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Published: Fri, 02 Feb 2018
Remoteness of damage
We have already looked at causation, and the relevant factors, such as intervening acts and multiple causes. We said then that remoteness of damage came into those situations.
The general principle here is that the damage cannot be too remote from the actual breach of duty. We are looking for consequences that could be in the reasonable contemplation of the defendant.
Re. Polemis & Furness, Withy & Co. (1921) Old Approach – Not Good Law
- Ship’s charter, and charterers had filled cargo hold with petrol
- During the voyage the cans leaked vapour, and when the shi reached the harbour it was unloaded
- Planks were positioned to walk over the opening of the hold, and one of the dock workers (stevedores) negligently knocked it down into the hold
- The plank falling caused a spark, which ignited the vapour, and the cans, and burnt ouf the ship, causing £200k damage.
- First instance: ship’s charterers could not reasonably have foreseen this
- COA. charterers should be liable for any loss as a result of their breach of duty, unless it was not linked in any way to the negligent act itself, even though not reasonably foreseeable. Therefore, defendant liable for all the natural and direct consequences of the breach, provided only some damage is foreseeable. BROAD APPROACH to some ‘kind of damage’
Overseas Tankship Ltd V Morts Dock & Engineering Co (The Wagon Mound) (1961)
- The defendants spilled furnace oil from their ship into Sydney harbour
- The oil had a flashpoint of 170 degrees, and they believed it wouldn’t burn on water
- The claimants enquired as to whether it was safe to continue welding on the wharf 200 yards away, and were given the answer yes
- Two days later some molten metal spilled onto a cotton rag soaked in oil, floating in the sea. It ignited and burnt down the claimant’s wharf
HELD. Following the principles laid down in Polemis, the defendants were liable
PRIVY COUNCIL. Not liable, as reasonable man could not possibly have foreseen the wharf would be damaged in this way, as a result of the defendant’s act. All the issues such as the flashpoint, were taken into account. Polemis declared as no longer good law. NARROW APPROACH
We can clearly see from both of these cases that the issue of reasonable foreseeability is an issue. Were the consequences of the damage within the reasonable contemplation of the claimants. In Polemis the damage incurred was probably the furthest thing from the Defendant’s mind, which is why it is bad law. In Wagon Mound the correct approach was used, and the Defendants were therefore not liable for an indeterminate amount of events.
Hughes V The Lord Advocate(1963)
- Post Office employees were working down a manhole with a little tent around it.
- When they went for a cuppa, they put red warning paraffin lights around it
- Two boys of 8 and 10 who were playing nearby picked up one of the lamps and accidentally dropped it down the manhole, causing an explosion.
- One of the boys was badly burnt.
- Defendants argued not liable as not foreseeable that the boy would be injured in this way.
- Held. HOL. The events which followed were unforeseeable but the possibility of someone being burned from leaving paraffin lamps around was possible. This is exactly what happened, even though not in a foreseeable way. This should have been in the defendant’s reasonable contemplation
The pattern that is emerging is that the defendant will not be held liable for an indeterminate event for an indeterminate time. There has to be a limit. It seems that if the type of damage would be foreseeable, then liability will be imposed, whether or not the chain of events leading to it were foreseen or not.
Doughty V Turner(1964)
- A cauldron of sodium cyanide at 800 degrees had an asbestos cover over it
- The cover was negligently knocked into the cauldron, reacting with the liquid and exploding
- The claimant, who was standing nearby was injured
- Held. First Instance. Type of injury foreseeable from this was burning from splashing, and therefore the Defendant is liable, following Hughes
COA. No knowledge that the lid falling would cause a chemical reaction, so explosion not foreseeable. Only risk was splashing. They did distinguish Hughes and the Wagon Mound
Harman LJ ‘in my opinion, the damage here was of an entirely different kind from the foreseeable splash’
Other issues here were that no-one thought the lid was dangerous (hardboard), and two people even went to look into the cauldron to see where it had gone! Issue was that no damage was really foreseeable from the lid falling, and the splash.
Many feel that this decision was too harsh, and that being splashed by cyanide would burn you. If you follow Hughes then this decision should be in favour of the claimant but the witness evidence was very much in favour of the Defendants.
Tremain V Pike(1969)
Claimant worked on a farm, which had become over-run by rats. His main job was to look after cattle. He contracted a rare disease ‘weil’s’ caused by rat’s urine.
Held. Payne J. ‘this is my view is entirely different in kind from the effect of a rat bite or food poisoning from consuming food infected by the rats’
Therefore, the damage was too remote. The disease was not foreseeable.
Remember, we are looking for a type of foreseeable damage, and bites would be possible but not this disease. Harsh law again.
Bradford V Robinson(1967)
The claimant had to drive his fan from Bradford to Exeter (500 miles) in January. His heater didn’t work, and his window was stuck open. He got frostbite.
Held. Frostbite is a common and foreseeable injury from prolonged exposure to extreme cold.
Pigney V Pointers Transport Services Ltd (1957)
The claimant injured his head at work due to the Defendant’s negligence. Some years later he hanged himself as he was suffering from acute anxiety and depression caused by the original injury.
Held. COA. original injury was still operating, and anxiety/depression are a common cause of damage to the head.
Vacwell Engineering V BDH Chemicals (1971)
A chemical that exploded on contact with water was supplied by the Defendants to the claimants without any warnings on it. One of the claimant’s employees placed the chemical with water, and a massive explosion occurred
Held. Property damage foreseeable as a result of explosions, and the amount was irrelevant. The damage was extensive in this case
Alcoa Minerals Of Jamaica V Broderick(2002)
The claimant’s property was damaged by the defendant’s negligence. The claimant could not afford to carry out the repairs until he received judgement against the defendant, and by the time he did the cost of repairs had gone up by 300%.
Held. Defendant liable for full cost, as this would have been in his contemplation
One relevant area within remoteness is the eggshell skull principle. Basically, this is the same as in criminal law, in that you must take the claimant as you find him. Therefore, if he has some kind of weakness, you have to accept this.
Smith V Leech Brain(1962)
The claimant burnt his lip due to the defendant’s negligence. He had a pre-cancerous condition which then turned cancerous.
Held. Defendant liable for all his damage
Robinson V The Post Office(1974)
The claimant slipped on a ladder, cutting his shin, due to the defendant’s negligence.
He went to hospital, and was given an anti-tetanus and got brain damage.
The doctor could not have tested for a reaction to tetanus, and the Defendants only wanted to be liable for the damage to the claimant’s shin.
Held. Take the claimant as you find him. The tetanus jab is foreseeable with most injuries, particularly ones where there is dirt or broken skin.
You can also have an eggshell personality.
Meah V Mccreamer(1985)
The claimant was a passenger in a defendant’s car. The defendant had been drinking and caused an accident, injuring the claimant’s head.
The claimant had a personality change, and started attacking and raping women. He had previously been a petty criminal.
He was sent to prison for life, and sued the defendant in negligence, stating that he would not have done these things if it hadn’t been for the head injuries
Held. £60k compensation, taking into account free board and lodgings in prison
The women he attacked then sued him and got compensation. He then tried to recover this from the defendants. Court wouldn’t allow this as this would be indeterminate liability, and not within the reasonable contemplation of the defendants
Page V Smith(1995)
The claimant suffered from ME. He was involved in a car accident caused by the defendant’s negligence. He hadn’t had problems with ME for years but it came back with a vengeance after the accident. (this case also nervous shock case)
Held. Defendant liable
Walker V Northumberland County Council (1995)
- The claimant was employed by the Local Authority as a social worker from 1970 to 1987
- He suffered a nervous breakdown in 1986, and before his return to work, his caseload was discussed with superiors, and assistance offered.
- When he returned to work, nothing had changed, just as much work, a backlog of cases to clear.
- 6 months later he had a further breakdown, resulting in permanent ill health.
- In February 1988 he was dismissed by the Authority, and the claimant brought action for breach of duty to take steps to avoid a health-endangering workload
Held. Prior to 1986 his breakdown was not foreseeable but he should have been given extra help, and in not doing so the authority were in breach of their duty. The second breakdown should have been in their reasonable contemplation, as they knew of the first and had not taken steps to reduce his workload.
Kirkham V Chief Constable Of Manchester Police(1989)
Claimants were suing for a man who had committed suicide in prison. Prison staff had not been told of his suicidal behaviour. The prisoner was deemed insane, as he was clinically depressed, and therefore authorities liable.
Reeves V Commissioner Of Police(1999)
A sane prisoner committed suicide in custody, and again the police knew of his tendencies.
Held. HOL. Lord Hoffman ‘it would make nonsense of the existence of such a duty if the law were to hold that the occurrence of the very act which ought to have been prevented, negatived causal connection between the breach and the death’
The police and prison staff have a duty to prevent suicide, particularly when they are aware of these tendencies.
Simmons V British Steel(2004)
The claimant had an accident at work, caused by the defendant employer’s negligence. He had a pre-existing skin condition and suffered from depression, and these were both made worse after the accident. He was also very angry about his accident.
Held. Employer must take claimant as he finds him, and he is a primary victim regarding his accident and skin condition, so there was not any need to explore the possibility of foreseeability for his depression
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