UoL Intro to Tort_ch1to4

Law of Tort

Ian Yeats

Paula Giliker

Mary Luckham

2005 LLB 2660001 BSc Accounting with Law / Law with Accounting 2770201

BSc Management with Law / Law with Management 2770201

University of London External Programme 2

This subject guide was prepared for the University of London External Programme by:

Ian Yeats, MA (Aberdeen), BCL, MA (Oxford), Barrister, Senior Lecturer in Law, Queen Mary College, University of London.

Paula Giliker, MA (Oxon), BCL, PhD (Cantab), Barrister at Law, Fellow and Senior Law Tutor, St Hilda's College, Oxford.

Mary Luckham, LLB, Assistant Director, University of London External Laws Programme.

This is one of a series of subject guides published by the University. We regret that owing to pressure of work the authors are unable to enter into any correspondence relating to, or arising from, the guide.

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Contents

Chapter 1 Introduction 5

Chapter 2 Negligence: basic principles 13

Chapter 3 Negligence: duty of care and breach of duty 17

Chapter 4 Negligence: causation and remoteness of damage 31

Chapter 5 Negligence: special problems 51

Chapter 6 Negligence: particular relationships 75

Chapter 7 Breach of statutory duty 89

Chapter 8 Particular statutory regimes: strict liability 99

Chapter 9 Intentional injuries to the person 119

Chapter 10 Interference with economic interests 139

Chapter 11 The law of nuisance and the rule in Rylands v Fletcher 151

Chapter 12 Defamation 175

Chapter 13 Miscellaneous 201


Chapter 1 Introduction

Contents

Introduction 5

1.1 Definition, aims and functions of tort 6

1.2 Sources 7

1.3 Recommended reading 9

1.4 How to use this subject guide 10

1.5 The examination 10

Introduction Tort is a branch of the civil law (as opposed to criminal law) based on a claim that the defendant has caused injury or loss to the claimant by breaking a relevant obligation imposed by the general law. This definition tells you nothing about what conduct is tortious. You will understand that only when you know what counts as injury or loss and what obligations the law imposes. Very broadly, tort law is one of the methods by which people who have suffered injuries are compensated. It deals with whether losses should lie where they fall or should be transferred to someone thought to be ‘to blame’ (not necessarily in a moral sense) for what has happened. Of course the person ‘to blame’ will often be insured or will be a large company or government department and so the losses will often be spread more widely. For example, when a person is injured by a careless motorist, the motorist’s insurance company will pay the damages and the ultimate costs of the accident will fall on the general community who pay insurance premiums.

Broadly speaking, the law of tort took its present shape in the nineteenth century although of course it has developed considerably since then. Those interested in a historical introduction may refer to Lunney and Oliphant pp.1–17; Winfield and Jolowicz pp.44–50.

Objectives of this subject guide

By the end of this subject guide, you should be able to:

� describe the relationship between tort and certain other branches of law

� explain the relationship between different torts and the bases of liability in each tort

� identify the principal policy difficulties with the contemporary law of tort

On the impossibility of a definition of tort

see Murphy (2003) p.3: Winfield and

Jolowicz (2002) p.4; on the aims or

functions of tort see Winfield and Jolowicz

(2002) pp.1–17; Markesinis and Deakin

(2003) pp.1–7 and 37–41.

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6 University of London External Programme

� identify and describe the sources of law relevant to tort.

1.1 Definition, aims and functions of tort

1.1.1 Structure of tort

There is no single principle of tort law but a series of different torts with different origins and purposes They protect a number of different interests against different kinds of interference (usually by compensation for the consequences – that is, damages; but sometimes by an order to stop – that is, an injunction).

In studying each tort (and even each element in each tort) you should ask yourself:

� what interests are being protected

� and against what sorts of interference (see below).

For example, the tort of defamation (see Chapter 12) protects the distinct interest of reputation: in respect of some elements liability is strict and in respect of others liability depends on proof of fault.

What interests are protected by the law of tort?

The law of tort protects to different degrees and in different ways the physical integrity of the person, property interests, reputation and economic interests. There are arguments about how far it should protect other interests, such as a person’s right to privacy. In many torts material damage has to be caused before there can be an action. In others there is no need for material damage to the claimant, but one of the claimant’s rights has been interfered with. It is for instance an actionable tort deliberately to touch another person (subject to many defences) even though no damage is caused (see Chapter 9) and to defame someone in writing even though no damage is caused (see Chapter 12). In such cases the tort is said to be actionable per se (i.e. in itself).

What kind of conduct by the defendant accompanied by what kind of mental state is tortious if it produces an invasion of a relevant interest? Liability may be:

� strict (e.g. consumer protection legislation): liability does not depend on proof of fault on the defendant’s part

� based on negligence by defendant

� based on intentional conduct by defendant

� based on the ultimate motive or purpose of the defendant (rare in English law).

Relations between tort and other forms of liability

Some tortious conduct is at the same time illegal in some other sense (e.g. criminal): a person who deliberately strikes someone else commits both a tort and a crime. But tort and other forms of illegality do not wholly coincide. Some action is tortious but is not criminal or illegal in any sense other than being tortious: conversely some conduct is illegal (e.g. criminal or unlawful in a public law sense) but is not tortious even if it causes loss or damage (this point is developed more fully in Chapter 7).

The relationship between tort and breach of contract is also of interest. The distinction between the two has usually been

Note: ‘tortious’ is pronounced ‘torshus’.



explained in this way. Tort involves the breach of an obligation imposed by the general law (if I knock you down by carelessly driving my car, I am liable to compensate you because the law imposes a duty to drive carefully and not because I have promised you that I will do so). Breach of contract involves the breach of an obligation voluntarily undertaken by the person in breach (if I fail to deliver the car that you have bought from me, I am liable to compensate you because I have failed to carry out my promise). This distinction is however not watertight. In particular in recent decades a whole area of tort law has developed based on a voluntary assumption of responsibility (see liability for mis-statements in Chapter 5) and this has blurred the traditional distinction between tort and contract.

1.1.2 Policy questions

You should consider as you study this subject a number of policy questions related to the purposes to be served by the law of tort. Examples are:

� How should the law of tort relate to alternative sources of compensation? (See Winfield and Jolowicz pp.20–43 and Markesinis and Deakin pp.44–54.) The main sources are the social security system and insurance either by potential claimants (e.g. life insurance) or by potential defendants (e.g. car insurance). You are not expected to know the details of these systems but their existence affects (and perhaps should affect more) the content of tort law, and the relation between different sources of compensation is relevant to the calculation of damages (see Chapter 13).

� How far should liability be based on fault? (See Markesinis and Deakin pp.41–44).

� To what extent should public bodies be liable for failures in regulatory systems? (See Chapter 5).

1.2 Sources In your study of this subject, you will have to consider the following sources of law.

Cases

Most of the law of tort is judge-made and is to be found in reported cases. This process is continuing and you should think about the direction in which the courts are moving as well as the content of decided cases (see, for example, the developments in relation to economic loss, in Chapter 5). In answering a question, as in advising a client or employer, you have to be able to judge how a court might decide a future case as well as describing what has been decided in past cases. You should also consider how appropriate judge-made law is as a source of new developments. Compare the willingness of the courts to be creative in relation to economic loss (see Chapter 5) and their refusal to be so in relation to environmental protection (see Chapter 11). Some cases are merely illustrations and applications to particular facts of well-established principles: they can be used as illustrations in handling problem questions in examinations. Other cases are the source of important principles: the judgments are discursive, discuss issues of

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policy and suggest lines of development for the future. These cases have to be studied with more care. The ability to identify important cases increases with experience, but you can be guided by the way in which particular cases are discussed in the textbooks.

Statutes

Some statutes replace or partly replace areas of the common law (e.g. Occupiers’ Liability Acts 1957 and 1984); some provide additional protection over a wide field (e.g. Consumer Protection Act 1987); some effect minor amendments only.

Impact of European Community law

The impact has been slight on the law of tort. The Consumer Protection Act 1987 gives effect to a Community directive and there is potential for development in employers’ liability and environmental protection. The tort of breach of statutory duty (Chapter 7) might be developed to provide remedies for certain infringements of community law.

Impact of the Human Rights Act

The Human Rights Act 1998 gave effect in domestic law to the European Convention on Human Rights (ECHR) with effect from October 2000. It is now a much more pervasive source of the law of tort than is Community law. You will be familiar with the general principles of the ECHR from your study of the British Constitution. You will find references to the ECHR at various points in this guide. It is convenient to set out now some relevant general principles: in some respects the ECHR has introduced new ways of thinking into the domestic law.

(a) Section 6 of the Human Rights Act 1998 makes it unlawful for a public authority to act in a way which is incompatible with a Convention right. This section therefore has its greatest impact where the defendant to a tort action is a public authority such as a local council.

(b) The courts are however themselves public authorities: they therefore have to take account of the ECHR in developing the law even in tort actions between private citizens or private bodies such as companies to ensure that the United Kingdom is not in breach of the ECHR. This is perhaps most obvious in relation to the tort of defamation (Chapter 12) and Art 10 ECHR (freedom of expression).

(c) The ECHR is based on a series of Convention rights of a general kind that have to be respected. This is an unfamiliar kind of classification in English law. In order to provide compensation for an interference with Convention rights the courts may do one of the following:

� They may apply an existing tort. If a public authority in England kills someone (contrary to Art 2) or tortures someone (contrary to Art 3) this plainly falls within the existing English law of tort.

� They may modify an existing tort. For example, Art 2 requires the state to provide protection against being killed and Art 3 requires the state to provide protection against inhuman and degrading treatment. An existing English tort may have to be



modified in order to provide the necessary protection. See in particular Chapter 5.

� They may create a new right of action in damages: this is analogous to the existing tort of breach of statutory duty. This is discussed more fully in Chapter 7. It should be noted that section 8 of the Human Rights Act 1998 provides that a person is not entitled to an award of damages merely because a public authority has acted unlawfully under the ECHR, and the court has a discretion to decide whether an award is necessary in a particular case.

1.3 Recommended reading There are several textbooks of different lengths on the law of tort. It is suggested that you use at least one of these:

� Markesinis and Deakin Tort Law. (Oxford: Clarendon Press, 2003) fifth edition [ISBN 0199257124 (hbk); 0198762933 (pbk)].

� Murphy, J. Street on Torts. (London: Butterworths, 2003) eleventh edition [ISBN 0406946825].

� Rogers, W.V.H. (ed.) Winfield and Jolowicz on Tort. (London: Sweet & Maxwell, 2002) sixteenth edition [ISBN 0421768606].

These are quite lengthy and explore topics in greater depth and with more background than is essential, and also cover topics which are not included in your syllabus. Reference may also be made to:

� Howarth, D. Textbook on Tort. (London: Butterworths, 2004) second edition [ISBN 0406959463].

Useful collections of cases and materials:

� Hepple, Howarth and Matthews Tort: cases and materials. (London: LexisNexis, 2000) fifth edition [ISBN 0406063265].

� Lunney, M. and K. Oliphant Tort Law; Text and Materials. (Oxford: OUP 2003) second edition [ISBN 0199260559].

� Weir, T. A Casebook on Tort. (London: Sweet and Maxwell, 2004) tenth edition [ISBN 0421878800].

Shorter and/or more introductory books include:

� Giliker, P. and S. Beckwith Tort. (London: Sweet and Maxwell, 2004) second edition [ISBN 0421859806].

� Mullis, A. and K. Oliphant Torts. (Basingstoke: Palgrave Macmillan, 2003) [ISBN 0333963792].

� McBride, N. and R. Bagshaw Tort Law. (Harlow: Longman, 2005) second edition [ISBN 027368678X].

These give an overview of the subject and its role but are not sufficiently detailed to serve as textbooks. A stimulating socio-legal work which addresses many of the policy issues (see ‘Policy questions’ on page 7) is:

� Cane, P. Atiyah’s Accidents, Compensation and the Law. (Cambridge University Press, 2004) sixth edition [ISBN 0521606101].

although it is not suitable as a textbook.

Law of tort


It would be sensible to buy one of the standard textbooks referred to and, especially if you do not have access to a library, one of the casebooks. Many cases are decided each year on this subject: you will find helpful notes on recent cases in the leading academic journals such as:

� the Modern Law Review (MLR)

� the Law Quarterly Review (LQR)

� the Cambridge Law Journal (CLJ).

These journals may also contain general articles of interest. Judges increasingly make reference to such articles in developing principles in new or difficult areas of law. Such articles also frequently draw attention to the way in which particular problems are dealt with in other countries with similar problems.

1.4 How to use this subject guide This subject guide is not a textbook or even an introduction to the subject. It is intended to direct you through the subject and to give an indication of how to tackle each topic. It would be sensible to read through each chapter of this guide to identify the main topics with which it deals and any particular problems or policy issues and then to read the relevant sections in the textbooks. More detailed guidance is given in the chapters of this subject guide where the law is in a state of development than in those where the law is fairly well settled. You should be able to identify from this reading the most important cases in more detail (see also under ‘Sources’ on page 7). The cases in this guide are not necessarily listed in order of importance: there are of course many more relevant cases than are referred to here.

The introductory chapters of the books (and this chapter of the guide) deal with a number of issues. It is not wise to try to learn these at once. These should be read quickly now so as to get an idea of what the subject is about: some questions can be identified (see ‘Policy questions’ on page 7) which should be kept in mind as the substance of the subject is studied. The introductory chapters should be considered more carefully when the whole subject has been digested; then, some of the issues raised will make more sense.

1.5 The examination Important: the information and advice given in the following section are based on the examination structure used at the time this guide was written. However, the University can alter the format, style or requirements of an examination paper without notice. Because of this, we strongly advise you to check the instructions on the paper you actually sit.

You are likely to be asked to answer four questions in the examination from a selection of about eight. They are of two kinds.

Problem questions

You will be given a set of facts and either asked to advise one or more of the characters or to discuss issues of tortious liability which

Most important

Examination questions DO NOT ask you to

write down everything you know about a

topic.

Your aim should be to answer the

questions that the examiners have asked,

and use only material relevant to those

questions.



arise. You must avoid simply identifying the subject matter of the problem (for example, ‘negligent mis-statements’) and writing all you know about it. Before writing, you should analyse the facts carefully to work out the relation between the parties and the legal issues to which they give rise. You can then select the legal principles which are relevant and marry the facts and the legal principles into a logically structured answer. You do not literally set out your answer in the form of advice but you must remember that you are solving a problem and not simply writing an account of a particular area of law. Most problems contain at least some issues where the law is not entirely clear; you have to identify these and suggest the solution to which you think a court will be likely to come and give your reasons for doing so. Problem questions seldom relate only to material in a single chapter. You may expect to have to answer questions that involve more than one tort or involve issues that are discussed in different chapters. In this guide specimen questions are not found at the end of every chapter.

Essay questions

Such questions rarely ask for a straightforward account of a particular topic. They ask you to write critically about a particular topic, to compare one topic with another, to suggest reforms and improvements, to analyse the reasons which lie behind particular areas of law and so forth.

In both kinds of question the most common error is irrelevance. You must identify the precise issues(s) raised and direct your answer to it (them).

Example of an examination question

‘The role of strict liability in the law of tort should be greatly increased.’

Discuss.

You can look at previous years’ exam questions and examiners’ comments on them in the University of London External Programme Laws web site.

Why ‘critically’?

Because the examiners want to see if you

understand the subject well enough to

write about it as a lawyer would –

sometimes a particular point of view has

to be argued and sometimes you have to

write from both sides of the issue.

Law of tort


Notes


Chapter 2 Negligence: basic principles

Contents

Introduction 13

2.1 Structure of the tort 13

2.2 Organisation of the chapters 14

2.3 Policy questions 14

Introduction Negligence is the most important modern tort: its study should occupy about half the course. It is important because of the great volume of reported cases and because it is founded on a principle of wide and general application. This chapter explains the basic structure of the tort and describes the organisation of the material in subsequent chapters.

Learning outcomes

By the end of this chapter and the relevant readings, you should be able to:

� understand that the tort of negligence is structured on the concepts of duty of care, breach of duty and resulting non-remote damage

� indicate some of the social and policy questions that have influenced the development of the tort of negligence.

2.1 Structure of the tort Negligence of course means carelessness, but in 1934 Lord Wright said:

‘In strict legal analysis, negligence means more than heedless or careless conduct, whether in omission or commission: it properly connotes the complex concept of duty, breach and damage thereby suffered by the person to whom the duty was owing.’ (Lochgelly Iron and Coal Co v McMullan [1934] AC 1 at 25)

This sentence encapsulates the traditional tripartite structure of negligence as a tort. It is not enough to show that defendant was careless: the tort involves a breach of duty that causes damage that is not too remote. Each of the emboldened words will in due course require detailed examination. The successful claimant in a negligence action must establish three propositions:

(a) that the defendant owed the claimant a duty of care. The claimant will in some circumstances be the only person to whom the duty was owed (a surgeon and patient for example): in others

Law of tort


the claimant will be a member of a very large and possibly ill-defined class of persons to whom the duty was owed (a car driver and other road users).

(b) that the defendant broke the duty of care. This means that the defendant’s conduct fell below the standards that the law demands.

(c) that as a result of the breach the claimant suffered damage of a kind that the law deems worthy of compensation.

However these propositions are not rigidly separate. They are convenient for the purpose of explaining the law, but they overlap to a great extent. Occasionally, but not very often, a court will indeed explicitly organise its judgment under these three headings. There is an example in Al-Kandari v Brown [1988] QB 665, referred to in Chapter 4. In other cases however a judge might on the same set of facts deny liability on the grounds that no duty was owed and another deny liability on the grounds that, although a duty was owed, it had not been broken. An issue such as the scope of liability for economic loss has sometimes been regarded as part of the duty question and sometimes as part of the remoteness of damage question. You will find other examples where a single set of facts can be analysed in different ways.

2.2 Organisation of the chapters Negligence is now a tort of great size and complexity. Most textbooks set out the questions of duty, breach, causation and remoteness in that order. This often means that some of the most complex issues are dealt with at great length under the heading of ‘duty of care’. Other textbooks are organised differently.

In the chapters that follow in this guide the material on negligence is organised in the following way:

� Chapters 3 (duty and breach) and 4 (causation and remoteness of damage) offer a general overview of the tort of negligence, illustrated mainly, but not exclusively, by cases involving careless conduct giving rise to death, personal injuries or damage to property.

� Chapter 5 deals with more complex areas that have been the subject of much litigation in recent decades: liability for careless advice or information; liability for psychiatric injuries and for purely economic damage; liability for failures to take action to avoid harm; liability for failures of supervisory or regulatory functions.

� Chapter 6 deals with the liability of two particular categories of defendants: that of occupiers towards those on their premises, and that of employers towards their employees.

2.3 Policy questions The law of negligence has undergone enormous change and development in the past 50 years. Mostly this has involved an expansion of liability, but quite often the courts have retreated and cut back on the extent of liability. This in turn leads to inconsistency and uncertainty. The reasons for this are complex, but they have in part to do with conflicting policy objectives. The

Chapter 2 Negligence: basic principles


importance of understanding these policy objectives and the way that they are contributing to the development of the law was explained in Chapter 1.

Here are some of the most important philosophical and policy issues that you should keep in mind and refer to as you prepare the material in the next four chapters.

� The underlying idea in a negligence action is very simple. If the claimant’s injuries result from behaviour that falls short of socially acceptable standards, then there should be compensation. If they do not, then the victim should bear the loss without compensation. Since carelessness is not generally criminal, the tort of negligence is the means by which the law attaches consequences to unacceptable behaviour. Lord Diplock once described negligence as the ‘application of common sense and common morality to the activities of the common man’ (Doughty v Turner Metal Manufacturing Co [1964] 1 QB 518, noted in Chapter 4). In a number of recent cases the House of Lords has based its conclusions for or against liability by reference to what people generally would regard as fair. See for example Alcock v Chief Constable of South Yorkshire (Chapter 5) and Rees v Darlington Memorial Hospital NHS Trust [2003] UKHL 52, [2004] 1 AC 309 (Chapter 3). The public view of what is fair may change over time. One question to consider is how far the law correctly reflects a public sense of fairness.

� One consequence however of the emphasis on fault is uncertainty. It may be difficult to get agreement as to whether the defendant was careless, and entitlement to substantial compensation may depend on the strength of the evidence before the court or (since all except a very tiny proportion of negligence claims for personal injuries are settled by negotiation or agreement) the strength of the bargaining positions of the parties. The ability to obtain compensation may also depend on the financial resources available to the defendant. A high proportion of successful claims are in areas (medical, road and industrial accidents for example) where defendants are either rich or are insured.

� One purpose of the tort might be thought to be to enforce standards of good behaviour: to deter people from being careless. In many situations the deterrent effect is limited. Car drivers are likely to drive carefully because of a fear of death or injury, or of prosecution resulting in fine or imprisonment. Fear of a civil action for damages hardly figures, since the damages will come from an insurance company (although admittedly the driver may find insurance more expensive or even impossible in future).

There is a way in which liability in negligence does indeed affect behaviour and may force defendants in ways that are arguably not to the general benefit. Courts are increasingly aware of the so-called ‘compensation culture’, the desire to identify someone who is able to pay for injuries. The fear is that there will be a defensive reaction that drives out many socially useful activities. Schools may stop arranging excursions for pupils for fear of claims by injured pupils. Institutions such as homes for the elderly or nurseries for children may close if the costs of liability insurance

Law of tort


become prohibitive. There may be other defensive consequences. Family doctors may refer too many healthy patients to specialists to protect themselves against negligence claims, thereby adding to the costs of the health service and delaying appointments for patients in need of specialist services. As a recent example of a judicial fear of the compensation culture, see Tomlinson v Congleton Borough Council [2003] UKHL 47: [2004] 1 A.C. 46 (Chapter 6).

Activity 2.1

Write down brief notes on what Tomlinson v Congleton Borough Council [2003] tells you about the effects of compensation culture.

You will return to this case in Chapter 6: you will find an easy introduction to the ideas of compensation culture in the speech of Lord Hoffmann.

Conclusion

You should bear the contents of this chapter, particularly the policy issues that keep arising in negligence claims, as you study the chapters that follow.


Chapter 3 Negligence: duty of care and breach of duty

Contents

Introduction 17

3.1 Duty of care 17

3.2 Functions of the duty concept 19

3.3 Breach of duty 23

Introduction This chapter introduces the first two elements in establishing an action in the tort of negligence. Did the defendant owe the claimant a duty to take care? Was the defendant in breach of that duty?

Learning outcomes

By the end of this chapter and associated readings, you should be able to:

� explain the concept of duty of care and its purposes

� identify the various tests that have been suggested for the existence of a duty of care

� discuss the duty concept in the context of some particular situations, namely, controlling others, duty of lawyers and duty to unborn children

� describe the standard of care required of defendants both in general and in respect of particular skills

Essential reading

� Markesinis and Deakin, pp.85–95, 167–184

� Murphy, pp.171–181, 231–263

� Winfield and Jolowicz, pp.103–134, 190–208

� Lunney and Oliphant, pp.90–100, 107–129, 139–187.

3.1 Duty of care The duty of care concept has at least two purposes. The first is to provide an overall framework for the huge variety of situations in which liability may arise. For centuries the law has recognised relationships in which one person owes a duty to another. What was lacking was a general principle of which the various cases

Law of tort


were illustrations. The second purpose is one of limitation, setting the boundaries within which one person could be liable to another for the consequences of careless behaviour.

3.1.1 Finding a general test

A number of attempts have been made to expound such a general test. We will look at four of the most influential.

a. The neighbour principle

Donoghue v Stevenson [1932] AC 562 was important in two respects.

� First, by a majority, the House of Lords recognised a new relationship as giving rise to a duty of care, that between manufacturers and the ultimate consumers of manufactured products (in this particular case a bottle of ginger beer). This is sometimes called the narrow rule in Donoghue v Stevenson: it still survives but has in practice been superseded by a new kind of liability established in the Consumer Protection Act 1987 (see Chapter 8).

� Secondly, Lord Atkin enunciated a broad principle of liability. A duty was owed to ‘persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected…’ He described such people as ‘my neighbours’: so his definition of the duty is called the ‘neighbour principle’.

b. A revised test

There were many developments in the law of negligence in the years following that decision. These led Lord Wilberforce to redefine the neighbour principle. He turned it into a two-stage test in Anns v Merton London BC [1978] AC 728 at 751.

The first question was whether there was a sufficient relationship of proximity or neighbourhood such that in the reasonable contemplation of the defendant carelessness on his part may be likely to cause damage to the claimant. If so, a prima facie duty of care arose. The second question was whether there were any considerations which ought to negative or reduce or limit the scope of the duty of care or the class of persons to whom it was owed.

This test came under criticism in the following years as being too expansive and indeed the Anns case was itself overruled in 1991 (see Chapter 5).

c. The current test: foresight, proximity and fairness

The test is now stated in this form. The claimant has to show three things if there is to be a duty of care:

� It was reasonably foreseeable that a person in the claimant’s position would be injured.

� There was sufficient proximity between the parties.

� It is fair, just and reasonable to impose liability.

There is no single case identified with this test, but one of its best expositions is in Caparo Industries v Dickman [1990] 2 AC 605. There is a particularly helpful discussion of the test by Bingham LJ in the Court of Appeal in the same case: Caparo Industries v Dickman [1989] QB 653 at 678-680. Notice that the decision of the

Four tests:

•�The neighbour principle

•�A revised test (Lord Wilberforce)

•�The current test: foresight, proximity and

fairness

•� An alternative test: assumption of

responsibility

‘BC’ = Borough Council, an administrative

division, particularly in London.



Court of Appeal in that case was overruled by the House of Lords. For details, see Chapter 5.

These three tests are very similar. In particular, notice that:

� They are very general. It is possible to understand what they mean in practice only after studying a number of illustrative cases.

� Policy considerations are explicit in the second and third tests, but are implicit in Lord Atkin’s test as well. Notice his use of ‘ought’ and ‘reasonably’. There is a large moral component to his test. It is not just about what can be foreseen, but about what ‘ought’ to be foreseen.

� These tests are of most use when the law is uncertain. These are concepts that judges use when deciding whether or not a duty of care ought to be recognised in new situations. Once a duty situation is recognised, the test in a sense drops out of the picture. So, in an examination context, there is no need to go through the Caparo test unless either the situation is a novel one, where there are no clear precedents, or you are trying to argue that the law ought to be changed (as was done by the House of Lords in respect to the liability of lawyers; see below at page 21). If the question you are answering is about a motorist knocking down a pedestrian, the duty of care is established by many previous cases and there is no need to go through the tests for establishing a duty afresh.

d. An alternative test: assumption of responsibility

For some purposes, an alternative test has been developed, namely whether there had been a voluntary assumption of responsibility by the defendant for the claimant. This test is particularly used in cases of liability for omissions, for mis-statements and for economic loss as discussed in Chapter 5.

3.2 Functions of the duty concept Traditionally the duty concept has been seen as serving two separate functions:

� Is there a duty at the abstract level (the notional duty or duty in law): e.g. does a motorist owe a duty of care to other road users? Or do barristers owe a duty of care to their clients?

� Is the particular claimant within the scope of the duty of care (duty in fact or the problem of the unforeseeable claimant): e.g. was this particular road user owed a duty by this particular motorist?

Notice that many commentators prefer to treat the second question – duty in fact – either as a matter of breach of duty or as a matter of remoteness of damage.

Some cases then are clear. Users of machinery, etc., on the roads, on building sites, in workplaces owe a duty of care to those likely to be affected. So do doctors, nurses, dentists, hairdressers, etc., providing services to the public. Below there is a series of illustrations of the application of the concept of duty of care, in situations where there has been doubt. More complex and developing examples are discussed in Chapter 5.

Law of tort


3.2.1 Duty at the abstract level

Is there a duty to prevent X injuring C?

An important problem is how far the defendant owes a duty to stop or prevent another person (X) injuring the claimant. This can be illustrated thus:

Examples of this problem would include the following:

a. Should a school (or a parent) owe a duty of care to passing motorists to see that a child does not run out of the school and cause an accident?

b. Should a host at a party owe a duty of care to prevent a guest driving home drunk and injuring a pedestrian?

c. Should a car owner owe a duty of care to keep it locked up to prevent a thief stealing it and knocking down a pedestrian?

In the diagram above X is the child, the guest and the thief.

As a general rule English law does not impose a duty, reasoning that the fault is that of X and not that of D. But exceptionally a duty may arise. In deciding whether a duty of care arises, it is relevant to ask:

� What is the relationship between X and D? Does D have some responsibility over X?

� What is the relationship between C and D? Does it involve some obligation on D’s part to protect C against harm?

See Home Office v Dorset Yacht Co [1970] AC 1104; Carmarthenshire County Council v Lewis [1955] AC 549; Topp v London Country Bus (South West) Ltd [1993] 1 WLR 976; Attorney-General of British Virgin Islands v Hartwell [2004] UKPC 12: [2004] 1 WLR 1273.

The issues discussed in this paragraph are similar to, and overlap with, issues discussed later in this guide: (a) whether the act of X

Conduct causing damage

X (Third party)

D (Defendant)

C (Claimant)

Proposed

action



amounts to a new and intervening cause breaking the link between C and D (see Chapter 4); (b) whether D can be liable for an omission to act where he fails to take steps that would prevent X from causing harm (see Chapter 5).

The issues discussed in this paragraph must be distinguished from the question of vicarious liability (see Chapter 13). This paragraph concerns the primary liability of defendants for their own tort in failing to control others. In vicarious liability the defendant is liable for a tort committed by someone else. In the Dorset Yacht case both ideas are present. The Home Office were vicariously liable for the torts of the borstal officers. But the borstal officers were not vicariously liable for the torts of the boys: they were primarily liable for their own torts in allowing the boys to escape and cause harm. In the Hartwell case both vicarious liability and primary liability were considered as alternative causes of action.

A very similar problem arises where in effect C and X are the same person. In the examples given on page 20 would the school, host or car owner owe a duty of care to the child, guest or thief? How far should defendants have to protect claimants against their own folly? Of course there are many cases where the defendant has specifically accepted responsibility for the safety of others, but the principle may extend further than that. See: Jebson v Ministry of Defence [2000] 1 WLR 2055.

Duties of lawyers

Lawyers of course owe a duty of care to their clients, but until recently it was thought that no duty was owed by barristers (and later solicitors also) in respect of work closely connected with the presentation of their case in court. Putting it in terms of the Caparo test, it would be said that, while there was foresight and proximity, it was not fair, just and reasonable to impose liability.

The House of Lords has now decided that in contemporary conditions there are no policy reasons sufficient to justify this immunity and it should be abolished: Arthur J. S. Hall v Simons [2002] 1 AC 615.

The circumstances in which a duty is owed and the scope of the duty are considered by the House of Lords in Moy v Pettman Smith (a firm) [2005] UKHL 7: [2005] 1 WLR 581.

Activity 3.1

Examine the reasoning of the House of Lords in Hall v Simons. What policy reasons previously were thought to justify the immunity? Why are those policy reasons no longer thought enough to justify it?

Feedback: see page 29.

Duty of care to unborn children

A doubt as to whether the common law recognised a duty of care to unborn children in respect of damage done before birth was resolved by statute: the Congenital Disabilities (Civil Liability) Act 1976. The Act originally envisaged a child being born with

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disabilities as the result of damage to the mother (or sometimes the father) occurring during pregnancy or sometimes before conception. Typical examples were physical injuries to a pregnant woman in, say, a car crash, or the side effects of drugs. It had to be amended in the light of advancing medical technology to deal with damage to stored sperm or eggs: Human Fertilisation and Embryology Act 1990.

These Acts impose liability only where the damage caused the disability from which the baby suffers when it is born. They do not allow an action where the negligence caused the baby to be born, but did not cause the disabilities. A doctor may, for example, negligently carry out a sterilisation procedure on either a man or a woman, or may fail to recommend an abortion: any child born as the result of this negligence has no claim.

These ethical reasons do not apply where the claim is by the father or mother (or both) who have to bring up the child. For a time the courts seemed likely to allow such claims. The ethical issues (together with a wide-ranging review of how these issues are decided round the world) are discussed:

� where the child is healthy and is being raised in a loving family (McFarlane)

� where the child is disabled (Parkinson)

� where the child is healthy but the mother did not want children because of her own disability (Rees).

See McFarlane v Tayside Health Board [2000] 2 AC 59; Parkinson v St James and Seacroft University Hospital NHS Trust [2001] EWCA Civ 530: [2002] QB 266; Rees v Darlington Memorial Hospital NHS Trust [2003] UKHL 52: [2004] 1 AC 309.

Novel situations

Other examples of cases where the courts have had to decide in novel situations whether they should hold that there was a duty of care are: Mulcahy v Ministry of Defence [1996] QB 732 (liability of injuries to soldiers on active service; Vowles v Evans [2003] EWCA Civ 318: [2003] 1 WLR 1607 (liability of rugby referee to injured player).

3.2.2 Scope of the duty of care

Even if the defendant owed a duty of care to some people, there remains the question of whether the particular claimant was within the scope of that duty. See Bourhill v Young [1943] AC 92; Palsgraf v Long Island Railroad Co (1928) 248 NY 339; Haley v London Electricity Board [1965] AC 778: Urbanski v Patel (1978) 84 DLR (3rd) 650; Goodwill v British Pregnancy Advisory Service [1996] 2 All ER 161.

In the last case (Goodwill) the points made about the woman claimant’s position are still of interest, although the court’s assumptions about the position of her partner have been undermined by the cases referred to in 3.2.1.

You should think about the ethical reasons

for the child’s inability to claim negligence

and for the reluctance in most cases to

allow the parents to claim.



Activity 3.2

(a) How do the tests of a duty of care in Donoghue v Stevenson, Anns v Merton London Borough Council and Capro Industries v Dickman differ? In what respects are they similar?

(b) D is gardening at the front of her house. She goes into the house to pour herself a drink and leaves a spade lying in the garden. X, a passer-by, picks it up and attacks C, D’s neighbour. Is D liable to C? (In answering this question, think about various possibilities as to who X is, which might affect your answer.)

(c) To what extent is there (and should there be) liability: (i) if a person negligently injures a pregnant woman and the child is born dead (ii) a doctor negligently fails to identify a risk that a foetus has been damaged and does not suggest an abortion: the child is born disabled (iii) a mother takes drugs throughout pregnancy: the child is born with a severe problem of drug dependency.

(d) Clarissa thinks that she may be pregnant and consults a pregnancy advisory service. They confuse her records with those of another client and inform her that she is not pregnant. By the time she discovers that she is pregnant, it is too late for an abortion. Advise her.


Summary

There is no liability in negligence unless there is a duty to take care. This establishes the necessary link between the claimant and the defendant. Such duties are widely recognised. In cases of doubt the modern test is whether there was foreseeability and proximity and it was fair, just and reasonable to impose the duty.

3.3 Breach of duty The next question is whether there has been a breach of the duty of care. Has the defendant actually been negligent?

As a practical matter, this is very important. It will often be a major issue between the claimant’s advisers and the defendant’s advisers or insurers in attempting to reach a settlement. If there is a trial, much time may be spent on deciding what actually happened and whether that amounted to negligence on the defendant’s part. In that end this is a question of fact. It is however a question of fact that has to be answered within a structure of legal rules. You cannot be expected to decide in an examination answer whether or not the defendant was in fact negligent, but you can be expected to identify in a question the respects in which the claimant could argue that the defendant has been negligent and also explain how the question will be approached within the structure of legal rules.

3.3.1 The basic rule

The basic rule is that the defendant must conform to the standard of care expected of a reasonable person.

‘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 doing something which a

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reasonable and prudent man would not do.’ (Blythe v Birmingham Waterworks (1856) 11 Exch 781)

Ordinary person in ordinary circumstances

One of the few cases in which the House of Lords has had to consider the behaviour of an ordinary person in ordinary circumstances (not involving special skill or knowledge) is Glasgow Corporation v Muir [1943] AC 448. Lord Macmillan highlighted two important aspects of the test:

� (a) ‘The standard of foresight of the reasonable man is, in one sense, an impersonal test. It eliminates the personal equation and is independent of the idiosyncrasies of the particular person whose conduct is in question.’ It is an objective test. (For a situation in which it may be appropriate to take a more subjective view of the defendant’s conduct, see 5.3.1 and the case of Goldman v Hargrave.) The abstract reasonable person is put into the shoes of the defendant, who is expected to have the same general knowledge and understanding of risks (say, that icy roads are slippery or that children may get up to mischief) as the reasonable person. The actual defendant may be stupider or more ignorant, or may be cleverer or more knowledgeable, but is still judged by this abstract impersonal standard.

� (b) ‘It is still left to the judge to decide what, in the circumstances of the particular case, the reasonable man would have had in contemplation. Here there is room for diversity of view. What to one judge may seem far-fetched may seem to another both natural and probable.’ The outcome is therefore to that extent unpredictable even in the tiny minority of cases that are resolved in court.

3.3.2 Defendant with special skills or qualifications

Most of the difficult reported cases however involve defendants with special skills or qualifications. It would be silly to ask whether a reasonable ‘person’ would have driven the car, removed the appendix or designed the building in the same way as the actual motorist, surgeon or architect who is being sued. In such cases the defendant is to be compared to a reasonable person with the relevant skill or qualification. This is not always as easy as it might be.

� For one thing, there is sometimes doubt as to exactly what skill or qualifications the defendant professes to have.

� For another, there may be doubt as to whether a large group (say car drivers or doctors) should be sub-divided into smaller categories for the purpose of comparison with reasonable members of the group.

In the examples that follow it is more important to understand the reasoning and how it might be applied in other contexts than to know whether a particular defendant was or was not held to be negligent on a particular set of facts.

Defining the group

In these cases the problem was one of defining the group to which the defendant belonged: Phillips v Whiteley [1938] 1 All ER 566.

The Glasgow Corporation case is a good

illustration of the point made in Chapter 2

about the artificiality in many questions of

looking separately at the three issues of

duty, breach and damage. In this case there

was only one simple question. Should Mrs

Alexander, the manageress of a teashop,

have told her child customers to stand

outside while two people carried an urn of

hot tea through the shop? The answer

depends on what dangers a reasonable

person would have expected and what

steps (if any) such a person would have

taken to avoid them. Lord Macmillan’s

words are appropriate whether you think of

this primarily as a question of breach of

duty or as a question of remoteness of

damage.



Did the defendant, who had pierced the claimant’s ears, have to show the care of a reasonable surgeon or of a reasonable jeweller?

In Shakoor v Situ [2000] 4 All ER 181there is an interesting analysis of how to treat a practitioner of traditional Chinese medicine working in England. Was he to be compared to a reasonable orthodox doctor, a reasonable traditional doctor practising in China or a reasonable traditional doctor practising in England?

Many cases involve car drivers. The only standard of care is that of a reasonable driver, whether the actual driver is highly experienced, newly qualified or even just a learner. It is irrelevant that the learner driver defendant was doing as well as she could, given her lack of experience, if a reasonable driver would have done better: Nettleship v Weston [1971] 2 QB 691.

Medical negligence

A large number of the cases involving special skills concern medical negligence. The defendant is to be compared with a reasonable person of the same specialism and status: a general practitioner is not judged by the same standards as a consultant cardiologist and so on.

There is a special problem with medical defendants (and to some extent with members of other professions). There is often no single ‘right’ way of proceeding. Faced with a particular patient, one doctor might recommend surgery, but another might recommend treatment with drugs. The courts do not insist that one of these approaches must be right and the other wrong: they require that the defendant has acted in a way that would be supported by ‘a body of respectable medical opinion’. This is sometimes called the ‘Bolam test’ as set out in that case. This test allows the medical profession to some extent to determine appropriate standards for itself, but the courts reserve the right to strike down a medical practice as unreasonable (as explained in Bolitho).

Other examples of the application of this principle are: Whitehouse v Jordan [1981] 1 WLR 246; Maynard v West Midlands Regional Health Authority [1984] 1 WLR 634; and Wilsher v Essex Area Health Authority [1987] QB 730. (This is the decision of the Court of Appeal. The case went to the House of Lords, but only on the issue of causation and not on the issue of breach of duty (see Chapter 4).)

The most controversial application of the Bolam test occurs where it is alleged that the doctor failed to give the patient sufficient warning of the risks of the proposed treatment (or possibly of the risks of not having the treatment). English law in principle applies the Bolam test and asks whether the information given was in accordance with what a respectable body of medical opinion would have done, but Australian courts have taken a view more generous to the patient and ask what a reasonable patient would expect to be told. See Sidaway v Governors of Bethlem Royal Hospital [1985] AC 871 and Rogers v Whitaker (1992) 175 CLR 479.

The English approach is sometimes criticised as showing a ‘doctor knows best’ attitude and ignoring the autonomy of the patient. The professional bodies now encourage greater openness and encourage

Ask yourself what conclusion the judge

reached, and why he did do so.

You should read and make notes on:

•�Bolam v Friern Hospital Management

Committee [1957] 1 WLR 582

•�Bolitho v City and Hackney Health

Authority [1998] AC 232

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doctors to explain the advantages and disadvantages of particular treatment unless there is a good reason for not doing so. It will

now be more difficult for a doctor to argue that a reluctance to be open about the advantages and risks of treatment is in accordance with medical opinion. For a more recent example, although it is principally concerned with causation issues (see 4.1.1), see Chester v Afshar [2005] UKHL 1 AC 134.

If you are considering a claim for the consequences of medical treatment, you should think of different ways of presenting the argument. Most cases are based on the idea that the individual doctor (or nurse, etc.) is negligent and that the health authority or private hospital is vicariously liable. For the details of vicarious liability, see Chapter 13. In some cases it may be appropriate to consider arguing whether the health authority or hospital is itself negligent, e.g. by entrusting a procedure to an inappropriately junior doctor, or by overworking its staff so that they are too tired and make mistakes.

The approach described in medical cases would certainly apply to professions similar to medicine, such as dentistry or physiotherapy. The extent to which the courts will be willing to defer to professional opinion in other professions is less certain, although it is likely to apply in all cases where different members of the profession might reasonably take different views. For the example of solicitors, see Edward Wong Finance Co Ltd v Johnson, Stokes and Master [1984] AC 296, and of rugby referees, see Vowles v Evans [2003] EWCA Civ 318: [2003] 1 WLR 1607.

3.3.3 Related issues

Children

Children may be liable in negligence and are judged by what might be expected of a reasonable child of the defendant’s age, and the courts appear to be indulgent towards high spirits and horseplay: Mullin v Richards [1998] 1 All ER 920 and Blake v Galloway [2004] EWCA Civ 814: [2004] 3 All ER 315.

Defendant unable to perform competently

A defendant may be liable even if he was doing his incompetent best. But if his behaviour was the result not of inexperience or incompetence, but of illness or other external forces, then he may be found not liable. See Mansfield v Weetabix Ltd [1998] 1 WLR 1263. (But the result would have been different if the driver had known of the medical condition.)

Eliminating harm must be proportional to the danger

A defendant is not required to eliminate all risk of harm even when it is foreseeable: to do so might be out of all proportion to the danger. The defendant must do something only if a reasonable person would have thought it right to do so. In deciding what precautions have to be taken to minimise a perceived risk, the following guidelines may be taken into account:

(a) How likely was it that injury would occur?

(b) How serious was the injury likely to be if it did occur?

(c) How difficult and/or expensive would it be to eliminate the risk?



(d) How important or urgent was the action of the defendant?

See: Bolton v Stone [1951] AC 850 (explained by Lord Reid in Wagon Mound (No. 2)) [1967] 1 AC 617 at 642; Latimer v AEC [1952] 2 QB 701; Paris v Stepney BC [1951] AC 367; Watt v Hertfordshire CC [1954] 2 All ER 368.

It is important to remember that the defendant is to be judged by how a reasonable person with the same skill, etc. would have behaved at the same time and in the same circumstances. The defendant must not be judged with the benefit of hindsight (making use of knowledge not available at the time of the alleged tort) and allowance must be made for any special circumstances affecting the defendant (e.g. having to act under pressure or with limited time for full consideration). For examples, see: Roe v Minister of Health [1954] QB 66; Luxmoore May v Messenger, May- Baverstock [1990] 1 All ER 1067; and Moy v Pettman Smith [2005] UKHL 7: [2005] 1 WLR 581.

3.3.4 Are decisions on breach questions of fact or law?

Everything in the last few paragraphs involves propositions of law which are binding on the courts. Once these principles have been applied, however, the decision on the particular facts of a case does not constitute a binding precedent. The fact, say, that it was held in a particular case that an employer was negligent in failing to ensure that an employee wore a particular kind of safety equipment does not mean that all other employers will also be held negligent if they behave in the same way. The issue will have to be decided in the light of the particular facts each time it occurs. See Qualcast v Haynes [1959] AC 743.

This approach is not very helpful to potential defendants such as building contractors, who do not want to know that they have to take reasonable care, but do want to know exactly what instructions, equipment and so on they have to supply. So it is very common for regulations under the authority of various Acts of Parliament to set out detailed rules on such matters. The basis of liability for breaches of such regulations is explained in Chapter 7.

3.3.5 Proving breach of duty

Very often the claimant may not be able to find out what happened. A parked car, for example, may have moved off without warning down a hill. All the claimant can do is show that such a thing does not normally happen unless there has been negligence. The claimant can then make use of a rule of the law of evidence called res ipsa loquitur (the facts speak for themselves). You must ask yourself:

(a) when it is legitimate to use the maxim

(b) what the effect of invoking it is. See Scott v London & St. Katharine's Dock (1865) 3 H. & C. 596; Henderson v Henry E. Jenkins [1970] AC 282; Ng Chun Pui v Lee Chuen Tat [1988] RTR 298.

You should be warned that this doctrine applies only exceptionally. You should not make use of it in answering questions unless there is a clear suggestion that there is no explanation for what has

Law of tort


happened and the only inference is that the defendant must have been negligent.

Summary

The actual defendant is to be compared with how a reasonable person would have acted in the same circumstances. Where a particular skill (driving for example) or professional expertise (medical for example) is involved, the appropriate comparison is with a person with the same skill or expertise.

Activity 3.3

(a) What is the level of the duty of care to be shown by:

– a newly qualified solicitor

– a learner driver

– a 12-year-old child?

(b) What standard of care would have to be shown by Deirdre, an ambulance driver, (i) when taking a seriously ill patient to hospital and (ii) when driving her family to the seaside in the family car?

(c) D is a general practitioner. He prescribes certain tablets for his patient C, who is very fat. A recent article in a specialist journal of cardiology has suggested that there may be some risks in giving these tablets to overweight patients. C has a heart attack. Is D liable?

(d) D parks his car on a hill and walks away. Shortly afterwards, the car moves off downhill and strikes C. It is not clear why this has happened. Advise C.


General examination advice

All claimants in a negligence action must establish that there has been a breach of a duty of care. This does not mean that all examination questions require an extended discussion of these topics. If a problem involves a driver of a car hitting someone while proceeding at 80 mph down a one-way street in the wrong direction, then these issues can be disposed of in two sentences. A problem question may involve only issues discussed in this chapter, but is likely also to involve topics from other chapters. An essay question of a general kind on the duty of care will almost certainly require information and ideas from Chapter 5 as well as this chapter.



Feedback to activities: Chapter 3

Activity 3.1 All the judges refer to these reasons, although there are differences of emphasis. You should have identified among the reasons for having the immunity: (i) the fact that lawyers in court owe a duty to the court that may sometimes conflict with the duty to their clients; (ii) that the prospect of being sued in negligence might adversely affect the quality of their argument by e.g. raising every conceivable point in their clients’ interests; (iii) that suing the lawyer would to some extent reopen the correctness of the original decision. The House of Lords thought these reasons no longer applied in 2002 (although there was a disagreement about whether the immunity should remain in criminal cases). A main reason was that the public would not understand why lawyers had an immunity that other professions did not enjoy.

Activity 3.2

(a) No feedback provided

(b) You should have considered what was said in Home Office v Dorset Yacht and other cases. Normally in such a case there would be no liability, but you consider exceptional cases, e.g. if X was another neighbour who was known to be violent and aggressive where it is arguable that the result might be different.

(c) (i) Remember to consider that, although there is no liability to the estate of the dead child, there may be liability to the mother and the damages would include the suffering sustained by the loss of her baby; (ii) neither the Congenital Disabilities Act nor the common law allows an action by the child: for the claim by the parents see McFarlane and later cases; (iii) the Congenital Disabilities Act does not allow a claim by the mother. Ask yourself why mothers are not generally liable for damage to their unborn children, but are liable if they injure them by careless driving.

(d) No doubt the advisory service has a duty of care. Do you think that the reasoning in McFarlane etc. applies also to these facts? (In McFarlane etc. the negligence caused the pregnancy and not the failure to terminate it).

Activity 3.3

(a) On learner drivers see Nettleship v Weston and on children see Blake v Galloway. You will have to think about these cases and general principles would apply to the case of a newly qualified solicitor.

(b) When driving to hospital she still has to drive ‘with reasonable care’. In an emergency it may be legitimate to drive in a way that is not ordinarily acceptable, but it still has to be reasonable in the circumstances. On going to the seaside, she is judged by the standards of an ordinary driver. She is not penalised because, as a highly trained driver, she might have been expected to do better in the circumstances.

(c) Examine the cases on standard of care to be shown by medical practitioners. You might note the following elements in the facts: (i) as a general practitioner, should he know about things discussed in a specialist journal? (some help perhaps from Shakoor v Situ,

Law of tort


though only by analogy); (ii) should he tell the patient about the risks? (consider Chester v Afshar and decide whether the facts are in any respects different).

(d) This might be one of the exceptional situations in which the maxim res ipsa loquitur can be applied.


Chapter 4 Negligence: causation and remoteness of damage

Contents

Introduction 31

4.1 Causation 32

4.2 Causation: special problems: multiple causes 37

4.3 Remoteness: the basic rule 41

4.4 Qualifications of the basic test 43

4.5 New and intervening cause 45

Introduction Negligence is one of those torts in which damage must be proved (see Chapter 1). Once a breach of duty has been established, the claimant must therefore also show that the breach has resulted in injury or damage (the causation issue) and that the injury or damage is sufficiently closely connected to the breach (the remoteness issue). You will understand what is meant by ‘sufficiently closely connected’ in the particular context of negligence after studying this chapter.

Causation and remoteness are the essential links between the breach of the obligation imposed by law and the damage. It is commonly said that causation is essentially a factual and logical question, but that remoteness is a legal question, based on policy considerations about the appropriate extent of a defendant’s liability. In broad terms this is true, but Lord Hoffmann has recently stated that ‘the rules laying down causal requirements are… creatures of the law’ and that ‘it is possible to explain their content on the grounds of fairness and justice in exactly the same way as the other conditions of liability’ (Fairchild v Glenhaven Funeral Services Ltd [2002] UKHL 22 at [54]).

You must therefore consider the policy reasons behind most of the decisions in this chapter.

Learning outcomes

By the end of this chapter and the relevant readings, you should be able to:

� state and explain the basic rule defining the causal link between the breach of duty and the damage

� identify the causal link that has to be established in hypothetical situations

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� identify circumstances in which the basic rule produces unacceptable results and may have to be modified

� explain the policy considerations underlying those modifications

� explain the concept of remoteness of damage in general and identify the basic rules of remoteness in the tort of negligence

� identify the policy reasons for choosing that rule of remoteness

� explain the concept of new and intervening cause and relate it (a) to the actions of third parties and (b) to actions by the claimant subsequent to the negligence of the defendant.

Essential reading

� Markesinis and Deakin, pp.185–214

� Murphy, pp.264–280

� Winfield and Jolowicz, pp.209–247

� Lunney and Oliphant, pp.188–252.

4.1 Causation Causation is relevant to all torts in which proof of damage is essential. The problem is usually discussed in detail in the context of negligence, but the principles apply more broadly, and some of the cases referred to in this section involve claims in other torts as well as in negligence. You must always remember to link the tort (i.e. the breach of duty in the case of negligence) and not merely the defendant to the damage. An example will illustrate the importance of this.

A baby has brain damage: it has recently been vaccinated. If there is a claim for compensation, it will always be necessary to establish (on scientific evidence) that the vaccine caused the damage. If the claim can be brought within a tort of strict liability (see Chapter 1 for definition), nothing more need be proved in terms of causation. This is not so if the claim is in negligence, e.g. alleging that a doctor in breach of the duty of care failed to carry out proper tests to discover whether the baby had an allergy to the vaccine. It will then be necessary, in addition to showing that the vaccine caused the damage, to show that the breach of duty caused the damage. If the proper tests carefully administered would not have revealed the allergy, then the baby would still have been damaged and the breach of duty would not be a cause of the brain damage.

You will find that the causation issue sometimes (though exceptionally) gives rise to difficult questions, but the underlying idea is very simple. We use the language of causation every day without much difficulty, and we understand that the language of causation is used in different ways in different contexts. We may for instance say, ‘I was late for work to-day because the 7.30 train was cancelled’. Here we know that the cancellation made lateness inevitable. But we do not know for certain that we would have been on time if the train had been running. Something else might have happened to delay us. On the other hand we often hear about research into the causes of disease. Advertisements for cigarettes



may carry a warning that ‘smoking causes lung cancer’, but we know that here there is no inevitability: many non-smokers develop cancer and many smokers do not. We need more information before we can talk of the cause of the disease in any particular sufferer. You should make use of your knowledge of the ordinary usage of the language of causation in analysing problems.

4.1.1 The basic rule

The basic rule may be stated positively or negatively. If the damage would still have occurred, even if the defendant had not broken the duty of care, then the breach did not cause the damage. If the damage would not have occurred but for the defendant’s breach of duty, then the breach of duty is a cause of the damage. For this reason, the basic rule is often referred to as the ‘but for test’. Its main purpose is to exclude things that have no bearing on the damage. It is for the claimant to show that the breach of duty was the cause of the damage, and not for the defendant to show that the breach of duty was not the cause of the damage.

We know in a common sense way that it is rarely possible to be absolutely certain about such matters, and the law does not demand such certainty. It is sufficient to show that on a balance of probabilities the breach was the cause of the damage, or that it is more likely than not that the breach was a cause of the damage. In principle it is an ‘all or nothing’ question. If it is more probable than not that negligently administered drugs caused the claimant’s deafness, then the claimant recovers in full for the deafness. If it is not more probable than not, even if it is a possibility, then the claimant recovers nothing.

In many cases the causation issue raises no problems at all: this is particularly true where the defendant has been guilty of some positive wrongdoing, such as overtaking a vehicle at a blind corner or administering the wrong dosage of a drug. Usually it is very clear whether or not the act has caused the damage. There is likely to be more difficulty in those cases where the defendant’s breach of duty consists of a failure to do something that should have been done. Here it is necessary to speculate about what would have happened if the defendant had not been guilty of this failure. There are several different situations to consider:

(i) There may be doubt about what the natural course of events would have been if the defendant had behaved properly.

� For example, the defendant doctor failed to diagnose the claimant as having an illness in need of treatment. Was it so serious that the defendant would have died even if the proper diagnosis or treatment had been given? See: Barnett v Kensington and Chelsea Hospital [1969] 1 QB 428.

� The claimant fell overboard into icy water. The defendant’s rescue effort was inadequate. Would the claimant have perished in the cold water before even a competent rescuer could have saved her? See: The Ogopogo [1971] 2 Lloyd’s 410.

(ii) There may be doubt about how the defendant would subsequently have behaved if he had done what he should have done in performance of the duty.

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� Look again at Bolitho v City and Hackney Heath Authority [1998] AC 232 (see Chapter 3). You will see that the doctor in breach of her duty failed to attend a patient, but she successfully argued that the action she would in fact have taken if she had attended would not have been negligent (because it was in accordance with a respectable body of professional opinion) and would not have saved the patient. The child would therefore still have been dead even if she had performed her duty by attending. Therefore her culpable failure to attend was not a cause of the death.

(iii) There may be doubt about how the claimant would subsequently have behaved if the defendant had done what should have been done.

� The defendant doctor may have failed to warn the patient about the risks of treatment: would the patient have decided to have the treatment anyway? If so, the failure to warn cannot be a cause of the damage if one of the risks occurs. The defendant employers may have failed to provide safety equipment for their employees: would the deceased employee have used it if it had been provided? If not, then the failure to provide it was not the cause of the injuries. See: McWilliams v Sir William Arrol [1962] 1 All ER 623.

� This issue has recently been considered by the House of Lords in Chester v Afshar [2004] UKHL 41 [2005] 1 AC 134 where a majority of the House of Lords took a view very favourable to the claimant. You must address the policy reasons for this view. The surgeon had advised the claimant to undergo surgery but in breach of duty had failed to advise her of the risk. The claimant did not show that she would probably never have had the operation, but she did show that she would have taken her time and consulted friends and therefore would not have had the actual operation on the particular day that she did have it. The House of Lords held that she had therefore established that the breach of duty was a cause of her injury. Notice however that the sort of injury was something that happened on very rare occasions for no very obvious reason. The result would surely have been different if the injury had been due to some previously unknown peculiarity of the claimant, so that it might well have happened to her even if the operation had been postponed and performed on a different day.

Note that in cases (ii) and (iii) it is particularly important to scrutinise the evidence given by the defendant and (if living) the claimant because their view of how they would have behaved may be coloured by what has now happened. It may seem harsh that the claimant in McWilliams had to prove that the deceased would have worn the safety harness if it had been provided, but it should be noted that the evidence was in fact very strongly to the effect that it was highly unlikely that he would have done so.

Activity 4.1

(a) C steps into the road immediately in front of a car: the driver is exceeding the speed limit and talking on her mobile phone. C is struck and injured. Is D liable for the injuries?



(b) C collapsed with chest pains. D did not call an ambulance, but gave C a large glass of brandy. C dies. What more do we need to know in order to establish the cause of C’s death?

(c) C is employed by D. D in breach of duty has stopped providing safety helmets because they were rarely worn. C falls to the ground and suffers serious head injuries. Advise C.


In all of the cases in (i) to (iii) the normal ‘but for’ test seems to be applied, but…

(iv) There may be doubt about how other people would have behaved if the defendant had done what should have been done. Here the test may be different, and this will be considered shortly.

4.1.2 Damages for loss of a chance

So far it has been assumed that we know what is meant by the damage. There is sometimes room for argument on this point. This is illustrated by Hotson v East Berkshire Area Health Authority [1987] AC 750.

Hotson injured his hip in a fall (no tort was involved). The hospital failed correctly to diagnose and treat his injury for some days. In due course he suffered a wasting (necrosis) of the hip leading to permanent disability. This was caused by the original injury, but was it caused by the negligent failure to treat him immediately? The judge (unusually) assessed the chances. There was a 25% chance that he would have recovered if treated properly, but a 75% chance that he would not. He and the Court of Appeal awarded him 25% of the damages that would have been payable if the hospital had caused the necrosis. The House of Lords disagreed and awarded him nothing (apart from a small sum for the pain suffered during the days of delay).

If the damage is the necrosis, this decision is in line with the normal rule described above, and is similar to Barnett v Kensington and Chelsea Hospital, if it was possible to say immediately after the accident, ‘Hotson’s injuries are of such severity that he personally has only a 1 in 4 chance of avoiding necrosis’. An alternative argument is that, at that time, Hotson was a boy with an injured hip and also with a 1 in 4 chance of recovery. The hospital negligently destroyed his chance, and that chance had been worth something to him. The House of Lords refused to apply that analysis to the facts of Hotson’s injury, and applied the general principle described earlier in this chapter. The House did accept that the loss of a chance could sometimes be recoverable in damages, but did not explain in what circumstances that would be the case.

A majority of the House of Lords in Gregg v Scott [2005] UKHL 2: [2005] 2 WLR 268 reaffirmed that the general approach in Hotson’s case should be followed and declined to depart radically from its principles.

When then are damages for loss of a chance recoverable?

Law of tort


Sometimes this is allowed in breach of contract actions (Chaplin v Hicks [1911] 2 KB 786). It is also clear that, when the courts have identified an item of damage as being caused by a tort, then the measure of damages (the amount of money awarded in compensation) reflects the loss of future chances. For instance, if the claimant has proved that the tort caused physical injuries leading to permanent unemployment, then the amount of money paid in compensation will be based on the chances of future employment, and not on proof that on a balance of probabilities he would have had a particular career. A similar approach seems to have been taken in Spring v Guardian Assurance plc [1995] 2 AC 996 (see details in Chapter 5), where Lord Lowry thought that the claimant would not have to prove that the negligent reference supplied to prospective employers caused him not to be appointed to a post, but that he would be compensated for the loss of a chance of future employment. See also Allied Maples v Simmons & Simmons [1995] 1 WLR 1602. In both cases the loss was economic rather than physical damage. That may explain the difference. Another explanation may be that what was in question was how other people (e.g. the prospective employer in Spring) would have behaved, and there would be no evidence on this point.

It may be therefore that in cases under (iv) above the damage is properly to be regarded as the loss of a chance, and that it is not necessary to prove on a balance of probabilities that the other people would have behaved in a particular way.

The decision in Hotson is consistent with an earlier decision of the Court of Appeal in Cutler v Vauxhall Motors [1970] 2 All ER 56. The defendants injured the claimant who as a result had an operation for varicose veins. He would, more likely than not, have required such an operation in a few years’ time even if the injury had not occurred. Therefore the majority of the court held that the operation was not caused by the defendants’ breach of duty. Students often unthinkingly misapply this case. It can be relevant only where the damage is a ‘one-off’ event such as an operation from which the claimant fully recovers. If the breach of duty causes the claimant, for example, to lose a leg which would probably have had to be amputated in a few years anyway, the claimant is certainly entitled to damages at least for the additional years without a leg.

Activity 4.2

C, aged 21 and in her final year at university, is swimming in a council swimming pool. She suffers cramp and starts to drown. The lifeguard employed by the council is not at his post. C is eventually rescued but has suffered brain damage and will need constant care. It is possible that, if the lifeguard had been there, she would have been rescued in time to prevent the brain damage. It is possible that she would have had an excellent degree and realised her ambition of working as a solicitor in a large City firm. Advise C.




4.2 Causation: special problems: multiple causes In a number of situations the application of the ‘but for’ test would lead to outcomes that would be absurd or arguably unjust. The courts have in some of these cases been prepared to abandon or modify that test. There are many variations in the possible facts, and it is important that you analyse correctly and carefully the leading cases and any problems that you are asked to consider.

4.2.1 Two separate causes of the same damage

Suppose that David and Daniel acting independently at the same moment shoot Conrad, who dies instantly: either shot would have been fatal. Logically each assailant could say that he was not the cause of death, because, even if he had not been there, the other shot would still have killed Conrad. On this reasoning neither defendant would be liable. Such a result would be absurd. In such a case the court would hold that both David and Daniel were liable, leaving them to contest the matter between themselves.

That situation is of course most implausible. What can and does occur is that two successive actions may independently bring about the same damage. This is associated with two important decisions of the House of Lords. These are often misunderstood by students and applied where they should not be. It is therefore important first to understand the situation in which it is appropriate to refer to them. The present problem arises where there are two unconnected events (one or both a tort), each of which would in the absence of the other have caused a particular item of damage. An example will make it clearer.

Imagine a professional sporting star with a large income and valuable sponsorship deals. Let us call him Edward. In January Edward is injured in a road accident and loses both legs. Six months later in an entirely separate and unconnected event someone throws acid in his face and blinds him. Three months after that, you meet him and say, ‘Hullo, Edward. Are you still playing football?’ He replies, ‘No, I am not, because…’ How would you finish the sentence for him? Is it because he has no legs, or because he is blind?

On those facts both events were torts. Would it make a difference to the way in which you think you would finish the sentence if either Edwards’s blindness or the loss of his legs was the result of a natural disease?

The problem can also be presented in this way.

In the following diagram the claimant was originally earning £40,000 per year. As a result of an accident he has to take a lighter job earning £15,000 per year. Six months later he suffers a further (unrelated) accident and is unable to work ever again.

Law of tort


1

£40,000

1st event 2nd event

2

£15,000

(See diagram below.)

The damages in the box marked 1 are attributable only to the first event, those in the box marked 2 only to the second event. The problem lies with the damages in the shaded area, since either the first or the second event would, in the absence of the other, have brought about that damage. One thing is clear. If the first event is a natural occurrence such as a disease, then the tortfeasor responsible for the second event ‘takes the victim as he finds him’ i.e. as a person earning £15,000 per year and cannot be liable for the damages in the shaded area. But what if the first event was a tort and the claim is against that tortfeasor? Does the tortfeasor continue to be liable for the loss in the shaded area even after the occurrence of the second event, which would independently cause the same loss?

The House of Lords has considered this problem in Baker v Willoughby [1970] AC 467 and Jobling v Associated Diaries Ltd [1982] AC 794.

It is best to start with Jobling. He had been injured in an industrial accident and permanently disabled. Some years later, before damages had been assessed, he was found to be suffering from a disabling disease that rendered him unfit for work. The House decided that the defendant was not required to compensate for the losses after the onset of this disease. The House was critical of (but did not overrule) the earlier decision in Baker. Baker’s leg had been permanently damaged in a road accident. He had to change his job and was shot by robbers (who were of course tortfeasors but were never found) and as a result his leg was amputated. The House had held that the damage was not subsumed in the new tort, but the negligent motorist continued to be answerable for the damage to the leg (and its continuing economic and other consequences). There would be an obvious harshness if Baker were to lose his damages because he was the victim of two torts and not just one, but it is not easy to formulate a principle explaining why Baker’s claim was not extinguished, but Jobling’s was.

It is necessary to stress again that both cases were concerned with continuing liability for the consequences of the original injury and not with liability for the additional consequences of the second injury. It was not for instance argued that the defendant in Baker was liable for the amputation. We will consider that kind of situation later.

Damages are assessed once and for all so

that if they are calculated and the case

disposed of by settlement or by litigation

before the second event occurs, the

assessment will not be reopened (see

Chapter 13, Section 13.3.2 Principle 4).



Activity 4.3

C is knocked down by D, a careless motorist. Because of his injuries he has to give up his job as a financial analyst and is unemployed. He is walking on the beach when he is struck by a freak wave. He suffers severe head injuries that would make him unemployable. Advise C.


4.2.2 Uncertainty of the facts

In the previous section the facts were not in doubt. The problem was a logical one. In this and the next section the problem is one of the uncertainty of the facts. Two or more people in breach of their duty of care cumulatively cause harmful fumes to afflict the claimant and cause the onset of a disease, i.e. the disease is one in which, the greater the exposure to the fumes, the worse the disease is likely to become. In such cases the court is likely to hold both defendants liable. It is held that it is sufficient to show that the defendant’s breach of duty materially contributed to the damage, and that it is not necessary to show that the defendant’s fumes caused the damage.

This approach has been extended to situations where tortiously produced fumes have combined with non-tortiously produced fumes, at least where all the fumes came from the same source. See: Bonnington Castings Ltd v Wardlaw [1956] AC 613.

Now go back to the situation described at the start of Section 4.2.1, but vary the facts in one respect. Only one shot hits Conrad and the other misses, but it is impossible to tell which is which. He was therefore the victim of a tort, but it is impossible to say who the tortfeasor was. This situation arose in the Canadian case of Cook v Lewis [1951] SCR 830, and the decision in effect was that both defendants should be liable, unless either could show that his shot was not the fatal one. Here is another situation in which it seems wrong to deny the claimant recovery because in effect he was the victim of two torts and not one. After all, one defendant actually hit the claimant and the other by firing carelessly made it impossible to identify the killer.

This is one illustration of a difficult problem, which arises where:

(a) the defendant has been guilty of negligence

(b) there has been damage of a kind which it is known can be caused by negligence of that kind, and

(c) there is no evidence as to whether in this case the damage was in fact caused by the negligence.

This lack of proof may be because something else happened at the same time which obscures the position, or because medical science has not reached the point where it can be certain of the causation of the disease.

This has most recently been considered by the House of Lords in Fairchild v Glenhaven Funeral Services Ltd [2002] UKHL 22. You must study this case carefully and identify the facts. The reasoning can then be tested against some important earlier cases that are discussed in the speeches.

Law of tort


This case illustrates a problem that has for long caused difficulty. The House surveys the way it has been dealt with in a large number of countries round the world, and also reviews it historically as far back as the classical Roman jurists of the second century AD. Nevertheless the House emphasises that it is deciding what should happen only on the precise facts of this case, and is not laying down universal rules. It is therefore vital to be clear about the crucial facts, and then to think about how many of these are present in other cases, and also to consider how the absence of one of these factors or the presence of others might lead to a different outcome. The crucial factors are conveniently listed by Lord Bingham of Cornhill in Chapter 3 section 3.1. There are five speeches all reaching the same result. Lord Hutton’s reasoning was however rather different from that of the other judges. The other speeches, though differing in detail, are very similar in approach.

The House heard appeals arising out of three separate cases, all with identical facts. The claimants all suffered from a form of cancer undoubtedly caused by asbestos dust. The dust does not operate cumulatively as described in 4.2.2. The process by which the asbestos caused the cancer was not entirely understood, but it might be that one fibre or group of fibres triggered the cancer, perhaps some years later: if so, once the triggering had occurred, exposure to other fibres would not make matters any worse, and stopping the exposure to asbestos would not make matters any better. The claimants had all worked for more than one employer over many years. All the employers had in breach of their duty exposed the claimants to asbestos fibres. It was impossible to form any view about whose fibres had triggered the cancer. The Court of Appeal held that none of the employers was liable because the claimants could not prove against any of them that their fibres had caused the cancer: the House of Lords held that they were all liable, so long as the evidence remained inconclusive.

You will also have to consider two other decisions of the House of Lords analysed in Fairchild. These are McGhee v National Coal Board [1972] 3 All ER 1008 and Wilsher v Essex Area Health Authority [1988] 1 AC 1074.

The Court of Appeal decision in Wilsher has already been explained (see Chapter 3). The health authority had failed to detect that the catheter had been wrongly inserted and therefore the premature baby received too much oxygen. That was held to be negligent. The health authority did not ask the House of Lords to reverse that decision. It did however concentrate on the problem of causation. Excess oxygen can cause blindness in premature infants. It is however only one of several causes. Had it been the cause in the case of Wilsher? The House of Lords held that this had not been established on the balance of probabilities, and that the case had to be retried in order that the court applying the proper balance of probabilities test could decide the matter.

Activity 4.4

(a) Did the claimant win or lose on the causation issue in each of the following cases: McGhee, Wilsher and Fairchild?

(b) Consider the following statements:



(i) The claimant’s injuries were certainly caused by a tortious breach of duty.

(ii) The claimant’s injuries were certainly caused by the defendant.

Which of these statements are true of the facts in the three cases mentioned in question (a)?

Feedback: You will find a helpful list of factors near the beginning of Lord Bingham’s speech in Fairchild. You should then match this list against the facts of the other cases.

Reminder of learning outcomes

By this stage you should be able to:

� state and explain the basic rule defining the causal link between the breach of duty and the damage

� identify the causal link that has to be established in hypothetical situations

� identify circumstances in which the basic rule produces unacceptable results and may have to be modified

� explain the policy considerations underlying those modifications.

Summary

The fundamental rule is that the tort must cause the damage, i.e. if the tort had not occurred the claimant would not be in the same position. This must be shown on a balance of probabilities. There are however difficult situations where there are competing causes and the fundamental rule has to be abandoned or modified in order to prevent injustice.

4.3 Remoteness: the basic rule Even if the tort caused the damage, that is not the end of the story. A breach of duty may considerably change the course of subsequent events, but the defendant will not be liable for everything that can be traced back to the original wrongdoing. The remoteness issue limits the extent of the defendant’s liability. This too can be illustrated by our ordinary use of language.

Claudia travels to work in London: the only convenient way is by train from her local station. One day she finds that a train has been derailed outside the station and blocked the line. She therefore has to return home. During the morning an intruder breaks in and shoots her in the leg. It would be natural for her to say, ‘I was absent from work yesterday because my train was derailed.’ But it would not be natural for her to say, ‘I was shot in the leg yesterday because my train was derailed’. Yet it is true that, if there had been no derailment, she would not have been at home and would not have been shot. There is however a feeling that the link between the shooting and the derailment is not close enough. In legal language, the shooting is too remote a consequence of the derailment.

Like causation, the remoteness issue is relevant to all torts in which proof of damage is essential, or in which the claimant is seeking

Law of tort


compensation for specific losses. The test of what consequences are too remote, however, is not formulated in the same way in all torts. In every tort involving damage, you will have to learn what the test of remoteness of damage is. Later in this chapter we will consider the way in which the test is formulated in the tort of negligence.

The main purpose of the rules of causation is to exclude those things that are not the cause of the damage. If the same damage would have been suffered even if there had been no breach of a duty of care, then the claimant loses. But the opposite is not true. Even if the damage would not have been suffered without the breach of duty (i.e. the breach of duty is a cause of the damage), it does not follow that the defendant is liable. The breach of duty may initiate a whole chain of further events – but some of these will be treated as too ‘remote’ from the original negligence for it to be appropriate to hold the defendant answerable for those distant outcomes.

At one time the test of remoteness of damage in the tort of negligence was said to be whether the damage was the direct consequence of the breach of duty. If it was merely indirect, particularly if there was something which ‘broke the chain of causation’, then the defendant was not liable. This test was particularly associated with the decision of the Court of Appeal in Re Polemis [1921] 3 KB 560.

The acceptable test: foreseeable consequences

Since 1964 the accepted test has been that the defendant is liable for damage only if it was the foreseeable consequence of the breach of duty. The Privy Council so decided in The Wagon Mound (No 1) [1961] 1 AC 388.

Furnace oil had been negligently spilled from a ship in Sydney Harbour. The oil had been carried to nearby docks where welding operations were in progress. A piece of cotton waste caught fire, the temperature was raised sufficiently to ignite the oil and the resulting fire destroyed the docks and ships moored there. The New South Wales courts, applying the English rule of the time, held that (on the evidence presented) the great fire was not foreseeable, but that it was the direct consequence of the spillage and therefore the defendants were liable. The Privy Council disagreed. The defendants should be liable only for what could reasonably have been foreseen. The Privy Council gave two reasons. A test of foreseeability was (a) simpler and (b) more just, because it was unfair to hold a careless defendant liable for more than could have been foreseen when and if he thought about the consequences before committing the act of negligence. ‘It is hoped that the law will thereby be simplified and that, in some cases at least, palpable injustice will be avoided.’ (per Viscount Simonds)

Activity 4.5

Why did Viscount Simonds say that the test of remoteness should be foresight and not directness? Are his reasons justified?

No feedback provided.



4.4 Qualifications of the basic test Viscount Simonds certainly thought that the substitution of the new test would not affect the outcome of many cases. Foresight is not a term that can be applied mechanically. The way it is used can be understood only by examining a selection of cases in which it has been considered. A very narrow test would mean that the defendant would be liable only if the very thing which happened was what would be expected and therefore foreseen: a very wide interpretation would suggest that the defendant would be liable for everything that you could imagine happening unless it was utterly far-fetched. The approach in the cases decided since 1961 falls between these two extremes, but is probably closer to the latter. The following are reasons why the effect has not been great:

(a) How much is foreseeable?

The significance of the new test was considered by the House of Lords in Hughes v Lord Advocate [1963] AC 837.

More recently the House has again considered the problem and analysed both the Wagon Mound (No 1) and Hughes v Lord Advocate in Jolley v Sutton London Borough Council [2000] 1 WLR 1082. This is in fact a case based on the Occupiers’ Liability Acts (see Chapter 6), but the common law principles were discussed and applied.

These cases show that it is not necessary to foresee precisely what happened. In particular it is not necessary to foresee either (i) the severity of the damage or (ii) the precise manner in which it occurred. It is sufficient if the injury is of the type that could be foreseen, even it came about in an unexpected way or was much more severe than expected.

This can be illustrated by the facts of Jolley. The defendant council had in breach of duty failed after several months to remove a derelict cabin cruiser that had been abandoned on its land. The issue was whether the council could foresee only that small children would be injured by clambering over it, or whether (as actually happened) teenaged children would be injured by jacking it up and working underneath it in order to make it seaworthy. This is in the end a matter of judgment – the Court of Appeal unanimously held that the accident was not foreseeable, the House of Lords unanimously held that it was.

The following case also illustrates the difficulty in drawing the line: Doughty v Turner Metal Manufacturing Company [1964] 1 QB.

(b) The egg-shell skull cases

Before 1961 the courts had recognised what was called the ‘egg-shell skull’ cases, and, after some hesitation it has been held that the principle of these cases had survived the introduction of the new rule for remoteness.

This looks like the issue discussed in Section 3.2.1 and the case of Haley v London Electricity Board) but must be sharply distinguished from it. This is a common source of confusion for students. In the Haley kind of case the defendants had behaved in a way that presented no danger to most people: only a person with a particular susceptibility would have been in any real danger of injury at all. Our present rule may be expressed this way:

Law of tort


� where (i) the defendant is in breach of duty to the claimant

� and (ii) it was foreseeable that the claimant would suffer some physical injury

� and (iii) the particular claimant has a particular susceptibility or abnormality and as a result suffers more serious injury or injury of a different type from that which was foreseen, then the defendant is liable for that further injury.

The obvious situation is this: the defendant has carelessly struck the claimant on the head. It is foreseeable that the claimant will suffer cuts and/or bruises. The particular claimant however has an exceptionally thin skull (an ‘egg-shell’ skull) and sustains a fractured skill and serious brain damage. That was not foreseeable, but the defendant is still liable for it.

There is a good example in Robinson v Post Office [1974] 2 All ER 737.

Notice that this case involves both a true causation point and an egg-shell skull point. The defendant was liable for the negligent grazing of the claimant’s shin. The claimant had an unforeseeable allergy. The hospital administered an antitetanus injection without carrying out the appropriate tests. Robinson had an allergy to the injection and the reaction caused brain damage. There were two elements to the decision:

� The evidence was that, even if the proper tests had been carried out, the allergy would not have been detected. Therefore the hospital’s negligence was not a cause of the brain damage (i.e. the ‘but for’ test (see 4.1.1) was not satisfied.

� Once the hospital’s negligence was out of the way, the allergy was the equivalent of an egg-shell skull and, though it was unforeseeable, the defendant was nevertheless liable for it.

(c) Financial weaknesses

What happens if the claimant has a financial rather than a physical weakness?

If the defendant injures a claimant who happens, however unforeseeably, to be a leading soccer star whose career is ruined, then the defendant has, as with the egg-shell skull cases, ‘to take the victim as he finds him’, i.e. to compensate the claimant for his actual loss. What has to be foreseen is physical injuries that were result in loss of employment. Once that has happened, the defendant has to compensate for the actual loss suffered.

The position used to be less clear where the claimant suffers additional damage because of poverty. The leading case was Liesbosch Dredger v SS Edison [1933] AC 448 and many attempts have been made to explain and distinguish it. The House of Lords has however now decided that dicta in the Liesbosch case should not be followed.

See also Lagden v O’Connor [2003] UKHL 64 [2004] 1 All ER 277 [see from [45]-[62]).



4.5 New and intervening cause

4.5.1 General

A particular problem of remoteness arises in the following circumstances:

D negligently collides with C’s car and injures him. On the way to the hospital the ambulance driver X crashes into a tree and causes C severe injuries. Or at the hospital a nurse Y administers to C the wrong dose of the drug and causes brain damage. Or a patient Z goes berserk and stabs C repeatedly. Is D liable not only for the original injuries but also for the more serious later injuries caused by X, Y or Z? This is the problem of the new and intervening cause (in the cases this is often expressed in Latin as nova causa interveniens or as novus actus interveniens). Clearly if it had not been for D’s negligence C would not have been in the ambulance or in the hospital and would not have suffered further injuries. Therefore they were in a factual sense caused by the original negligence: but were they too remote?

A word of warning: students often find it difficult to distinguish between this problem and that described in 4.2.1. It is now possible to make the distinction more fully. Think of the facts in the last paragraph. C may have been a professional footballer. The injuries sustained in the original car accident may have ended his career. We may be interested in knowing whether D continues to be liable for those consequences even after the stabbing which would independently have destroyed his career. That is the problem dealt with in 4.2.1 and associated with cases such as Baker v Willoughby. The problem now being considered arises if it argued that D is also liable for the additional consequences resulting from the stabbing.

The triangular situation just described should remind you of the case of Dorset Yacht Co v Home Office [1970] (see Chapter 3). That case is usually analysed in terms of whether the borstal officers owed a duty of care to the owners of the yacht. Lord Reid reached the same conclusion by considering whether the acts of the boys were a new and intervening cause and deciding that they were not. He held that the original tortfeasor could be liable for intervening human conduct, whether that was criminal, negligent or innocent, but only if it was ‘something very likely to happen: a mere foreseeable possibility was not enough’. That phrase has been considered in a number of later cases.

C (injured) X (intervening conduct)

D (negligent)

Law of tort


4.5.2 Intervening criminal conduct

The following cases are relevant: Lamb v Camden London Borough Council [1981] QB 625; Perl v Camden London Borough Council [1984] QB 342; Smith v Littlewoods Ltd [1987] AC 241.

In all these cases the claim failed. The Littlewoods case is particularly instructive: note that there are two leading speeches, those of Lord Mackay of Clashfern and Lord Goff of Chieveley, but they followed different lines of reasoning. Lord Goff’s will be considered under the heading of liability for omissions (Section 5.3). Lord Mackay’s reasoning relates more closely to the issues discussed in this chapter.

Sometimes intervening criminal conduct, even though surprising, is not too remote if it is closely related to the risk posed by the defendant’s conduct: Al-Kandari v Brown [1988] QB 665.

Activity 4.6

Look at the Dorset Yacht, Lamb, Smith and Al-Kandari cases. In which of these cases was the defendant liable for the consequences of the criminal behaviour of others? Identify the differences in facts that led to liability in these cases and not in the others.


4.5.3 Intervening negligent conduct

There could be many situations in which the subsequent carelessness of some third party has caused new injuries. One example is Knightley v Johns [1982] 1 WLR 399.

The most likely situation relates to medical treatment administered to the victim.

Cindy is injured by the negligence of Daphne. She is taken to hospital and as the result of her treatment her injuries are worse than they were otherwise expected to be. Daphne has brought about the need for hospital care. Does that mean that she has to be answerable in law for the further medical complications or is she entitled to assume that Cindy will receive proper care and pass on responsibility to the hospital for the aggravation of the injuries? The law is not entirely separated, but the following would seem to be relevant distinctions.

(a) The hospital is not negligent, or, as in Robinson v Post Office (see 4.4) the hospital’s negligence fails the ‘but for’ test (see 4.1). In that case Daphne is likely to be liable for all the subsequent injuries.

(b) Gross negligence by the hospital unconnected with the initial injury (e.g. amputating the wrong leg). The implication of Robinson v Post Office is that in such cases the defendant would not be liable for the aggravation of the injuries.

(c) Where the hospital’s negligence falls between those two, it is likely that it would not break the chain of causation, but that both the original defendant and the hospital would be jointly liable for the consequences. There is not conclusive authority on that point.

Note: This is a striking example of a case

in which the Court of Appeal went

through each of the elements of the

negligence action, i.e. duty, breach and

remoteness, one after the other.



4.5.4 Intervening conduct by the claimant

So far it has been assumed that the new and intervening acts were perpetrated by a third party: sometimes, however, subsequent conduct by the claimant is in issue. Where the defendant is being asked to take responsibility for the claimant’s own failures, there are several conceptual mechanisms to be considered.

(i) Did the defendant owe a duty to protect the claimant against the claimant’s own stupidity? See the discussion in Section 3.2.

(ii) Did the claimant’s own conduct break the chain of causation? It is certainly likely that, where the defendant had a duty to protect the claimant against an identified risk (e.g. that the claimant would commit suicide), then the risk, if it materialises, cannot be a new and intervening cause. (See the Reeves case below.)

(iii) Are any of the defences of voluntary assumption of risk, contributory negligence or illegality available so as to defeat the claim or reduce the damages available?

Examples of where the claimant’s subsequent actions are careless are McKew v Holland & Hannen & Cubitts [1969] 3 All ER 162; Wieland v Cyril Lord Carpets [1969] 3 All ER 1006.

Examples of where the claimant’s subsequent actions are deliberate are Kirkham v Chief Constable of Greater Manchester Police [1990] 2 QB 283 and Reeves v Commissioner of Police for the Metropolis [2000] 1 AC 360.

Activity 4.7

Cecil is injured in a road accident caused by the negligence of Delia. He is advised by the doctors not to return to work for three months. He is very conscientious and is bored at home, and his employer has a backlog of work. Cecil returns to work after a month, but two days later while working on a stepladder he turns dizzy and falls to the ground, breaking his arm. Is Delia liable for the broken arm?


Reminder of learning outcomes

By this stage you should be able to:

� explain the concept of remoteness of damage in general and identify the basic rules of remoteness in the tort of negligence

� identify the policy reasons for choosing that rule of remoteness.

� explain the concept of new and intervening cause and relate it (a) to the actions of third parties and (b) to actions by the claimant subsequent to the negligence of the defendant.

Law of tort


Sample examination question

In 2004 Theo was aged 19, an apprentice plumber and a talented rugby player. He hoped to sign a contract as a professional player and eventually to play for England. However he had back problems and so was referred to Ursula, a neurosurgeon. She told him that it would be impossible for him to take part in professional rugby without soon sustaining serious injury and no club would sign him on as a professional. If he were to give up rugby she advised him that he would be able to lead a normal life without back trouble for many years. There was, however, a new surgical procedure that offered a very good prospect of strengthening his back sufficiently to enable him to play rugby. Ursula knew that recent research had suggested that the new procedure carried a small risk of damaging the spine. Ursula was critical of this research and did not tell Theo about it. Theo decided to have the surgery. Although the operation was carefully performed, he suffered serious damage to his spine. He was then unable to work as a plumber and suffered considerable pain.

In January 2005 Theo’s mother collapsed just outside her front door on a very cold night. As there was no help available, Theo lifted his mother inside. He experienced terrible back pains and is now permanently disabled.

Advise Theo as to any tort claim against Ursula on each of the following alternative assumptions:

(a) he would probably have suffered no injury as the result of lifting his mother but for the earlier operation

(b) he would probably have suffered the same injury as the result of lifting his mother even if he had not had the earlier operation.

Advice on answering the question

This question raises issues on Chapters 3 and 4. [There is also a minor point that the hospital or health authority will be vicariously liable – see Chapter 13 – but no problem arises on that and it can be stated in a sentence.]

(a) Ursula owes a duty to Theo. This is a classic duty situation and no extended discussion is required.

(b) Is Ursula in breach? More discussion required, especially on Chester v Afshar. You must carefully explain what Ursula has done and why. She didn’t withhold the information from Theo because there was only a small risk, but because she thought the research suggesting that there was a small risk was flawed. Is that a breach of duty?

(c) The main issues are causation:

(i) both scenarios: was Ursula’s negligence the cause of the original injuries? (Chester v Afshar again).

(ii) On the first scenario, was Ursula also liable for the additional consequences of lifting mother (McKew, etc.)?

(iii) On the second scenario, did Ursula continue to be liable for the original consequences (loss of job as plumber) even after lifting mother (Baker v Willoughby and Jobling)?



Feedback to activities: Chapter 4

Activity 4.1

(a) The driver is doing two things that are criminal (speeding and using her mobile phone while driving). This does not necessarily mean that they are tortious (see Chapter 1). However the courts may take the view that Parliament has set a proper standard and failure to observe it must therefore be a breach of civil duty of care. There is some authority (about 50 years ago) that exceeding the speed limit is not necessarily negligent (because in the particular circumstances reasonable care was shown), but in the present climate of opinion about speeding, this might be difficult to apply. The main issue is that D cannot be liable unless C shows on a balance of probabilities that D would have been able to stop if she had not been speeding and using her phone.

(b) It might be important to know whether the brandy caused the death (in which case the important issue is whether administering brandy was a breach of duty) or whether the brandy was irrelevant and the cause of death was a failure to call for an ambulance in the sense that medical treatment would have saved C (in which case the important issue is whether such failure was a breach of duty – on this see 5.3).

(c) See McWilliams v Sir William Arroll.

Activity 4.2 It is important to distinguish the two issues. She has to prove on a balance of probabilities that she would not have suffered the actual damage (the head injuries) if the lifeguard had carried out a careful rescue. But in turning this head damage into money it is not necessary to show that she would probably have become a solicitor. (For more on calculation of damages for personal injuries, see Chapter 13.)

Activity 4.3 This case falls between Baker v Willoughby and Jobling v Associated Dairies. The second event is not a natural disease and it is not a tort. You have to decide which authority should be applied to these facts. Both views are arguable.

Activity 4.4 Feedback provided at the end of the activity.

Activity 4.5 No feedback provided.

Activity 4.6 Among the relevant differences are these: (a) In Dorset Yacht and to some extent in Al-Kandari there was responsibility on the part of D for X. There was none in the other cases. (b) Again in Dorset Yacht and Al-Kandari the criminal conduct was the very thing that might have been expected and not just a foreseeable possibility.

Activity 4.7 Clearly Delia’s negligence satisfied the ‘but for’ test of causation, but does Cecil’s decision amount to a new and intervening cause? Read McKew. Would you want to apply it to a conscientious as well as a foolhardy claimant?

UoL Intro to Tort_ch1to4

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