LAW 2007 EXAM PAPER.
ANSWERING QUESTIONS 2&3.
3. An essential component for a successful claim in negligence is that the claimant has
suffered losses; this loss must be a type recognised by the law; and there must be a
casual link between breach and loss otherwise known as consequential loss.
The court will look to see if the defendant has caused or contributed to the
claimants injury or loss. This is done using the but for test which tests to see whether
the damage would not have happened but for a particular fault, then that fault is the
cause of the damage. The but for test was applied in the case of Barnett v Chelsea
and Kensington Hospital Management Committee. In this case, one out of three
workmen had a cup of tea, and after a bout of vomiting, consulted a doctor. The
doctor told the man to see his local doctor the following morning, and by the time the
next morning came, the man died. It turned out that there was arsenic in his tea and
high levels of it in his system and therefore he would have died anyway even if the
doctor had tended to him more so than he did. It was held that the doctor was not
liable as even though the doctor breached his duty, there was no consequential
damage. Using the but for test therefore means that liability in negligence is
established when there is a breach of the duty of care owed by the defendant to the
claimant that causes loss and damage, and it is reasonable that the defendant should
compensate the claimant for that loss and damage.
However, there are problems with the but for rule in terms of concurrent
cases such as in the case of Summers v Tice where two people were shooting, missed
their target and hit the claimant; in this case, both were held liable. Problems also
arise where there is evidential uncertainty such as in the case of McGhee v National
Coal Board where a man got dermatitis a skin disorder and it was unsure at the
time what had caused this: either the dust he was exposed to at work or the dust he
was exposed to during cycle his home. The employer was held liable as by not having
a shower in the work place increased the risk of the man getting this disorder. Finally,
consecutive cases also pose issues such as those in Performance Cars v Abraham
where a car that had previously been hit was hit again. It was held that the second
defendant was responsible for the damage he had caused and was to pay damages to
put the car back to how it was prior to the accident namely, a car that needed a
respray.
Once this factual connection has been established between tort and loss, it is
essential to ask whether the damage sustained was too remote and to do so, it requires
the test of responsible foreseeability would the reasonable man foresee that the
damage caused for his act? This is used because if the but for test was the sole test it
would lead to widespread liability, and in a growing compensation culture, this could
have a negative effect within both business and society, preventing situations where
desirable activities would stop in fear of litigation. Breach of the defendants duty of
care will often fail under this test.
Where there is a new intervening act this may break the chain of
causation removing liability from the defendant. The legal test applicable will
depend upon whether the new action was by a third party or an act of the claimant. In
intervening acts of a third party, the test applied is whether it was foreseeable. In the
case of Lamb v Camden Council it was not foreseeable that the squatters were going
to cause further damage to the property that the council had already negligently
caused with flooding due to the water main problems. However, with acts of the
claimant acting as an intervening act, the test is whether the claimant was acting
reasonable within the circumstances. In the case of McKew v Holland where an injury
caused by negligence at work followed by Mr McKew descending the stairs and
causing further injury, it was held that the defendant was not liable for second
accident.