Step three for negligence Causation of damage Step three for negligence

The negligence must have caused damage that was not too remote Even where the C has proved that the D owed a duty of care and was in breach of that duty, the C must show that s/he suffered some damage because of the breach.

Causation is a two stage test: Causation in fact – the ‘but for’ test And Causation in law – remoteness of damage

The ‘but for’ test – would the damage have occurred but for the D’s breach of duty of care?

Case: Barnett v Chelsea and Kensington Hospital Management Committee (1969) Facts: 3 night watchmen went to hospital A&E dept complaining of sickness after drinking tea. Nurse on duty called the doctor on the telephone who did not come and examine the men but advised that they go home and contact their own GPs. The C’s husband died later that day from arsenic poisoning. The widow sued the hospital Held: although the widow could prove that the Dr owed her husband a duty of care and that by not examining him he was in breach of that duty, she could not show causation. The evidence showed that by the time her husband went to the hospital it was too late to save his life, the arsenic was already in his system and he would have died anyway.

Causation in law (remoteness of damage test) It is only possible to claim for damage caused that is reasonably foreseeable. The leading case that established legal causation is ‘Wagon Mound No1’

Case: Wagon Mound No1 (1961) Facts: Ds were ship owners and were loading oil into their ship in Sydney harbour, due to the D’s negligence some oil leaked into the water and within hours the oil had spread into the C’s neighbouring wharf where welding was taking place on another ship. Two days later a spark from the welding torch ignited the oil and caught fire causing damage to the C’s ship. The slipway of the wharf was also damaged (fouled) by the oil; the C claimed for both kinds of damage. Held: at first instance the trial judge said that the damage to the slipway was foreseeable but that the oil catching fire was not (oil had to be heated to very high temperatures before setting alight) but he held the Ds liable for both kinds of damage. On appeal, the Privy Council said the test for remoteness was foresight of a reasonable person so was the damage suffered by the C reasonably foreseeable at the time of the breach of duty of care? Under this test the Ds were only liable for the damage to the slipway.

Egg shell (or thin skull) rule: The D must take the V as s/he finds them – as long as the type of injury is foreseeable the Ds will be liable even if the extent of the injury is not foreseeable:

Case: Smith v Leech Brain & Co (1962) Facts: C’s job was to dip objects into a tank of molten metal. A splash from the tank burnt his lip and because of a pre- cancerous condition (which the D did not know about) the burn became cancerous. Held: although the Ds argued foreseeability, the court applied the eggshell skull rule and found the Ds liable – the Ds had to ‘take the victim as they found him’.

Foreseeability of harm As long as the harm is forseeable then it doesn’t matter if it is caused in an usual way: Hughes v Lord Advocate (1963) 2 PO workers left a manhole unattended, but covered by a small tent with paraffin lamps at each corner. Two boys (aged 8 and 10) took one of the lamps into the tent and dropped it down the manhole. This caused an explosion and caused severe burns. The risk of burn injuries was foreseeable even if the way it occurred was not, the claim was successful