Wednesday, November 15, 2006


Tuesday 14 November 2006

We continued from last week by looking at a very important factor when considering whether there has been a breach of a duty of care, namely a person who claims to have a special skill. He is judged by the standards of a reasonable person possessing the skill which he claims to possess. A solicitor will have the skills of the ‘average’ solicitor, ditto the plumber and car mechanic. He does not have to be the best in his profession, by definition there can only be one.

This can be illustrated by cases of medical negligence. The rule was set in Bolam v Friern Hospital Management Committee (1957). The case is referred to as the “Bolam Test”. The test is the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest expert skill at the risk of being found negligent. . . (A) doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art.”

So all that is necessary is to ask other people who possess the same skill.

If, within a profession, there exist areas of specialist expertise, the claimant is entitled to expect that the defendant will exercise reasonable skill by reference to the expertise claimed. The facts of Matrix Securities Ltd v Theodore Goddard (1997) concerned the alleged negligence of both specialist taxation solicitors and the counsel whom they instructed on behalf of their clients. Although, on the facts, there was no negligence on the part of either legal adviser, it was noted that a solicitor who instructs counsel should not accept, blindly, whatever advice the barrister gives, but should be prepared to exercise his/her own independent judgment as to the accuracy and quality of that advice.

Where hospital treatment is provided by a specialist unit of medical staff (for example in an intensive care unit) there is no concept of “team negligence”. Rather the standard of care to be expected of any individual member of the team is to be determined by reference to the post held by the doctor and the acts which the doctor has elected to perform. Inexperience as such is no defence and a junior doctor may meet his or her own duty of care by seeking the advice and skilled assistance of a more specialist doctor/colleague: Wilsher v Essex Area Health Authority (1987) in the Court of Appeal. We will return to this case later.

The Bolam test is applicable to diagnosis and treatment. A different question is the extent to which a doctor should inform a patient of the risks inherent in a particular course of treatment, so that the patient can give “informed” consent. In Sidaway v Bethlem Royal Hospital Governors (1985), a case we have already discussed, the claimant suffered from neck pains and was advised by her surgeon that she should have an operation. The surgeon did not tell her that there was a 1% risk of damage to the spinal cord from such an operation. The claimant consented to the operation but suffered damage to her spinal cord, without negligence on the part of the surgeon. The House of Lords held that there is no doctrine of informed consent in English law.

There will be some situations where the doctor considers that disclosure of certain information regarding risks will undermine the patient’s ability to cope with his condition. Here a doctor will be justified in remaining silent about the risks. The difficulty in these cases is the medical view that patients may not undertake treatment likely to be beneficial if they know that there is even a slight risk involved. Balanced against this is the patient’s right to know, so that he can give consent based on genuine choice.

So far as proving the breach is concerned, the basic rule is that he who alleges must prove. The burden of proof lies on the claimant to prove (on civil standard) that the defendant acted without reasonable care. To this there are two exceptions, one statutory and one coming from the common law.

Section 11 CIVIL EVIDENCE ACT 1968 provides that a conviction on a criminal charge is admissible as evidence in a civil case based on the same facts. To escape liability the defendant must prove he was not negligent. This could apply, for example in motor accident cases. If the defendant has been convicted of dangerous driving then a rebuttable presumption of negligence is created. Whilst this might seem difficult it is not necessarily the case that driving through a red traffic light (a crime) amounts to negligence (a tort).

Of far more importance to us is RES IPSA LOQUITUR, which means that the thing speaks for itself. In some circumstances the court are prepared to accept that the defendant is negligent without hearing detailed evidence. The origins lie in the case of Scott v London and St Katherines Docks (1865), where the claimant was struck by some bags of sugar when walking past the defendant’s warehouse.

In order to utilise res ipsa loquitur the claimant must prove three things:

(1) the thing causing the damage or the event must have been under the defendant’s exclusive control. This means that the mere occurrence of the accident should point to negligence on the part of the defendant and no-one else. A straightforward example can found by comparison of two cases, both involving the railways. In Gee v Metropolitan Railway (1873) the claimant leaned against a train door shortly after it left the station, and fell out. As the door had recently been under the control of the defendants, there was evidence of negligence on their part. Contrast with Easson v London & North Eastern Railway (1944) where the claimant fell from the train some seven miles out of the station. Res ipsa loquitur was held not to apply as any of the other passengers could have interfered with the door.
(2) the accident should be of a sort that does not happen in the absence of negligence. Scott explains this nicely. For example, stones are not normally found in buns, barrels do not normally fall from upstairs windows, unless there has been negligence on someone’s part.
(3) there must be no explanation for the accident. If all the facts are known, the only question is whether negligence can be inferred. A defendant can escape liability by giving an explanation for the accident which is consistent with absence of negligence on his part.

A very strange example appears in the case of Widdowson v Newgate Meat Corp. (1997). The claimant suffered from a serious mental disorder and could not give reliable evidence about the accident in which he was knocked down by a van whilst he was walking along a dual-carriageway one night. The vehicle in question was being driven by an employee of the defendants and they chose to call no evidence leaving the judge in the difficult position of having no evidence from either party! The Court of Appeal held that in such circumstances res ipsa loquitur assisted the claimant to establish a prima facie case against the defendants which they had failed to defend at their peril. The claimant was, however, found to be 50% contributorily negligent.

The third ingredient of the tort of negligence is concerned with causation and remoteness of damage. Until the claimant has suffered damage there is no action. This can be contrasted with torts actionable per se, for example trespass and libel.

The claimant must prove that the damage suffered was caused by the defendant’s breach of duty (referred to as causation in fact) and that it was not too remote (causation in law).

Causation in fact is concerned with the question of whether as a matter of fact the damage was caused by the breach of duty. If a person is found dead on a railway crossing having been run over by a tram, and a train has failed to sound a warning before using the crossing, all the elements of negligence are present. The railway company owes a duty of care to persons using the crossing. There is a breach of duty by not sounding a warning. The claimant has suffered damage. But there is no negligence action until it is established that the train that ran over the claimant was the one that failed to sound a warning.

Remoteness of damage arises where causation in fact is established, but the damage is not regarded as having been legally caused by the breach of duty. A cut off point where the defendant ceases to be liable is established and beyond this point the damage is said to be “too remote”. For example, remember the example concerning the woman with the tray of tea who witnesses an RTA?

The rules for assessing remoteness of damage (below) operate to limit the overall extent of the defendant’s liability to the claimant. Where a further event occurs, after the breach of duty, which contributes to the damage, this later event may amount to a novus actus interveniens, a new and intervening act. It breaks the chain of causation and renders any new damage too remote.

The “but-for” test exists to ask whether “but-for” the action of the defendant the consequence would not have occurred. In Barnett v Chelsea And Kensington Hospital Management Committee (1969), the claimants husband complained of vomiting and pain when he attended the defendants’ hospital. No examination was ordered and he was referred to his own doctor. Five hours later he died of arsenic poisoning. The defendants were in breach of duty by not examining him, but tests showed that he would have died even if the doctor had examined him. Diagnosis and treatment could not have been effective in preventing the death. As the deceased would have died regardless of the breach of duty, that breach was not a cause of his death.

Dingley v C.C. Strathclyde [2000]: the claimant suffered whiplash in a road accident and was off sick for three days. Seventeen days later came the onset of MS. There was evidence that the trauma may lead to MS, but the House of Lords said that there was no proof of a causal link.

The problem of proving a breach of a duty where more than one defendant may have caused the damage complained of was the subject of the important House of Lords decision in Fairchild v Glenhaven Funeral Services [2002]. In conjoined appeals covering a number of workers who had contracted mesothelioma during a time in which they had worked for more than one employer, the Court of Appeal said no liability attached to any of the employers as the claimants could not prove on the balance of probabilities the period of employment in which they inhaled the asbestos fibre which started the disease. The House of Lords accepted that Wilsher had been correctly decided on its facts, but applied the principle in McGhee (which had been doubted in Wilsher) and reversed this decision. It is enough, said Lord Bingham, that the claimant can show that each employer’s negligence materially increased the risk of their contracting the disease. The injustice of denying a claimant a remedy outweighs any injustice caused by holding the defendant (who had been proven negligent) liable for injuries for which they might not have been responsible.

The above case was distinguished by the Court of Appeal in Barker v Corus [2006]. The case was not concerned with mesothelioma, but another industrial disease. The court held that the joint defendants were not jointly & severably liable (as in Fairchild), but severably liable only. This means that the claimant would have to sue each and every one of the defendants

Section 3 Compensation Act 2006 was enacted to overcome the decision of the Court of Appeal, and restore the position to that of Fairchild.

We then looked at multiple causes, both successive or concurrent.

Where the causes are successive and the second defendant’s breach of duty of the causes the same damage as that of the first defendant, the “but-for” test will exonerate the second defendant. In Performance Cars Ltd v Abraham (1962) the second defendant’s car negligently collided with the claimant’s car. The claimant claimed £75 as the cost of a respray, but, at the time of the accident, the car already required a respray as a result of a collision with the first defendant. The second defendant was not liable, as the need for the respray did not arise from his breach of duty.

If the second defendant has caused similar or increased damage and the first defendant is sued, then a different approach is taken. In Baker v Willoughby (1970), the claimant suffered injuries to his left leg as a result of the defendant’s negligence. Before the trial, the claimant was shot in the left leg during an armed robbery and had to have his left leg amputated. Even if the robbers could have been identified and sued to judgment, they would only have been liable for depriving the claimant of a damaged leg. The House of Lords held the defendant liable for the ongoing disability caused by their earlier negligence, irrespective of the fact that the robbers had deprived the claimant of the leg in question. Lord Pearson commented: “The supervening event has not made the appellant less lame nor less disabled nor less deprived of amenities. It has not shortened the period over which he will be suffering. It has made him more lame, more disabled, more deprived of amenities. He should not have less damages through being worse off than might have been expected.”

This approach was distinguished in a later House of Lords case where the defendant’s breach of duty was followed by a natural event. In Jobling v Associated Dairies (1982) the claimant suffered a back injury as a result of the defendant’s breach of duty. It had occurred in 1973. The claimant had to take a lower paid job, & his income had been reduced by 50%. Before the trial in 1979 the claimant was found to be suffering from an unrelated back disease, rendering him totally unfit to work from 1976. The House of Lords limited the defendant’s liability to the period before the onset of disease. They criticised the reasoning in Baker, but did not overrule it.

So what’s the difference between the two? Well, in Baker v Willoughby there were two torts (negligence & trespass) whereas in Jobling there is only one (negligence).

Damages may be denied even though the claimant has established a causal link between the breach of duty and his damage. Policy considerations again play a part, the courts do not wish to impose too high a burden on the defendant and his insurers. In these cases the damage is said to be “too remote.”

The basic test remained the same until 1961 and was then changed by a Privy Council decision. The earlier test, however, still provides the basis of the remoteness test in some other torts.

At one stage it was sufficient that physical damage was a direct consequence of the defendant’s breach of duty - Re Polemis (1921). A plank was negligently dropped into the hold of a ship. Benzene vapour in the hold was ignited by a spark caused when the plank was dropped. The ship was destroyed in the ensuing fire. “Once the act is negligent, the fact that its exact operation was not foreseen is immaterial.”

Note that for the defendant to be liable at all, he must owe the claimant a duty of care. For a duty to arise, some damage must be reasonably foreseeable. In Polemis some damage was foreseeable as a result of the dropping of the plank, which establishes the duty. The explosion was a direct result of the breach and, therefore, was not too remote even though the kind of damage could not have been foreseen.

This test was rejected by the Privy Council in Overseas Tankship (UK) Ltd v Morts Dock & Engineering Co. (The Wagon Mound (No. 1)) (1961). The defendants negligently discharged fuel oil into Sydney Harbour. Some time later the oil spread to the claimant’s wharf, where welding operations were in progress. A spark from a welding torch ignited the oil and caused considerable fire damage to the wharf. The oil also caused fouling to the wharf. The trial judge found that it was not foreseeable that fuel oil on water would catch fire, but that some foreseeable damage in the form of fouling was caused. It followed that there was a duty of care and a breach of that duty. However, the Privy Council held that the defendants were not liable for the fire damage. They applied a test for remoteness of damage of whether the type of damage suffered was a reasonably foreseeable consequence of the defendant’s breach of duty. As it was not foreseeable that the oil would catch fire on water, the fire damage was an unforeseeable type. It was in fact the opinion of experts that oil, of this type and in these conditions, would not ignite. Their Lordships expressed the opinion that RE Polemis should no longer be considered as good law (for negligence claims only) because it was not consistent with ideas of justice or morality that for an act of negligence, however slight or venial . . . the actor should be liable for all consequences however unforeseeable and however grave, so long as they can be said to be ‘direct’”.

This test is less favourable to the claimant as it involves the court making fine distinctions between types of damage, but in practice the attempt to narrow the definition has been avoided by a number of devices.

We will continue with this next week.

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