UCD Tort 4 Slides Remoteness PDF

Tort Law: Negligence & Related Matters Dr. Sarah Fulham-McQuillan  Review Quiz! Review last 4 lectures 1. Introduction: What is Tort Law? 2. Negligence: Four Elements and Duty of Care. 3. Negligence: Breach and Standard of Care 4. Negligence: Causation and Remotene...

Tort Law: Negligence & Related Matters Dr. Sarah Fulham-McQuillan  Review Quiz! Review last 4 lectures 1. Introduction: What is Tort Law? 2. Negligence: Four Elements and Duty of Care. 3. Negligence: Breach and Standard of Care 4. Negligence: Causation and Remoteness Dr. Sarah Fulham-McQuillan What is Tort Law? What does the word “Tort” mean? What is the Function of Tort Law? How does Policy Influence Tort Law? What interests does Tort Law protect? What is the difference between Tort Law and Criminal Law? What is the difference between Tort Law and Contract Law? Dr. Sarah Fulham-McQuillan Dr. Sarah Fulham-McQuillan Dr. Sarah Fulham-McQuillan Dr. Sarah Fulham-McQuillan Dr. Sarah Fulham-McQuillan Dr. Sarah Fulham-McQuillan  Topic 3 Standard of Care Dr. Sarah Fulham-McQuillan Dr. Sarah Fulham-McQuillan Dr. Sarah Fulham-McQuillan Dr. Sarah Fulham-McQuillan Dr. Sarah Fulham-McQuillan Breach of Duty and Standard of Care How do we determine whether a duty of care has been breached? What is the ‘reasonable person’? What four factors are taken into account in determining whether conduct amounted to a breach of duty? What is wrong with having an objective standard? Are there any exceptions made? Dr. Sarah Fulham-McQuillan  Topic 4 Causation and Remoteness Dr. Sarah Fulham-McQuillan Dr. Sarah Fulham-McQuillan Dr. Sarah Fulham-McQuillan Recap… Dr. Sarah Fulham-McQuillan  Elements of the Tort of Negligence 1. Duty of care: did the defendant owe a duty of care to the plaintiff? 2. Breach: If a duty of care was owed, did the defendant’s actions (or omission) breach that duty? ie Did the defendant conform to the required standard of behaviour? 3. If the duty was breached, has the plaintiff suffered loss, or damage? (eg physical injury) 4. Can it be said that the damage was caused by that breach? Dr. Sarah Fulham-McQuillan  Causation What is causation? How do courts determine whether the plaintiff’s harm was caused by the defendant’s negligence? Is the ‘but for’ test the best test to use in every case? If not, for which types of cases is it not suitable? What does it mean for the ‘chain of causation’ to be broken? How do courts test to see whether the plaintiff’s harm is too remote from the defendant’s negligence? What is the ‘egg shell skull’ rule? Dr. Sarah Fulham-McQuillan  Causation 2 step enquiry 1. Factual cause 2. Legal cause Dr. Sarah Fulham-McQuillan  Causation: the ‘But For’ Kenny v O’Rourke test IR 339 (SC). Barnett v Chelsea and Kensington Hospital Management Committee 1 QB 428 *Duffy v Rooney and Dunnes Stores IEHC 102 (HC, 23rd June 1997) Dr. Sarah Fulham-McQuillan  Multiple Sufficient Causes Baker v Willoughby AC 467 (car accident and shot in leg) Jobling v Associated Dairies Ltd AC 794 (work-related injury and unrelated back injury) R(L) v Minister for Health and Children 1 IR 744 (Hepatitis C and car accident) Dr. Sarah Fulham-McQuillan  Problems with the “But For” Test and the Need for Alternative Approaches Increase of Risk and Material Contribution Bonnington Castings Ltd v Wardlaw AC 61 (two sources of dust – test?) McGhee v National Coal Board 1 WLR 1 (dust and no showers – test?) Fairchild v Glenhaven Funeral Services Ltd 1 AC 32 (asbestos single fibre & multiple employers – test?) Does Fairchild Represent the Law in Ireland? Quinn v Mid-Western Health Board 4 IR 1 (brain damage to baby, negligent delivery but other issues too – test?) Dr. Sarah Fulham-McQuillan Alternatives to the ‘but for’ 1. test:contributed to the Materially injury 2. Materially increased the risk of injury 3. Materially increased the risk of injury but only when the competing causes are identical Dr. Sarah Fulham-McQuillan Novus Actus Interveniens Breaking the Chain of Causation Dr. Sarah Fulham-McQuillan Breslin v Corcoran 2 IR 203 Owner of a car left it parked at the side of the road unlocked and with the key in ignition. The car was stolen by a joyrider and was crashed into the Plaintiff causing injuries. Should the owner of the car or the joyrider be responsible? Dr. Sarah Fulham-McQuillan  The court held that while it was reasonably foreseeable that the car would be stolen, it was not reasonably foreseeable that it would be driven carelesslessly … Dr. Sarah Fulham-McQuillan  Fennelly J in the Supreme Court said, ‘A person is not normally liable, if he has committed an act of carelessness, where the damage has been directly caused by the intervening independent act of another person, for whom he is not otherwise vicariously responsible. Such liability may exist , where the damage caused by that other person was the very kind of thing which he was bound to expect and guard against and the resulting damage was likely to happen, ifDr.heSarah did Fulham-McQuillan not.’ Novus Actus Interveniens McMahon and Binchy note that the two factors feature in the judges’ approach to this question: 1. Whether and to what extent the intervening act was foreseeable by the original actor, and 2. What was the mental attitude of the subsequent intervenor, was he careless, grossly negligent, reckless, or did he intend to do damage? Dr. Sarah Fulham-McQuillan Conole v Redbank Oyster Co IR 191 A boat was built for the defendants by a company called Fairway Fabrics Ltd. The defendants knew that the boat that was built for them was unsafe and not seaworthy. They knew this because at a ceremony to launch the boat, the problems with it showed up when doing trial runs. An order was made to tie up the boat, and refreshments were served in the community hall. But, the captain decided to take it upon himself to take 50 children out in the boat. Dr. Sarah Fulham-McQuillan  The boat capsized with so many people in it, and the plaintiff’s daughter and nine others were drowned. The plaintiff took an action against the defendants for taking the boat out, but the defendants wanted to get a contribution to the damages from the makers of the boat. The Supreme Court refused to allow that – the Court said that the sole cause of the accident was the defendant’s negligence through the recklessness of their captain. Dr. Sarah Fulham-McQuillan  ‘In terms of legal causation, there was only one act of negligence in this case: it was the defendants’ act of putting to sea in a boat which they knew to be unseaworthy and which was overloaded with unsupervised young people … The direct and proximate cause of this accident was the decision of the defendants … to put to sea with passengers when they had a clear warning that the boat was unfit for the task. The defendants were the sole initiators of the causative negligence …’ - Henchy J, Conole v Redbank Oyster Co, 196-197. Dr. Sarah Fulham-McQuillan  Remoteness of Damage Direct Consequences? Re Polemis 3 KB 560 Dr. Sarah Fulham-McQuillan Re Polemis 3 KB 560 The defendant's employees were loading cargo into a ship. Due to an employee's negligence, a plank fell into the hold of the ship. The plank caused a spark, which ignited some petrol vapour in the hold, causing an explosion that destroyed the ship. Dr. Sarah Fulham-McQuillan  The owners were entitled to recover for the loss of the ship, even though that loss was unforeseeable, as was the way in which the loss occurred. It was not foreseeable that the ship would be destroyed by a plank falling to the hold, causing a spark, and that that would ignite the petrol vapour … Dr. Sarah Fulham-McQuillan Bankes LJ said, ‘once the defendants were responsible for negligence which led directly to the loss, it is immaterial that the causing of the spark by the falling of the plank could not have reasonably been anticipated.’ Dr. Sarah Fulham-McQuillan  Scrutton LJ in that case made important statements about this principle. He pointed out that reasonable foreseeability is important in determining whether an act is negligent. But reasonable foreseeability has nothing to do with the type of damage that might occur. “the fact that the damage [the negligent act] causes is not the exact kind of damage one would expect is immaterial, so long as the damage is in fact directly traceable to the negligent act … Once the act is negligent, Dr. Sarah Fulham-McQuillan the fact that its exact operation was not foreseen is immaterial.”  Under the rule of direct consequences, a person is liable or responsible for all the consequences of his wrongdoing, up until some sort of intervening act. Without such an intervening act, a defendant would be liable for all of the consequences once a factual cause was established. Dr. Sarah Fulham-McQuillan  Causation and Remoteness of Damage Or… Reasonable Foreseeability? The Wagon Mound (No. 1) 1 AC 388 Hughes v Lord Advocate AC 837 Wieland v Cyril Lord Carpets Ltd 3 All ER 1006 Spencer v Wincanton Holdings Ltd (Wincanton Logistics Ltd) EWCA Civ 1404 (21 December 2009) Mustapha v Culligan 2008 SCC 27, 2 SCR 114 Dr. Sarah Fulham-McQuillan The Wagon Mound (No. 1) 1 AC 388 Dr. Sarah Fulham-McQuillan The Wagon Mound (No. 1) 1 AC 388 Introduced the principle that reasonable foreseeability should be the criterion for determining whether liability should attach to the consequences of the defendants negligence. The main idea underpinning the reasoning in that case was that, since the obligation in negligence is to avoid foreseeable risks, then liability should only attach to those reasonably foreseeable risks. Any other injury that was not reasonably foreseeable shouldn’t be attached to Fulham-McQuillan Dr. Sarah the defendant.  As Eoin Quill puts it, ‘both the existence and the extent of the obligation are determined by the same criterion – reasonable foreseeability.’ Dr. Sarah Fulham-McQuillan  The defendants negligently spilled oil into a harbour whilst loading their vessel. The oil spread to a nearby wharf, which was owned by the plaintiffs. In the wharf, the plaintiffs were repairing a ship. The parties thought that the oil could not catch fire as it was floating in water. But they were wrong. The oil ignited because of some molten material which had dropped from the plaintiff’s welding work. That ignited some debris that was floating in theDr. water, and in Sarah Fulham-McQuillan turn, ignited the oil that was floating on the  The plaintiff’s wharf was damaged by the fire, and they wanted to recover that loss from the defendants. But the court held that although it was foreseeable that there be some damage as a result of fouling, it was not foreseeable that damage would be caused by a fire. So because the damage to the wharf was in fact caused by the fire, it was not held to be foreseeable, and so the defendants were not held to be liable. Dr. Sarah Fulham-McQuillan “Their Lordships … have been concerned primarily to displace the proposition that unforeseeability is irrelevant if damage is ‘direct’. In doing so, they have inevitably insisted that the essential factor in determining liability is whether the damage is of such a kind as the reasonable man should have foreseen.” - Viscount Simonds, (The Wagon Mound) (No. 1), at 426. Dr. Sarah Fulham-McQuillan Two important things to note about that Wagon Mound No 1 decision: 1. that reasonable foreseeability of consequences is the test for remoteness of damage, and 2. that the courts might be quite precise about what type of damage was foreseeable – in Wagon Mound it was said that damage by fire was not foreseeable, but damage by fouling would have been. Dr. Sarah Fulham-McQuillan Just how precise must the damage be in order for it to be reasonably foreseeable? Dr. Sarah Fulham-McQuillan Hughes v Lord Advocate AC 837 On the question of what damage would be foreseeable, the House of Lords said that a negligent defendant will be liable, even where the precise circumstances of an accident are unforeseeable, if the injury was of a kind that was foreseeable. Dr. Sarah Fulham-McQuillan Wieland v Cyril Lord Carpets Ltd 3 All ER 1006 The judge said that ‘foreseeability of the general nature will, in my view, suffice.’ Dr. Sarah Fulham-McQuillan  The Egg Shell Skull Rule *Burke v John Paul & Co IR 277 Dr. Sarah Fulham-McQuillan  If the defendant could foresee a particular type of physical or psychological injury to the plaintiff, then he or she will be liable for all the physical or psychological injury that follows on account of the plaintiff’s particularly vulnerable pre-accident condition. Dr. Sarah Fulham-McQuillan Burke v John Paul & Co IR 277 Plaintiff was an employee of the defendant. He was injured at work whilst cutting steel bars with a hand-operated machine. The blades of the machine were blunt, and so the plaintiff had to exert more force than would normally be the case if the blades were maintained. The plaintiff had complained about this but nothing had been done. One day, the plaintiff, whilst cutting the steel bars felt a snap – he had suffered a hernia. Dr. Sarah Fulham-McQuillan  The defendant argued that he could not reasonably be expected to anticipate and foresee that the plaintiff might develop a hernia from having to exert such pressure on the blunt machine. The judge agreed, withdrew the case, but the plaintiff appealed. Dr. Sarah Fulham-McQuillan  In terms of remoteness of the damage, the defendant argued that medical evidence showed that a person will only develop a hernia if there is a congenital weakness, and there was no way of knowing this by way of an ordinary examination. Therefore, the defendants argued that they should not be responsible – they had no way of knowing of the plaintiff’s congenital weakness, and so it was not reasonably foreseeable that the plaintiff in using the blunt machine and having to exert extra pressure would develop a hernia. Dr. Sarah Fulham-McQuillan  But the court said that, even though it would not have been reasonably foreseeable, ‘The answer to this … is what is generally referred to as the “egg-shell skull rule” and I do not think that the rule has been impugned in any way by the Wagon Mound (No 1) decision”. As McMahon and Binchy say: “In other words, the tortfeasor takes his victim as he finds him”. Dr. Sarah Fulham-McQuillan  Causation and Remoteness What is causation? How do courts determine whether the plaintiff’s harm was caused by the defendant’s negligence? Is the ‘but for’ test the best test to use in every case? If not, for which types of cases is it not suitable? What does it mean for the ‘chain of causation’ to be broken? How do courts test to see whether the plaintiff’s harm is too remote from the defendant’s negligence? What is the ‘egg shell skull’ rule? Dr. Sarah Fulham-McQuillan Loss of a Chance “Loss of a chance is concerned with a person losing a chance of something that might have happened, but for the defendant’s negligence.” Two types: – physical injury has eventuated, – no physical injury has occurred. Dr. Sarah Fulham-McQuillan Asking not whether A caused B’s harm, but whether A deprived B of the opportunity or chance of a better outcome. Dr. Sarah Fulham-McQuillan Standard of proof… In tort law, and indeed, all civil law cases (so everything except criminal law) the onus or burden of proof is on the plaintiff to show that the defendant caused their injury. The plaintiffs have to prove that, on the balance of probabilities, the defendant caused their injury. That is called the standard of proof. Dr. Sarah Fulham-McQuillan Standard of proof… difficulties Standard of proof can cause problems when it comes to loss of chance because sometimes medical science shows that a person’s illness means that it is not probable that they will recover anyway, quite apart from anything that the doctor has done negligently. And in those cases, it can be difficult for the plaintiff to prove that the defendant probably caused their injury, because a court might say that the illness was the true case of the injury, not the doctor’s negligence. Dr. Sarah Fulham-McQuillan Chaplin v Hicks 2 KB 786 Claimant was an actress who entered a beauty contest organised by Hicks. Hicks advertised the contest in a newspaper. The readers of the newspaper were to vote and the top 50 would be invited to an interview where 12 would then be selected for employment. The claimant got through to the final 50 but did not receive her invitation for interview. Dr. Sarah Fulham-McQuillan  When she eventually did receive it, it was too late to attend. She brought an action based on her loss of a chance of winning the contest. She was awarded £100 assessed by the jury. Do you think she should have to prove that she would have been successful at interview? Dr. Sarah Fulham-McQuillan The Types of Loss of a Chance Solicitor’s negligence – loss of an economic chance Medical negligence – loss of a physical chance – a physical injury has eventuated, or – no physical injury has occurred. Dr. Sarah Fulham-McQuillan Loss of a Chance Chaplin v Hicks 2 KB 786 Tabet v Gett (2010) 240 CLR 537 Lawson v Lafferière 1 SCR 541 Hotson v East Berkshire Area Health Authority 2 All ER 909 Gregg v Scott 2 AC 176 Philp v Ryan 4 IR 421 Dr. Sarah Fulham-McQuillan