Law of Tort

We were looking at remoteness of damage and began with two important decisions made by the House of Lords following the Wagon Mound decision.

IF THE KIND OF DAMAGE SUFFERED IS REASONABLY FORESEEABLE, IT DOES NOT MATTER THAT IT CAME ABOUT IN AN UNFORESEEABLE WAY: Hughes v Lord Advocate (1963). A portable tent was left over an exposed manhole. The tent was surrounded by paraffin lamps. A child, trespassing inside the tent, dropped one of the lamps down the hole, thereby causing an explosion in which the child suffered burns. Burning was a foreseeable type of damage, even though the precise manner of burning might not have been foreseen. This was the first opportunity of the House of Lords to consider the Privy Council’s preference for reasonable foreseeability as expressed in the Wagon Mound (No. 1). The Law Lords applied the test of reasonable foresight and further explained the nature of the test: “In order to establish a coherent chain of causation it is not necessary that the precise details leading up to the accident should have been reasonably foreseeable: it is sufficient if the accident which occurred is of a type which should have been foreseeable by a reasonably careful person.”

This has produced some strange results, e.g. Bradford v Robinson Rentals (1967) where the claimant suffered frostbite after travelling for his employer in an unheated van in terrible winter weather. The judge decided that the frostbite, albeit rare, was merely a form of injury which might be suffered after exposure to extreme cold. The defendant employer was, therefore, liable for the permanent injury caused by the frostbite.


2. PROVIDED THAT THE KIND OF DAMAGE IS FORESEEABLE IT DOES NOT MATTER THAT IT IS MORE EXTENSIVE THAN COULD HAVE BEEN FORESEEN. In Vacwell Engineering Co. v BDH Ltd (1971), the defendants supplied a chemical but negligently failed to warn that it was liable to explode on contact with water. When the chemical was placed in water there was a violent explosion which resulted in extensive damage. Some damage was foreseeable, even though the extent of the damage was unforeseeable. This did not matter, the defendants were held to be liable.

One particular example of the extent of damage principle is the so-called “egg-shell skull rule” - a defendant must take his victim as he finds him as regards his physical characteristics. In Smith v Leech Brain (1962), a negligently inflicted burn on the lip caused an employee who had a pre-malignant condition to develop cancer. The defendants were liable for the damage resulting from the claimants death even though death itself was not foreseeable.

A novus actus interveniens means a new and intervening act which may break the chain of causation.

If A negligently runs over B, who is subsequently run over by C, C’s action is unlikely to break the chain of causation, as this is a risk to which A’s negligence exposed B. But if C stole B’s wallet, the court would be unlikely to find A liable, as this was not a risk to which A had exposed B.

A novus actus interveniens may take one of three forms.

(1) A NATURAL EVENT. The courts are reluctant to find that an intervening natural event breaks the chain of causation as the claimant has no one else to sue. If the defendant negligently starts a fire and strong winds cause the flames to spread to the claimant’s property the court will not allow the wind to break the chain of causation. However, if the natural event causes damage simply because the breach of duty has placed the claimant in a position where the damage can be caused, the chain of causation will be broken, unless the natural event was likely to happen.
(2) ACT OF A THIRD PARTY. Where the defendant’s duty is to guard the claimant or his property against damage from a third party, the third party act will not break the chain of causation. In Stansbie v Troman (1948), the defendant decorator was told to lock the door when be went out. He failed to do so and the claimant’s jewellery was stolen. The thief’s action did not break the chain of causation. See also Smith v Littlewoods (1957) discussed previously.
(3) IT MAY BE THE ACT OF THE CLAIMANT HIMSELF. Where the claimants lack of care for his own safety and the defendant’s breach of duty are regarded as causes of the harm suffered, this is normally a question of contributory negligence. (See 6.2.) But there are circumstances where the claimants conduct may exonerate the defendant regarding the injuries suffered in the second event. The test is whether the claimant has acted reasonably. In McKew v Holland, Hannen and Cubbits (Scotland) Ltd (1969), as a result of the defendant’s negligence the claimant sometimes lost control of his injured leg. While holding his young daughter by the hand, the claimant attempted to descend a steep staircase with no hand rail. His leg gave way and after pushing his child back, he jumped to avoid falling and broke his ankle. The claimants decision to descend the staircase was the moment when he acted unreasonably; he took an unnecessary risk at that time, not when he decided to jump. In the agony of the moment such a choice might have been reasonable. Contrast with Weiland v Cyril Lord Carpets Ltd (1969) where the claimant was unable to adjust her bifocals as a result of a neck injury caused by the defendant’s negligence. She was worried about catching public transport in such a condition and went to her son’s office to ask for a lift home. On the way into the office she fell down a flight of stairs and was injured. The claimant was held to have been acting reasonably; the defendant was liable for those injuries.

Many difficult issues arise for the court to decide. The facts can be infinite, and the judges adopt a mixture of legal principles, policy & common sense to help them.

One illustration is provided where the claimant suffers injuries as a result of the defendant’s breach of duty. He becomes depressed and commits suicide. The question is whether the court wishes to compensate the estate or dependants of a suicide? There are a number of ways in which they can approach this:

Was the suicide caused by the breach of duty? “But-for” the accident would he have committed suicide?
Was the death too remote a consequence of the breach?
Was the suicide a novus actus interveniens of the claimant?
Could the deceased be regarded as being contributorily negligent in taking his own life?

This difficult issue was first raised by the facts of Pigney v Pointers Transport Services Ltd (1957) in which the claimant’s husband was injured in an accident at work. The head injuries which he sustained led to anxiety neurosis and depression. Some months later he hanged himself. The court allowed the widow’s claim under the FATAL ACCIDENTS ACT (now 1976) (later) and did not regard the suicide as a novus actus interveniens.

Pigney was considered in the unusual case of Meah v McCreamer (1986). The claimant had suffered severe head injuries in a car accident caused by the negligence of the defendant. After the crash, M underwent a personality change and began to attack women. He was successfully sued by two of his victims and M then tried to recover the damages payable to his victims from the defendants. Woolf J held that the damages awarded to the claimant victims were too remote. The loss was indirect and to allow the claimant to recover would expose those like the defendant to indefinite liability. There were also policy reasons against indemnification of the claimant for the consequences of his criminal activities.

We then turned to the three defences of:

Contributory Negligence - the claimant’s fault contributes to his own injury & damages are apportioned.
Volenti non fit injuria - the claimant voluntarily agrees to undertake the risk of harm at his own expense.
Ex Turpi Causa – a person involved in a criminal act may be denied an action

For example: Janet & John have been drinking together. Janet offers John a lift home, John accepts. Due to Janet’s negligent driving the car crashes and John is injured. John was not wearing a seat belt, is thrown forward and hits his head on the windscreen.

If John sued for negligence he could meet the defences of volenti & contributory negligence. Volenti would fail as John may be aware that Janet is drunk but did not consent to her negligent driving. Knowledge of a risk is not equal to consent to run the risk. A statutory provision would also operate to prevent the defence succeeding. John’s damages would be reduced for contributory negligence in riding with a driver who he knows is drunk and in failing to wear a seat belt.

If Janet & John were involved in a get-away from the scene of a crime at the time of the accident Janet could also raise the defence of ex turpi causa (illegality) to the action.

We’ll begin with contributory negligence. At common law if the claimant’s injury was caused partly by his own fault and partly by the negligence of the defendant then he (the claimant) could recover nothing. Important changes to the are were brought about by the LAW REFORM (CONTRIBUTORY NEGLIGENCE) ACT 1945. Section l(1) provides:

“Where any person suffers damage as the result partly of his own fault and partly of the fault of any other person or persons, a claim in respect of that damage shall not be defeated by reason of the fault of the person suffering the damage, but the damages recoverable in respect thereof shall be reduced to such an extent as the court thinks just and equitable having regard to the claimant’s share in the responsibility for the damage”.

Damage includes loss of life and personal injury. Property damage would also appear to be included as this was the case before the passing of the 1945 Act.

To establish a defence of contributory negligence the defendant must prove that the claimant was at fault and that the claimants contributory negligence was a cause of the injuries he suffered.

It is not necessary for the claimant to owe a duty of care to the defendant for him to be contributorily negligent. What is necessary is that the claimant has failed to take reasonable care for his own safety. Therefore, while a motorcyclist owes no duty to other road users to wear a crash helmet, by failing to do so he is guilty of contributory negligence if he suffers head injuries in a road accident while not wearing such a helmet: O’Connell v Jackson (1972).

Just as actionable negligence requires foreseeability of harm to others, so contributory negligence requires foreseeability of harm to oneself it follows that a person is guilty of contributory negligence if he ought reasonably to have foreseen that, if he did not act as a reasonable man would have acted, he might be harmed. The test for the standard of care expected of the claimant appears to be an objective one which varies according to the facts of the case.

A claimant may take up a position which is not dangerous in itself but where his failure to take precautions increases the extent of the harm which he may suffer, e.g. a passenger in a car fails to wear a seat belt. In Froom v Butcher (1976) the claimant suffered the following injuries in a car accident caused by the defendant’s negligence: broken ribs and bruises to his chest; head abrasions and a broken finger. The first two injuries would probably have been avoided if he had worn a seat belt. Lord Denning MR stated:

“The accident is caused by bad driving. The damage is caused in part by the bad driving of the defendant, and in part by the failure of the claimant to wear a seat belt.”

The wording of s1(1) of the 1945 Act gives the court an unfettered discretion to reduce the damages as it thinks “just and equitable”. Since Froom v Butcher failure to wear a seat belt in the front seats of cars has been made a criminal offence subject to certain exceptions.

It is uncertain as to whether there is an age below which children are not contributorily negligent. In Cough v Theme (1966) a girl of 13½ years of age was not contributorily negligent when she crossed the road in reliance on the encouragement of a lorry driver to do so. Similarly in Yachuk v Oliver Blais (1949) a nine year old boy was not expected to understand the dangers of petrol. He had bought the petrol to play with and was burnt when it ignited. If a minor were to be considered contributorily negligent, he should be judged by the standard of a reasonably prudent child not against the standard of a reasonably prudent adult.

Courts are also slow to ascribe contributory negligence to a workman injured in an accident at work.

Where a person attempts to rescue another and is injured in the attempt, the courts will be reluctant to find that the rescuer was careless for his own safety.

The claimant in Sayers v Harlow UDC (1958) was found to be 25% contributorily negligent when she attempted to climb out of the public lavatory in which she was trapped, by putting her weight briefly on the toilet roll holder.

In order for the defence to succeed, the claimant’s fault must be a legal and factual cause of the harm suffered. It is not necessary that the claimant’s fault be a cause of the accident itself.

In Jones v Livox Quarries (1952) 2 QB 608 the claimant was riding on the tow bar of a vehicle when another vehicle negligently ran into it and injured him. His damages were reduced as he was partly responsible for his own injuries. This was a risk to which he had exposed himself by has own negligence.

If he accepts a lift in a car knowing that the driver is intoxicated, then this amounts to contributory negligence - Owens v Brimmell (1977). Note that the defence of volenti is not appropriate here - we will cover this presently.

Section l(1) of the 1945 Act provides that the claimant’s damages shall be reduced by “such extent as the court thinks is just and equitable having regard to the claimant’s share in the responsibility for the damage”. In determining what this responsibility is the courts consider both causative potency and comparative blameworthiness.

If the test of causative potency is used the logical answer is that each case should end in a 50-50 apportionment as both are to blame. Fortunately the courts take a common sense approach, as shown in STAPLEY above.

In Fitzgerald v Lane (1988), the claimant had stepped into the traffic on a busy road. He was struck by the first defendant’s car and deflected into the path of the second defendant’s car. Both defendants were negligent and the claimant was contributorily negligent. The trial judge allocated a third of the responsibility to each party and reduced damages by one third. The House of Lords held that this was the wrong approach and that, where the claimant’s fault is a cause of the accident, the court should first determine the proportion of his blame and secondly determine the contributions of the separate tortfeasors. The claimant was considered to be just as much to blame as the two defendants and his damages were reduced by 50%. The remaining 50% was divided equally between the two drivers.

Volenti non fit injuria. It is a complete defence to the claimant’s action - just as contributory negligence was prior to 1945. A person can consent to an act which would otherwise amount to the commission of a tort.

A tort must have been committed before the defence becomes relevant. In Wooldridge v Sumner (1963), the Court of Appeal was concerned with injury to spectators at a sporting event allegedly caused by the negligence of a participant in the event. The court stated that before volenti became relevant, the defendant had to be in breach of duty. The standard of care owed by a participant to a spectator was not to act with reckless disregard for the spectator’s safety. The defendant was competing in a horse show. He took the wrong line whilst galloping around the arena and caused the claimant to think that he was in the horse’s path. The claimant fell into the horse’s path, whilst attempting to pull another spectator out of the way. Despite the temporary lapse of skill and control on the defendant’s part, he was not negligent. As no tort had been committed on the facts, volenti was irrelevant.

In relation to negligence the defence takes the form of assumption of risk. The application of volenti is controversial and some people take the view that it is only applicable in cases of express consent in that he was in a position to choose freely. The approach has changed in relation to employer/employee situations - see ICI v Shatwell (1965) where consent was implied from the circumstances.

Where the parties have reached an express agreement that the claimant will voluntarily assume the risk of harm, and the agreement is made prior to the negligent act, the defence will operate. If there is a contract between the parties then the defendant may attempt to exclude liability for negligence, but note the terms of the UNFAIR CONTRACT TERMS ACT 1977 and the UNFAIR TERMS IN CONSUMER CONTRACTS REGULATIONS 1994. A contractual relationship between the parties is not essential.

The rule does not apply to aeroplanes! In Morris v Murray (1990) the claimant agreed to be flown in the defendant’s light aeroplane, piloted by the defendant. Both men had been drinking heavily. The defendant crashed the plane, killing himself and injuring the claimant. The defence of volenti was successfully pleaded by the defendant’s estate.

One case in which the court was prepared to imply an agreement was ICI v Shatwell (see above). Two brothers working for ICI as shot firers jointly agreed to disobey their employer’s orders and statutory regulations. They tested detonators without taking the required precautions and the claimant (one of the brothers) was injured in an explosion. ICI were sued as being vicariously liable for the other brother’s breach of statutory duty. As the defence of volenti would have been available to the brother if he had been sued, it was available to the defendants. The court was prepared to imply an agreement from the facts.

For volenti to operate the claimant must have knowledge of the existence of the risk and its nature and extent. If the claimant should have been aware of the risk but was not, the defence will fail: Smith v Austin Lifts (1959).

Mere knowledge of the danger does not establish the defence. In Smith v Baker (1891), the claimant was employed by the defendants in a quarry. He was told to work under a crane lifting heavy stones which sometimes fell. A stone fell and injured him. The doctrine of volenti was held to have no application to harm sustained from the negligence of employers. The reason the employee keeps working is to keep his job and not because he consents to the risk.

For volenti to apply it is essential that the claimant has a genuine freedom of choice.

In Haynes v Harwood (1935) the claimant policeman was injured when horses, which had been negligently left unattended, bolted, and he attempted to stop them. As bystanders were in danger it was held that the policeman had not exercised that freedom of choice which was essential to the defence of volenti. However, if no one is in any real danger then volenti is applicable: Cutler v United Dairies (1933).

The principle applies to all rescuers, professional or otherwise: Chadwick v British Transport Commission (1967).

We’ll begin with ex turpi causa next time.