Tutorial Five – Remoteness of Damage and General Defences PDF

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Tutorial Five – Remoteness of Damage and General Defences Remoteness 1. What is remoteness? How far the damage is from the breach. It determines the extent of loss that is recoverable. 2. Which authority provides the basis for the current test for remoteness? The Wagon Mound (No 1) [1961] AC 388 3. What is the current test? The test of reasonable foreseeability – the view is that a claimant can only recover if they can show that the damage that they have suffered was reasonably foreseeable by the defendant at the relevant time i.e. when the defendant breached the duty of care they owed the claimant. 4. Were the claimants in The Wagon Mound (No. 1) successful? No, the defendants were not held liable. In this case the defendants negligently caused oil to spill into Sydney Harbour. The oil spread a distance of 600 feet into the vicinity of a ship called The Corrimal which was berthed at the claimant’s wharf. Two days later welding operations on The Corrimal caused a spark to come into contact with harbour rubbish floating on the oil. The flames from the debris set the oil on fire. The resulting fire caused extensive damage to the claimant’s premises. While this was a direct result of the defendant’s negligence, the court held that it was not reasonably foreseeable damage. The welders on The Corrimal had noticed the oil and sought expert advice before welding. They were told that there was no risk of fire given that the type of oil spilled required an extremely high ignition point to catch alight. Damage by pollution was foreseeable, but damage by fire was not. The defendants were held not to be liable. 5. In what way/s is remoteness driven by policy?

Policy dictates whether the loss is too remote and so unrecoverable.  Economic reality  Floodgates  Justice 6. Tremain v Pike and Bradford v Robinson Rentals both concern types of personal injury sustained by claimants as a result of the Defendants’ breach, and yet in the former that loss was too remote and in the latter it was not. Why do you think the cases were decided that way? Tremain v Pike – Incidence of disease on the farm was very rare and there was no evidence that the farming community knew that such a disease existed or that a person might contract this disease from handling matter contaminated with rats’ urine. The court adopted a narrow approach and held that the type of damage that had to be foreseeable was disease contracted through contact with rats’ urine (rather than say, any injury caused by rats). The defendant could not reasonably foresee this type of damage and was therefore not liable. Driven to a large degree of how to protect the employer

Bradford v Robinson Rentals - The claimant suffered frostbite as a result of the defendant’s negligence. The defendant argued that frostbite was not reasonably foreseeable (as it is very rare in the UK). The judge held that the type of loss that had to be reasonably foreseeable was any cold related injury. The defendant could foresee this type of loss and was therefore liable.

7. Can a claimant’s suicide ever be deemed reasonably foreseeable/ not too remote? Give an authority for your answer. In Corr v IBC Vehicles [2008] 2 WLR 499 the House of Lords had to determine whether the death of Mr Corr by suicide resulting from depression caused by the accident at work was reasonably foreseeable. The House accepted that it was entirely foreseeable that he would suffer psychological symptoms as a result of the accident. Since it was those symptoms that lead ultimately to the suicide, his death by suicide was an element of the foreseeable injury. 8. Does the Defendant need to foresee the exact way in which the damage occurs? Give an authority for you answer. Once it has been established that the kind or type of damage is reasonably foreseeable, there is no need for it also to be reasonable for the defendant to foresee the exact circumstances leading up to the damage. In Hughes v Lord Advocate [1963] AC 837 workmen negligently left oil lamps surrounding a hole in the road. The court found that the cause of the accident, the lamp, was a known source of danger. Therefore, damage from burns was foreseeable as the end result regardless of whether the cause was the explosion or the claimant knocking over and breaking the lamp. Damage caused by fire was foreseeable and there was therefore no need to foresee the exact way in which the fire damage occurred. 8. What is the ‘thin skull’ rule and how is it relevant to remoteness? This falls under the idea that there is no need for the defendant to foresee the exact way in which the damage occurs. This rule applies even if the damage or extent of injury has been aggravated by the claimant’s own weakness. This is the so-called ‘thin skull’ or ‘egg shell’ rule. Effectively, the defendant must take their victim as they find them. 10. Page v Smith is useful authority when looking at remoteness. Why? In the decision of Page v Smith [1996] AC 155 the House of Lords had to determine precisely what harm had to be foreseeable in a case involving ‘nervous shock’ (this is psychiatric harm, considered in Chapter 8). The result being that the court treated personal injury as a single indivisible type of harm. Lord Lloyd (with whom Lord Ackner and Lord Browne-Wilkinson agreed) stated that it was necessary to satisfy only the following test of foreseeability, ‘whether the defendant can reasonably foresee that his conduct will expose the plaintiff to the risk of personal injury, whether physical or psychiatric’. As long as physical injury is reasonable foreseeable, claimant can recover from psychiatric loss. If physical not foreseeable, psychiatric must be – because you have to consider proximity.

General Defences Problem Answer – BIT BY BIT FOLLOW THE STRUCTURE AND IT’S EASY Parties: Farrer v Lampoon Tort: General negligence Loss: Personal Injury Duty of Care: Caparo – is there a precedent? Yes, there is. Condon v Basi. [so Caparo test not needed]. Standard in breach: Professional Standard – Condon v Basi - where you have premiership players, you should expect more from them. Legal standard – Apply professional standard ‘Bulham’ - reasonably competent professional footballer. Have to look at the fact he is a professional footballer, so more is expected from him. Although it is objective, it raises the standard. Factual standard – Look at reckless disregard – LOOK AT BOTH: 1. Tackle by Lampoon showed a reckless disregard for the safety of Farrer (Wooldridge v Summer). Yes, it shows reckless disregard. 2. Rules of the game – usually when tackling you are competitive. If red card, it is outside the rules of the game. So in summary, it reached the standard the breach. Causation: BROKEN LEG Factual causation: ‘but for’ test (Barnett v Chelsea and Kensington Hospital and Cork v Kirby). But for Lampoon colliding with Farrer, Farrer would not have broken his leg. Legal causation: In terms of the damages for Farrer entering his car, act of claimant broke the chain of causation, there is no novus actus interveniens that could apply in this case. (McKew v Holland and Hannen and Cubitts (Scotland) Ltd) BROKEN ARM Factual causation: ‘but for’ test (Barnett v Chelsea and Kensington Hospital and Cork v Kirby) applies. But we can assume this, and move on to legal causation. Legal causation: Is it unreasonable enough for novus actus? – Yes/ No If answer is no, is it enough for contributory negligence? May be based on court’s discretion Legal causation: Remoteness: Applying the test of reasonable foreseeability (The Wagon Mound). The defendant, Lampoon, ought to have seen the damage suffered to the claimant, Farrer, where he broke his leg (sustained a personal injury) (Page v Smith)

Type of kind of harm – foreseeable personal injury. Extent and way does not have to be foreseeable (see case studies) Defences BROKEN LEG No defences for broken leg BROKEN ARM Consent/ volenti – only consent to non-negligently performed surgery; but this is consent to risk. Pre-existent relationship between claimant and defendant Jones v Linox s.1.1. Law Reform Contributory Negligence Act 1995. 1. The claimant failed to take reasonable steps for their own safety; and 2. This failure contributed to the claimant’s damage 3. Injury was in the type of risk runned by claimant. Defences: Morris v Murray – arguably acknowledged the extent of the risk by engaging in the sport? Contributory negligence can be argued for him entering the car. Think freely on arguments in between for higher marks. Parties: Lampoon v Buckham Tort: Negligence Loss: Personal Injury/Death Duty of Care: Yes, driver owes a duty of care (Nettleship v Western) However, Dickson v Hunt – courts question this where there is a criminal activity is taken on at the root of the negligence. Standard of Care – hard when criminal use nettleship v Breach: Causation BRAIN Factual Causation: But for Buckham crashing the car, he would not have suffered an injury. Legal Causation: Telling him to drive faster( Holand) if not enough back to contributory negligence Two injuries: Brain and suffered in crash – so separate. SUICIDE Corb v IBC – not break chain of causation Remoteness BRAIN INJURY Foreseeable personal injury as the type of harm – brain injury (Page v Smith). Manner or extent may not be reasonably foreseeable.

SUICIDE Reeves case. DEFENCE Arguably egging him on is contrib. Seatbelt (Hutcher) – the fact he didn’t know about the seatbelt, would not have made a difference to him. Only on the basis of the crime of drink driving, they had not yet completed the robbery so there is no gun at the moment. Ex turpi – defence of claim. This circumvents the effect of s.149 RTA but: Also be aware of volenti – can argue this however s.149 of RTA 1988 says you cannot raise this against a passenger if you are the negligent driver.

Court for policy reasons may go through one way partial defence – you can deal with fault, breach and give justice to the claimant also. The maxim ‘ex turpi causa non oritur actio’ means ‘no action may be based on an illegal cause’ and appears to rest on the idea that the courts will not help/compensate a claimant where it would be ‘an affront to the public conscience’ to do so, and might encourage the claimant, or others, to participate in illegal activities. Basically, it operates to deny compensation to a wrongdoer. The principle is based on public policy considerations and there is uncertainty in both its application and justification. Again, it is a complete defence (just as volenti). It generally applies to criminals. For example, in Ashton v Turner [1981] QB 137, compensation was denied to a passenger injured by his getaway driver after they had both been involved in a burglary. Therefore, this would not act as a defence as he was in pursuance of economic activity.

Contributory negligence as he encouraged him to drive?

When it comes to property, you can insure against the risk – so it is important to allocate value accurately in society. The type/kind of harm must be reasonable foreseeable, the way and extent need not be. Property damage may need to be more specific. Argue both sides...