning him i.e. he was still alive.

REMOTENESS IN NEGLIGENCE

The type of damage must be reasonably foreseeable, not just damage alone.

What does NOT have to be foreseeable:

Extent:

Smith v Leech Brain & Co [1962] 2 QB 405

Manner of Occurrence

Hughes v Lord Advocate [1963] AC 837

Likelihood

The Heron II [1969] 1 AC 350

What is meant by reasonably foreseeable “type”?

Page v Smith [1996] AC 155

Corr v IBC Vehicles [2008] AC 884

NOVUS ACTUS INTERVENIENS

Refers to the act, which follows a first one, and is regarded as the true cause of the damage, because it has ‘broken the chain of causation’ and has extinguished the effect of the first act.

Rationale behind this is fairness;

Not fair to hold the defendant liable, however gross his breach of duty, when some independent supervening cause is the actual cause of the claimant’s injury.

Doctrine overlaps in with reasoning in ‘consecutive cause’ cases and cases which the question of whether a person owes a duty to prevent a third party from causing damage and the defences of Act of God, volenti non fir injuri and act of stranger arise.

Doctrine used by many as the test for ‘remoteness of damage’

Intervening Act of a third party

Three ways in which a third party may interfere with a course of events:

Natural/Instinctive Intervention

Negligent Intervention

Intentional Wrongdoing

Natural/Instinctive Intervention

Scott v Shepherd (1773) 2 Wm. Bl. 892

Makes clear that a third party’s intervention will not break the chain of causation where it is an involuntary reaction in the “heat of the moment”.

However, the same sort of reasoning appears to apply in cases where the third party has some opportunity to reflect before acting.

The Oropesa [1943] P.32.