Tort law - 5

Tort law - 5

1. how to establish a claim of negligence 1) must be a duty - Robinson 2) breach of duty - have general standard of care 3) causation - but for test

2. what is the purpose of remoteness rules

   • the purpose of the remoteness rules is to avoid the unfair imposition of liability , even where It is clear that the defendants breach of a legal duty caused the claiamnt damage, the court may feel that it would not be appropriate to hold the defendant liable for the damage e.g. because the injury was of an unexpected type ,so court may hold that damage Is too remote
   • w.rogers ,winfield " any student who expects a scientific analysis of remoteness will be grievously disappointed , nothing can release judges from the effort or agony of deciding each case on its merits with such help as they can get from very general principles
   • s.hedley " a common complaint about texts on the tort of negligence is that the terminology used is too vague , one answer is that the texts are at least telling it like it is , the law is vague , and more precise renditions would be misleading
   • the but for test and chain of causation , intervening act of the third party , there is a chain of liability but might brake on the chain , when one act follows another the last act is probably the true cause of the harm , A causes harm to C , what if b INTEREFERES AND THAT CAUSES HARM TO c , Who should eb liable A or B, this can happen due to intervening act of third party of whom we have no control, A cause harm to C , A would be the defendant and C would be the claiamnt, but what if B says I could see a situation and take advantage of the situation and cause harm to C , B is the third party intervening, the third party broke the chain of causation , mean that the claiamnt broke the remote , B never cause the situation originally , so is it right for them to be liable

3. intervening act of a third party

   • the courts are gererally unwilling to hold a defendant responsible for the acts of a third party who took advantage of the defendants negligence to commit a tort against the claimant , an act of a third party may break the chain of causation and thereby render the claimants loss too remote where the act of the third party is morally speaking , much more blameworthy than the defendant act , or where the third party act is unlikely , an act of a third party may break the chain of causation

4. intentional acts of wrongdoing

   • lamb v Camden London borough council (1981) - burst of water pipes and council was responsible for it , caused damage to claimant property by flooding , claimant was living abroad at time but arranged for furniture to be removed out and repairs, house was left unoccupied, scoter moved into the house and caused extensive damage to the property , squatters is the third party , council did wrong by allowing house to be flooded , caused damage , scoter also caused damage as they broke the chain of causation , claimant bought claim against council but failed as not responsible for the scoters behaviour, even though there behaviour was highly foreseeable, broke the chain between the council and the claiamnt - intentional intervention ,
   • lamb v Camden London borough council (1981) - a burst water main , for which the defendant council was responsible , had caused the plaintiff house to become flooded, the plaintiff who was living abroad at the time, moved her furniture out of the house and made arrangements for repairing the damage , whist the house was left unoccupied , squatters moved in and caused extensive damage to the house, the plaintiff action in respect of this damage failed , the council was not liable for the squatters antisocial and criminal behaviour , this was so even though in modern times the actions of the squatters could be regarded as highly foreseeable, he responsibility for keeping the squatters out lay with the plaintiff and not the council and that the loss they had caused should be borne by the plaintiffs insurer

5. negligence intervention

   • this is where you have a situation where A causes damage and harm to the claimant but B actions as a third party action was so powerful that they overtake powers of third party , to break causation
   • knightly v johns (1982) - a car crash In a tunnel resulted in the police attending , an inspector who failed to seal off the tunnel immediately , ordered an office to ride his motorcycle against flow of traffic , the motorcyclist collided with an oncoming vehicle and was injured , the inspector was liable , the inspector order was a nous acts intervene which negotiated the car drivers liability , the inspector was negligent, this was a negligent act it was not foreseeable, police actions overtook the defendants original actions, whether police arriving giving wrong instructions was it a natural consequence of the defendants turning the car ? NO ,intervening act ,right break chain of causation and intentional act of wrongdoing, deliberately doing wrong
   • the sivand (1998) - when the independent act of a third party is properly regarded as the effective cause of damage then that is because the intervening act was independent this is a question of fact to be answered on a common sense basis , although consideration both of negligence and reasonable foreseeability may be relevant

6. intervening act of the claimant

   • the claimant unreasonable conduct may break the chain of causation and receive the defendant from responsibility for damage suffered after the intervening act , claimant action is the true cause of the harm , broke the chain of causation , action not foreseeable as it too remote , contributed to negligence e.g crossing road knowing that there is a zebra crossing not used it and crossed it anyways , if we were hit by a car they would Bring a defence for not crossing in the middle of the road , car would stop at zebra crossing but not middle of the road, you contributed to the negligence by crossing on the wrong place

7. when does a claimant own act break the chain of causation

   • McKew v holland and hanned and cubits (1969) - the claimants sustained an injury at work due to his employers breach of duty , he strained his back and hips and his leg was prone to giving way , whilst in this state he attempted to climb down a steep concrete staircase without a handrail unaided , he got part way down and felt his leg give way so he jumped 10 steps to the bottom , he suffered a fractured right ankle and was left with a permanent disability , the defendant accepted liability for the injury sustained during his employment but disputed lability for the second injuries resulting from the claimants action in jumping down the stairs , the lciaamnts action amounted to a nous acts interventions because his actions in attempting to climb the steps unaided knowing that his leg might give way was unreasonable , the defendant was therefore not liable for the injuries resulting from the incident on the stairs ,
     • claimant suffered injury to leg as a result of the defendant negligence , result the claimant leg used to give way , one day the claiamnt went to look at property with the family, he descended down the steep staircase but did not have a hand rail , the claimant hence fell down the stairs fracturing his ankles, this was a silly thing to do , claiamnt was also holding child going down the stairs, defndnat was originally negligence for causing the injury , defendant however cannot be responsible for the claimant own act , knowing that you have injury ? you should not hold child and you know your leg gave way , claimant unreasonable behaviour was a breach of causation
   • wieland v Cyril lord carpers (1969) - claiamnt was injured by defendant negligence , had to wear a neck brace , she couldn't wear glasses, she had gone to hopsital for treatment and after leaving felt nervous and went to son office to take her home , not confident to go home alone , so son took her down the stairs she fell , was one continuous event , the claimants reasonale act did not break the chain of causation when recovering from an injury , the original tortfeasor was still liable for the further injury
   • Spencer v win canton holdings (2009) - here the claimant had had his leg amputated as a result of the defendant negligence , he had been fitted with a prosthesis but pending further adaptions to his car, this could not be worn whilst he was driving , he pulled into a filling station , and without the aid of his prosthesis or walking sticks , go out of his car and filled it with petrol , using the car for support, as he was returning to the drivers door he tripped and fell sustaining a further injury which confined him to a wheelchair , the court held that the limas actions were not so unreasonable as to break the chain of causation , he had made a misjudgement in running a risk by not using the prosthesis or sticks , but this was properly reflected in a finding of contributory negligence , he thought it was a lot of work putting legs the putting in petrol , too much time , there was no break of causation just made misjudgement , does not mean that he Is liable ,
   • emeh v Kensington and Chelsea (1984) - claimant has 3 children and underwent sterilisation at defendants hospitals , later she discovered she was 20 weeks pregnant , you can have abortion at 20 weeks pregnant,she was given a choice whether she want to continue or abort the child, she had sterilisation , but she decided to continue with pregnancy , gave birth to child with deformity , claimant parent bought claim against the hospital for birth and pregnancy and for bringing up child , more costly as he was disabled, the operation was performed negligently, child needed consent care, was her decision not to have abortion a breach in chain of causation , court said no negligent operation was cause of child being born with congenital disabilities , reason for having operation was to avoid occurrence of pregnancy , therefore damages were allowed because of the negligence operation
   • Reeves v metrpolitican police commissioner (1999) - situation where someone goes into police custody and told that this person is at suciide risk , police should take further precaution for this , before Robinson they had a blanket immunity , prisoner was at suicide risk , is that a break of causation between the police and the claimant ,here the diseased brought into police custody , police negligent left the cell door ope , using some fabric he was able to create a spy whole on the outside of the door and hund himself, was at police record that he was at suicide risk , made two attempts , doctors sad that he shocked be in frequent observation , it was the claim choice to commit suicide, is It fair to impose liability on the police , duty of care was present , he was at suciice risk therefore the police was liable , it did not break the chain of causation beaause the police was under a duty to look after him as an individual , police was under duty to prevent suicide
     • by 3:2 majority hol held that the suciide was a deliberate and informed act , could not be regarded as having broken the chain of causation , given that the police were under a specific legal duty to guard against the commission of that act

8. intervening act of the claimant

   • where D's tort interfered with the claimants mental stability or mental health , subsequent activity by claimant will not necessarily be judged by ordinary standards of reasonableness , but may be judged by more generous standards of foreseeability
   • meah v McCreamer (1985) - claiamnt suffered head injuries in a road traffic accident caused by the defendant negligence , the head injuries left the climate with a personality change , consequently he was convicted of sexual assault on two women and wounding with intent , in addition he was convicted of rape and wounding on a third women , he was sentenced to life imprisonemnt , he was awarded substantial damages on the grounds that but for the injury he wouldnt have committed the offence , claimant claim damages from the defendant road traffic accident on the ground that but for the brain damage that he sustained and result of personality change he would have not committed the rape , if he wasn't in car accident , he wouldn't be the way , its his fault , too remote, he did not have a choice , you made me this way , is the claimant entitled to damage of prisoning of the offence due to having personality change, looking medical advice ,accident change personality and cause rape
     • diminish responsibility , public policy would not lend that support to people that cause criminal and immoral acts ,damages not recoverable from person who caused accident to compensate victims of C's reluctant personality change
   • Gray v thames trains (2009) - suffered disorder and depression , personality change due to accident and he kept on having outburst , was driving and he got angry with a stranger , went to a friend house got a knife and went back found the homeless guy and stabbed him to death , responsible for manslaughter for diminished resistibility , said he would not have done that if the accident dint occur due to personality change, this was his own doing , he cannot continue to get damages as this was his own doing and he committed an illegal act (EX turpi means illegal act )
   • Corr v IBC vehicles ltd (2008) - claimant sufferedd head injury as a result of defendnats negligence, caused personality change such as depression and suicidal thought , he goes onto commit suicide , wanted t kill himself this does not break the chain of causation , killing yourself does not break the chain of causation , killing someone else does break the chain of causation , as a result of post traumatic stress disorder it makes you do stuffs that you won't usually do

9. foreseeable type of harm

   • who is the claimant , who is the defendant and what type of harm was discovered? if the claimants harm is not to be too remote it must be of a kind , type or class that was reasonably foreseeable as a result of the defendant negligence
   • overseas tank ship ltd v morts dock and enginerring the wagon (no 1) (1961) - there was an oil spill and spark ignited the oil and caused damage by fire , this was not foreseeable , what was foreseeable was the oil overing the ship , what was not foreseeable was the oil causing fire , damage by fire was too remote, if type fo harm is foreseeable then the way It occured need not be foreseeable , privy council decision was that the occurrence of the fire was not reasonably foreseeable , but it was reasonably foreseeable that the oil might cause damage to the plaintiffs wharf by fouling it, defendant were not liable . lordship held that the proper test for remoteness of damage was whether the defendant could have reasonably foreseen the kind of damage for which the plaitiffs were suing ,
   • hughes v lord advocate ( 1963) - post office breach of duty left something open on street , working on telephone cable without any orange warning , it was unguarded , was surrounded by lamps as a way of safeguarding the area, claimant who was 8 years old picks up one of the lamps and goes down the whole , a burst takes place , Its foreseeable as you can burn yourself with a lamp . if your going to guard it why put paraffin lamps, doesn't matter how it was caused , it was caused by using unsuitable safety measures , post office was liable, even though it could not reasobaly have foreseen that anyone might be burned by an explosion in the manhole, there was a reasonably foreseeable risk of the boy being burned by the paraffin lamp such as damage by burning
   • Bradford corp v Robinson rentals ltd (1967) - the plaintiff suffered frostbite when he was sent on a journey by his employer in a van without a heater , it was held that although frostbite was a rather unusual consequence in the circumstance it was practically inhered in britian , it was nevertheless of the type and kind of injury which was, the claimants injuries were not foreseeable , the precise injury need not have been anticipated , rather the defendant need only have been able to force an injury of that kind occurring reasonably foreseeable
   • jolley v sutton LBC (2000) - two 14 year old boys found an abandoned boat on land owned by council and decided to do it up , boat was it rotten condition and represented danger, council had struck a notice on the boat warning not to touch the boat and that if the owner did not claim the boat within 7 days it would be taken away , council never took it away , boys had been working on the boat 7 weeks when one of them suffered several spinal injuries , resulting in paraplegia ,when the boat fell on top of him , boys had jacked the boat up to work on the underside and the jack went through the rotten wood, claimant bough action under occupiers liability act 1984 , appeal reversed decision and whilst it was foreseeable that younger children may play on the boat and suffer an injury by falling through rotten wood , it ws not foreseeable that older boys would try to do the boat up, the claimant appeal was allowed as the risk was that children would meddle with boat at risk of physical injury
     • wanted to repaint it and salt it and pretend to be pirates, laid underneath to repair it and it falls on his back , left paralysed , council ad respisbilit to remove the boat it was there duty , it was foreseeable that the children would play with the boat and suffer personal injury , however it was not foreseeable that the teenager would attempt to reconstruct the boat , the council was found liable for the claimant injury as they had a duty to remove the boat to avoid injuries
   • doughty v turner manufacturing company (1964) - an asbestos lid was accidentally knocked into a cauldron of molten liquid , a few moments later an explosion occurred, the claimant was standing close by and suffered burns from the explosion , the explosion occurred as a result of the asbestos reacting with the chemicals in the liquid in the high temperature ,at the time of the incident it was not known that the asbestos could react in that way held the damage was too remote , it was not foreseeable that an explosion would occur, whilst it may be foreseeable the lid may have caused a splash resulting in a scold , it was not foreseeable that an explosion would occur resulting in burns

10. foreseeable type of harm

    • if the type of damage suffered was reaosanably foreseeable , the defendant will be liable for it even if the actual damage is far greater in extent then could have been foreseen , C must establish that the type of harm was reasonable foreseeable
    • overseas tank ship v morts dock (1961) - the oil leak case
    • doughty v turner manufacturing (1964) - workmen employed by the defendant had allowed an asbestos cover to drop into a vat of a very hot liquid , the cover slid in at an angle and did not cause a splash , a few minutes later , chemical changes in the asbestos brought about by the high temperature caused an eruption of the liquid ,which splashed out of the vat , burning the plaintiff, the possibility of an eruption occurring in this way was unknown at the time held the defendant liable
    • the precise sequence of events by which the injury was brought about is immaterial
      • (i) foreseeability of the kind of damage - hughes v lord advocate (1963) ,case of paraffin lamp and unforeseeable explosion occurred resulting in burns , forseeble that the boys may suffer a burn from lamp
      • (ii) foreseeability of the way the damage is caused - hughes , jolley v Sutton (2000) - this was the abounded boat case by council and doughty v turner manufacturing (1964)

11. eggshell skull rule - take the victim as you find them

    • c does not need to establish that the extend of the injury was reasonably foreseeable
    • smith v leech brain ltd (1962) - the plaintiffs husband was burned on the lip at work by a splash of molten metal , at the time of the accident it was not known that he had a from of pre-maligant cancer , the burn triggered the onset of the cancer from which he dies three years later , a defendant must force the kind of damage In suit, not meant that to hold that the extend of the damage had to be foreseeable, eggshell skull rule had not been displaced, damage by burning or damage by cancer , same kind of damage personal injury caused by an accident at work , held the defendant liable, take the victim as you find them , the metal triggered the cancer
    • eggshell skull rule can be properly thought of as applying to situations where the claimant loss is exacerbated only by surrounding circumstances , rather than by inherent hypersensitive characteristics of the claiamnt person or property , the defendant takes as he find them ,, not only the physical state of the damaged person or property , but also the surrounding external physical circumstance , established law that where an injured claim suffered from some peculiar hypersensitivity which exacerbated his or her los , then provided the defendant could reaosbaly force some injury to a normal claimant , the defendant would be liable for the full extent of the loss
    • Great Lakes steamship co v maple leaf milling (1924) - the defendant negligence in failing to lighten a ship , it settled on a submerged anchor, the defendants were held liable for the full extent of the damage , even though they could have not known the anchor was there , having created a risk of foreseeable damage of the relevant kind , the ship hitting the bottom , they had to take all the circumstance as they found them , the courts refused to apply the eggshell skull rule to losses which were caused by the claiamnt own lack of funds
    • liesbosch dredger v SS Edison (1933) - HOL had restricted the plaintiffs claim for losses caused by the sinking of their dredger due to the defendants negligence , to exclude the additional costs incurred by hiring a replacement dredger at an exorbitant rate to fulfil an existing contract , lordship awarded a loser cost of buying a comparable dredger and refused to recognise that , due to plaintiffs impecuniosity , such as purchase had been a financial impossibility , the additional cost incurred is hiring a replacement vessel had an extraneous cause , namely the plaintiff financial circumstances and were therefore too remote