Professional Negligence 2 :- Consequential Damage Lecture 13 Professional Negligence 2 :- Consequential Damage

3) CONSEQUENTIAL DAMAGE The claimant must prove a link between the defendants failure to take reasonable care and the damage the claimant has suffered i.e. there must be causation between the two If the damage was caused by some other factor , the defendant escapes liability

Causation in fact :- the “but for” test A claimant must show that they would not have been injured “ but for” the defendants act or omission

BARNETT V CHELSEA & KENSINGTON HOSPITAL MANAGEMENT COMMITTEE [1968] 1 All ER 1068 Mr Barnett came to the defendant hospital in the early hours of the morning with severe vomiting.

The Doctor did not examine him but advised that he should see his GP in the morning if he was still unwell. He died 5 hours later from arsenic poisoning

HELD the Doctor was negligent in not failing to examine Mr Barnett but this did not cause his death as even if he had been examined and treated , he would have died anyway The but for test was not satisfied

Causation in law – remoteness Even if the but for test is satisfied , the defendant cannot necessarily recover his loss The damage may be too remote a consequence of the defendants actions and therefore not the cause in law.

Test for Remoteness OVERSEAS TANKSHIP (UK) Ltd V MORTS DOCK AND ENGINEERING Co LTD (The Wagon Mound No 1) [1961] 1 All ER 404 :- Fire damage was caused to the claimants dock when a spark from a welding torch ignited oil which the defendants had negligently discharged into the harbour

HELD the chance of fire breaking out in such circumstances was not reasonably foreseeable by the defendants who were therefore not liable

Provided the type of damage is reasonably foreseeable, the defendant will be liable It is irrelevant that the defendant might not have been able to foresee its cause or severity

HUGHES V LORD ADVOCATE [1963] AC 837 The defendant engineers left an inspection hole covered by a tent surrounded by lighted paraffin lamps. The child claimant was severely burnt falling down the hole carrying the lamp which exploded and produced a fire ball

HELD the defendants were held liable as it was reasonably foreseeable that a child would be attracted by the lamps and might be burnt playing with them . It was irrelevant that the explosion and the severity of the burn damage were not reasonably foreseeable.

novus actus interveniens Damage may be too remote if the chain of causation is broken by a new unforeseen act of a third party i.e. a novus actus interveniens – a new intervening act Its effect is to relieve the defendants of the liability for the claimants loss

COBB V GREAT WESTERN RAILWAY [1894] AC 419 The defendant allowed a railway carriage to become overcrowded. The claimant was jostled and robbed of £89 and sued to recover it.

HELD the loss was too remote as the actions of the thief were a novus actus interveniens which broke the chain of causation

but ……….. If an act is reasonably foreseeable and/or the defendant has a duty to prevent it then liability remains with the defendant and the damage is not too remote

REEVES V COMMISSIONER OF POLICE for the METROPOLICE [1999] 3 WLR 363 Reeves committed suicide while in police custody. He was known at the time to be in a mentally unstable condition.

HELD the police were liable for his death as it was their negligence in failing to supervise him which enabled him to end his life His intervening act was both reasonably foreseeable and the very thing that they were meant to prevent

eggshell skull The “eggshell skull” rule is an exception to the Wagon Mound principle If the claimant has some particular weakness that makes them susceptible to a type of harm which is not reasonably foreseeable, the defendant will nevertheless be liable

SMITH V LEECH BRAIN & Co Ltd [1962] 2 WLR 148 Due to the defendants negligence , an employee suffered a minor burn to his lip which would normally have caused only superficial damage

However, pre-cancerous cells in his lip which might have remained dormant were activated and he died. HELD the defendants were liable for their employees death although such serious damage was not foreseeable

You take your victim as you find them! Moral You take your victim as you find them!

References:- Adams, A. (2014) ‘Law For Business Students’. 8th Edn. In SAM Core Reading Volume Two. 2nd Edn. ed. By Jeffree, D. Harlow: Palgrave, 205-266