AQA Law Revision on Damages

1. Damage – Causation in fact By Kenisha Browning

2. General Principles The third aspect that must be proved if there is to be liability in negligence is that the broken duty caused the loss complained of, and that the law recognises that the loss is not too remote from the act. This is often referred to as damage and must be distinguished from damages which is the amount of compensation awarded.

3. General principles There are two parts to damage: causation and remoteness. Causation is the idea that the defendant must have caused the loss complained of. This is causation in fact. This is the same concept as in criminal law, but is illustrated by examples from the law of negligence. If no loss is caused then there is no claim in negligence. Remoteness is concerned whether the loss is reasonably foreseeable: causation in law. Both must be proved following a broken duty of care if there is to be liability for a claim in negligence.

4. This can be illustrated by the following diagram:

5. Causation in fact Causation in fact is the starting point. If there is no causation in fact, there is no point in considering whether there has been causation in law. Causation in fact is determined by the ‘but for’ test. The test is satisfied if it can be said that, but for the defendant’s act or omission the claimant would not have suffered the loss or harm. A different way of stating the test is to ask whether the prohibited result would have occurred if the defendant had not acted. If the prohibited result would still have occurred, even without the defendant’s actions, then something other than the defendant’s actions caused it and factual causation is not present.

6. Barnett V Chelsea and Kensington hospital management committee( 1968) The facts of the case are that the defendants managed a casualty department at a hospital. One night, three night watchmen arrived at casualty, complaining to a nurse on duty that they had been vomiting for three hours after drinking tea. The nurse reported their complaints by telephone to the duty medical casualty officer, who instructed her to tell the men to go home to bed and call their own doctors if they still felt ill in the morning. The casualty officer did not speak to the men or offer to examine them which would have been normal practice.

7. The men then left, and, about five hours later, one of them died from poisoning by arsenic. It seems that the arsenic had got into the tea, probably as a result of the mugs or teapot being used for mixing poison by someone else at the workplace. The medical opinion was that the claimant was likely to have died from the poisoning even if he had been admitted to the hospital wards and treated with all care for the five hours before his death. Barnett V Chelsea and Kensington hospital management committee( 1968)

8. Conclusion of case The hospital owed the deceased a duty of case, the hospital broke the duty of care by not reaching the standard of the reasonably competent hospital; but the hospital had not caused the death of the deceased as their failure toexamine him had not been proved to be the factual cause of his death. It should be noted that the judge stated the hospital had been negligent and only ruled out liability for the death. This means that the hospital could be liable for other losses following from their failure to examine the deceased.

9. Multiple causes It is not always straightforward to establish that the defendant’s act or omission caused the loss complained of. Sometimes there is more than one possible cause. The courts have started to use a modified rule on the grounds of public policy where there are ‘special circumstances’. This was set out in the case of Fairchild V Glenhaven Funeral Services Ltd (2002).

10. Fairchild V glenhaven funeral services ltd (2002) This case decided that a worker who had contracted mesothelioma ( a form of cancer caused by exposure to asbestos dust) could sue any of his previous employers’ negligence, even though the claimant could not prove which particular exposure had been the cause of the disease. It is understood that just one fibre from asbestos can cause the disease, but not every fibre inhaled will cause the disease. As a result of this uncertainty, the court decided all possible exposures to asbestos could have triggered the disease, and if any and all employers were not to be held to be the cause of the disease, the claimant would not succeed. It was, therefore, unjust on policy grounds to leave this type of claimant without a remedy in law.

11. Baker v corus (2006) In this case liability was placed on all those responsible for the exposure to asbestos so that liability is shared. This seems to Mean that, in the case of exposure to asbestos at any rate, the normal rule of causation in fact is modified. The difference between Fairchild and Barker is that the defendant in Fairchild had to take full responsibility for compensation and then try to find and claim against other possible sources of asbestos ( which might be difficult where a potentially responsible defendant has gone out of business); in Baker, each defendant sued by the claimant was liable for a given percentage of the award in proportion to the likelihood of having been the source of the asbestos that caused the disease.

12. Intervening acts As with criminal law, an intervening act can break the chain of causation. The intervening act is known as novus actus interveniens (new intervening act) and can be seen diagrammatically as:

13. Intervening act The defendant’s act may be said to cause the claimant’s damage, in that it satisfies the ‘but for’ test, but a second factual cause is the real cause of the damage. For example, suppose your head was injured at school by a tile falling off the roof (because the roof was badly maintained) , and your were taken to casualty by a teacher. On the way to casualty, the teacher’s car was hit by a bus that was being driven badly, causing you leg injuries. It could be said that ‘but for’ the tile falling off the rood you would not have suffered the leg injury. However, the real cause of the leg injury is the bus, not the tile, The bus is the novus actus interveniens. This means the injury to your head is caused by the tile, the injury to your leg by the bus.

14. Intervening act The principle that is applies is whether the resulting damage was a foreseeable consequence of the original act. The cases often appear to be decided on the basis of producing a just result as each set of facts are very different. This can be seen in Smith V Littlewoods (1987).

15. Smith V Littlewoods (1987) In this case the defendants purchased a cinema with a view to demolishing it and replacing it with a supermarket. They closed the cinema and employed contractors to make site investigations and do some preliminary work on foundations, but then left the cinema empty and unattended but locked. Vandals stated a fire in the cinema which seriously damaged two adjoining properties, one of which had to be demolished.

16. Smith v Littlewoods (1987) The court decided that a reasonable person in the position of the defendants would not foresee that if he took no action to keep the premises fully secure rather than just locked in the short time before the premises were demolished they would b set on fire and that would result in damage to neighbouring properties. The defendants had not known of vandalism in the area or of previous attempts to start fires, so the events which occurred were not reasonably foreseeable by the defendants and therefore the owned no duty to the plaintiffs, the vandalism being a novus actus interveniens.

17. Corr v ibc vehicles (2006) A more recent example is Corr V IBC Vehicles (2006). In 1996 Mr Corr was employed by the defendant as a maintenance engineer when he suffered severe head injuries in an accident at work caused by malfunctioning machinery. Following lengthy reconstructive surgery, he began to suffer post-traumatic stress disorder causing him to lapse deeper and deeper into depression. This was in contrast to his mental health before the accident, which had no known depression.

18. Corr v ibc vehicles (2006) In February 2002 he was admitted to hospital after taking a drug overdose; by March he was diagnosed as being at significant risk of suicide; in May he was further diagnosed as being as suffering from severe anxiety and depression and three days later he committed suicide. The court decided that the question was not whether the particular outcome was foreseeable but whether the kind of harm was foreseeable ( this is an example of ‘take your victim as you find him’) and, if it was, whether the eventual harm was, on grounds of policy or fact, too remote. Suicide does not necessarily break the chain of causation, and, as the evidence clearly established that there was no other cause than the depression that drove Mr Corr to suicide, there was no break in the chain of causation, and the defendant had been negligent.