JP 17 - Delict and Unjustified Enrichment PDF

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JP 17.2.20 Delict and Unjustified Enrichment (LS1536) Lecture 17

Finishing off previous weeks lecture

Barker v Corus UK Ltd (2006) 2 AC 572 

This was about the Fairchild exception – specifically to do with situation where there’s multiple employers, each exposing this person to a dangerous chemical, asbestos. It is a mystery as far as science is concerned which exposure actually triggered the cancer. Each one has to pay the percentage of the risk that they

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were responsible for. One of the issues raised, once liability has been established, how much does each

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employer owe you? A similar case to Fairchild. It was held, inter alia, that:

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Where there was more than one wrongdoer, the liability should be divided according to the proportion of the risk created by each wrongdoer.

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E.g. 2 employers contribute 50% of the risk of the pursuer contracting mesothelioma. Each can be sued for 50% of the damages awarded only.

But this has now been reversed by statute… The ‘but for’ test is very strict in a nutshell. In certain unusual cases the courts have tried to make it less strict, or to introduce exceptions to this. Basis for saying that the extent of liability should not be joint and several: ‘The justification for the joint and several liability rule is that if you caused harm, there is no reason why your liability should be reduced because someone else also caused the harm. But when liability is exceptionally imposed because you may have caused harm , the same considerations do not apply and fairness suggests that if more than one person may have been responsible, liability should be divided according to the probability that one or other caused the harm.’ (Lord Hoffmann in Barker v Corus). -

Limit the amount that the employer might be liable for

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You’re liable just if it can be shown that you materially increased the risk of someone getting cancer. Since it is based on risk, liability is based on the risk percentage.

Compensation Act 2006, s 29 (1) This section applies where(b) The victim has contracted mesothelioma as a result of exposure to asbestos. (c) because of the nature of mesothelioma and the state of medical science, it is not possible to determine with certainty [which] exposure […] caused the victim to become ill […] (d) the responsible person is liable in tort [i.e. delict], by virtue of the exposure […] (2) The responsible person shall be liable(a) in respect of the whole of the damage… (b) jointly and severally with any other responsible person. -

NOW, it is possible to sue any one of the employers for the full 100%.

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Parliament intervened in this case The court (house of lords) acted in the employer’s interest, whereas parliament acted in the victim’s interest (in this Act)

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Sienkiewicz v Greif (UK) Ltd (2011) 2 AC 229 Similar facts to Fairchild, albeit there was only one employer. The two exposures to asbestos were as follows: (1) Exposure as a result of the general environment. (similar to Fairchild) (2) Exposure as a result of the factory in which the employee worked. This increased the employee’s risk of contracting mesothelioma as a result of exposure (1) by a mere 18 per cent. -

The exposure was relatively small from this one employer.

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It was argued by the employer that the employee should be able to show that the employer’s exposure more than doubled the risk of getting cancer as a result of the environmental exposure to asbestos.

The House of Lords held: -That the Fairchild exception applied even though there was only one wrongful exposure. -There was no need for the defender’s wrongdoing to have doubled the risk of the employee contracting the disease. Conclusion

*you need to know all of this for the exam* -

There is a requirement of factual causation under the law of negligence The traditional test is the ‘but for’ test but there is now also the test of ‘material

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contribution’ There are also exceptional cases in which a ‘material increase in risk’ will suffice

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In the next lecture, we will examine ‘legal causation’.

Legal causation •

The defender’s breach of duty must be both a cause in fact ( causa sine qua non) and a legal cause (causa causans) of the pursuer’s loss.

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Legal causation involves a very different enquiry from factual causation.

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Sometimes legal causation is couched in different language, e.g. the need for the defender’s breach of duty to be a ‘proximate cause’ or a ‘substantial cause’.

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The wording makes it sound more scientific than it really is – it basically means, should the defendent be liable for everything he or she causes.

Small actions can have large (possibly unpredictable) consequences:

And again, he adviseth to circumspection and care, even in the smallest matters, because sometimes, “A little neglect may breed great mischief;” adding, “For want of a nail the shoe was lost; for want of a shoe the horse was lost; and for want of a horse the rider was lost,” being overtaken and slain by the enemy, all for want of care about a horseshoe-nail.’

(Benjamin Franklin, ‘The Way to Wealth’ (1758)) -

This illustrates that something can be a ‘but for’ cause, but not a legal cause One person shouldn’t be liable for everything!

How do we establish legal causation? •

Generally a factual cause is a legal cause

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If D’s breach of duty is a factual cause of P’s loss it will very often be a legal cause unless D can establish the existence of a novus actus interveniens (new intervening act).

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A novus actus interveniens is said to break the chain of causation.

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A novus actus interveniens can consist of: -an external event; -conduct of a third party; -the conduct of the victim himself/herself.

How do we establish legal causation? •

Generally speaking an event will be a novus actus interveniens if:-

-it was not reasonably foreseeable and/or -it was unreasonable (i.e. the pursuer does something unreasonable which breaks the chain of causation). - There will be a nova actus if the even was not foreseeable, or if it was unreasonable.

The Oropesa [1943] P 32 -

A ship collided with another ship. The captain of one of the ships decided he would salvage his ship – one of the crew members drowned after the boat capsized.

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The question was whether the man who died could sue (or his parents on his behalf) the captain of the other ship – he was in breach of duty. Was it a novus actus that the crew had tried to rescue their ship. They didn’t HAVE to try to rescue their ship.

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The courts decided the man dying was caused by the ships colliding – so the owner of the ship who collided with the other ship was liable

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To have a novus actus you need something that is pretty extreme/ unexpected.

A ship (the Manchester Regiment) suffered serious damage when it collided with another ship (the Oropesa). The captain of the Manchester Regiment thought that it could be

salvaged and so organised a rescue party to that end. One of the sailors involved died in the process of trying to rescue the ship and the rescue attempt was ultimately a failure. In an action by the deceased sailor’s parents against the owners of the Oropesa, it was held that the captain of the Manchester Regiment’s decision to try to rescue the ship was not a novus actus interveniens.

The Oropesa (cont.) There was an unbroken sequence of cause and effect between the negligence which caused the Oropesa to collide with the Manchester Regiment, and their action[i.e. that of the master of the Manchester Regiment and the deceased sailor who joined him on the salvage mission] , which was dictated by the exigencies of the position.’ (Lord Wright at 37) ‘The question is not whether there was a new negligence but whether there was a new cause. […] To break the chain of causation it must be shown that there is something

which I will call ultroneous [i.e. something spontaneous or voluntary] , something unwarrantable, a new cause which disturbs the sequence of events, something which can be described as either unreasonable or extraneous or extrinsic. ’ (Lord Wright at 39) -

There was no novus actus and legal causation was established.

Sayers v Harlow Urban District Council[1958] 1 WLR 623 The plaintiff became trapped in a public toilet. In an effort to climb over the door she slipped and fell, injuring herself. It was held that the plaintiff’s escape attempt was not a novus actus but was a reasonably foreseeable consequence of the breach of duty. However, she was still held contributorily negligent to the extent of one quarter.

Sayers v Harlow Urban District Council(cont.) A woman goes to a public lavatory and finds that she is immured[i.e. trapped] in it. She finds, after ten or fifteen minutes, that the obvious and proper means of attracting attention had been entirely without avail; shouting and waving through the window has produced no result at all. It is an extremely disagreeable situation in which to find oneself; and it seems to me to be asking too much of the so-called reasonable man or woman to suppose that he or she would just remain inactive until her husband, or someone else, chose to come and look for her and find her […] However that may be, I think that, applying the ordinary tests of reasonableness, it[i.e. the plaintiff’s standing on the toilet seat to see whether she could escape] was not either an unreasonable thing to do, nor was it indulging in grave risk’.

(Lord Evershed MR at 626-627)

Sayers v Harlow Urban District Council(cont.) ’[…] But I think it true to say, and fair and right to say — though it is, of course, one of those matters when, no doubt, it is being wise after the event — that in getting back to terra firma again she should have appreciated that she could not properly and ought not to allow her balance to depend upon anything so unstable as a toilet roll and a fixture of a somewhat slender kind. […] I would apportion the matter as to three-fourths liability to the defendants, and one-fourth to her.’ (Lord Evershed MR at 629-630)

McKew v Holland, Hannen, Cubitts (Scotland) Ltd1970 SC (HL) 20 A man was injured in a work-related accident thanks to which his left leg became periodically numb. Three weeks after the accident, he was descending a steep staircase of ten steps (there was no handrail). His injured leg went numb and because he feared he might fall he jumped to the bottom of the staircase, injuring himself further. The man’s employer was not liable for the second injury. The man acted unreasonably in descending the stairs in the way he did and that unreasonable conduct was a novus actus interveniens. ‘[…] [I]f the injured man acts unreasonably, he cannot hold the defender liable for injury caused by his own unreasonable conduct. His unreasonable conduct is novus actus

interveniens. The chain of causation has been broken and what follows must be regarded as caused by his own conduct and not by the defender's fault or the disability caused by it. […] I do not think that foreseeability comes into this. A defender is not liable for a consequence of a kind which is not foreseeable . But it does not follow that he is liable for every consequence which a reasonable man could foresee. What can be foreseen depends almost entirely on the facts of the case, and it is often easy to foresee unreasonable conduct or some other novus actus interveniens as being quite likely.’ McKew v Holland, Hannen, Cubitts (Scotland) Ltd1970 SC (HL) 20 at 25 (Lord Reid). -

Sometimes these cases are about reasonable foreseeability, and sometimes they are about someone being unreasonable.

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It was reasonably foreseeable when the man broke his leg, but it was still unreasonable of the pursuer to do this.

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If you can show something happened after the main accident that was not reasonably foreseeable then you have a novus actus and the defender is not liable for the later injuries.

Sabri-Tabrizi v Lothian Health Board 1998 SC 373 -

This is a similar case where a procedure didn’t work.

The pursuer underwent a sterilisation procedure in September 1991 but fell pregnant in June 1992 after which she had an abortion. In July 1992, the pursuer became pregnant a second time. It was held that the defenders were only liable for the first pregnancy as a result of the failed sterilisation. The second pregnancy was seen to stem from a novus actus: the pursuer’s continuing to have sexual intercourse after discovering that the sterilisation procedure had been unsuccessful. -

Although she was taking precautions, the fact that she was continuing to have sex showed she accepted this small risk of falling pregnant.

Sabri-Tabrizi v Lothian Health Board (cont.) ‘[The pursuer] avers that she took precautions, but insofar as there remained a residual

risk, in a question between her and the defenders I think that it was unreasonable of her to expose herself to that risk. Accordingly I regard her decision to have sexual intercourse in the knowledge that she was not sterile as constituting a novus actus interveniens, breaking the chain of causation, with the result that the defenders cannot be held liable for the second pregnancy and the consequences thereof.’ (at 378 (Lord Nimmo Smith))

Corr v IBC Vehicles Ltd [2008] 1 AC 884 Unusual case – later succumbed to depression and later took his own life. A man suffered severe head injuries in an industrial accident which necessitated reconstructive surgery. He subsequently suffered from post-traumatic stress disorder, severe anxiety and depression, and eventually committed suicide. It was held that the deceased’s employer was liable for his death and that the suicide was not a novus actus interveniens.

Corr v IBC Vehicles Ltd (cont.) ‘The rationale of the principle that a novus actus interveniens breaks the chain of causation is fairness. It is not fair to hold a tortfeasor liable, however gross his breach of

duty may be, for damage caused to the claimant not by the tortfeasor's breach of duty but by some independent, supervening cause (which may or may not be tortious) for which the tortfeasor is not responsible. This is not the less so where the independent, supervening cause is a voluntary, informed decision taken by the victim as an adult of

sound mind making and giving effect to a personal decision about his own future. […] [Where the victim takes his/her own life] it is usual to describe the chain of causation being broken but it is perhaps equally accurate to say that the victim's independent act forms no part of a chain of causation beginning with the tortfeasor's breach of duty.’ (903-904 (Lord Bingham))

Corr v IBC Vehicles Ltd (cont.) ‘In the present case Mr Corr's suicide was not a voluntary, informed decision taken by

him as an adult of sound mind making and giving effect to a personal decision about his future. It was the response of a man suffering from a severely depressive illness which impaired his capacity to make reasoned and informed judgments about his future, such illness being, as is accepted, a consequence of the employer's tort. It is in no way unfair to hold the employer responsible for this dire consequence of its breach of duty, although it could well be thought unfair to the victim not to do so.[…]’ (904 (Lord Bingham)) ‘It is of course true that, judged objectively, it is unreasonable in almost any situation to

take one's own life. But once it is accepted, as it must be, that the deceased’s unreasonable conduct was induced by the breach of duty of which the claimant complains, the argument ceases in my judgment to have any independent validity.’ (905 (Lord Bingham)) -

This wasn’t a novus actus, even though committing suicide usually is.

Summary of how to deal with causation issues (1) First ask whether the defender’s breach of duty is a cause in fact of the pursuer’s loss (e.g. because, ‘but for’ the defender’s breach of duty the pursuer would not have suffered the loss). (Factual causation) (2) Second – and only if factual causation is established – consider whether the defender’s breach of duty is prevented from being a legal cause of the pursuer’s loss because of the presence of a novus actus interveniens. (Legal causation).

Summative assessment details •

Summative assessment:

-1500 word essay (maximum - excluding footnotes and bibliography). -Consists of an answer to a problem question. -Counts for 25% of your overall mark for this course.

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As always, you will be graded according to the CGS scale:

https://www.abdn.ac.uk/staffnet/teaching/common-grading-scale-2840.php

Advice for the summative assessment •

One (and by no means the only) useful way to approach problem question answers is as follows:

(1) Identify the legal issues in question (2) For each legal issue: -Identify the relevant law -City authority for the relevant law

-Apply the relevant law to the facts of the problem. •

Make the most of tutorial 2.

Advice for the summative assessment (cont) •

Remember to cite case law.

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Keep the different legal issues separate – (breach of duty from duty of care, etc…)

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Don’t be afraid to state what might seem obvious.

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Stick to what is relevant.

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Be as detailed and precise in your language as possible.

Referencing guides Quick guide to the OSCOLA referencing system: https://www.law.ox.ac.uk/sites/files/oxlaw/oscola_4th_edn_hart_2012quickreferencegui de.pdf Detailed guide to OSCOLA: https://www.law.ox.ac.uk/sites/files/oxlaw/oscola_4th_edn_hart_2012.pdf FAQS: https://www.law.ox.ac.uk/oscola-faqs...