Tort 4: Negligence: causation and remoteness of damage

Terms in this set (106)

1. principle is designed to resolve the difficulty that arises where it is inherently impossible for the claimant to prove exactly how his injury was caused. It applies, therefore, where the claimant has proved all that he possibly can, but the causal link could only ever be established by scientific investigation and the current state of the relevant science leaves it uncertain

2. D's wrongdoing has materially increased the risk that the C will suffer injury. not just a class of people

3. D's conduct must have been capable of causing the C's injury.

4. C must prove that his injury was caused by the eventuation of the kind of risk created by the D's wrongdoing. (McGhee, but not Wilsher!)

5. C must prove that his injury was caused, if not by exactly the same agency as was involved in the D's wrongdoing, at least by an agency that operated in substantially the same way. A possible example would be where a workman suffered injury from exposure to dusts coming from two sources, the dusts being particles of different substances each of which, however, could have caused his injury in the same way.

6. principle applies where the other possible source of the C's injury is a similar wrongful act or omission of another person, but it can also apply where, as in McGhee, the other possible source of the injury is a similar, but lawful, act or omission of the same D. I reserve my opinion as to whether the principle applies where the other possible source of injury is a similar but lawful act or omission of someone else or a natural occurrence.
C was successful. defence of volenti non fit injuria, although normally would apply where a person of sound mind were to take their own life, had no application where a person of unsound mind took their life. defence of ex turpi causa was not limited to illegal acts but extended also to immoral acts. Ct applied public conscience test and concluded that to allow C to succeed would not affront public conscience, or shock ordinary citizen. Lord Justice Lloyd: Where a man of sound mind injures himself in an unsuccessful suicide attempt, it is difficult to see why he should not be met by a plea of volenti non fit injuria. He has not only Cted risk of injury by another; he has inflicted injury himself. In Hyde v. Tameside Area Health Authority, C, who had made an unsuccessful suicide attempt, brought an action for DM against Health Authority alleging N on part of hospital staff. Lord Denning doubted whether a defence of volenti non fit injuria would be available in such a case " . . where a man of sound mind commits suicide, his estate would be unable to maintain an action against hospital or prison authorities, as case might be. Volenti non fit injuria would provide them with a complete D. There should be no distinction between a successful attempt and an unsuccessful attempt at suicide. in present case Mr Kirkham was NOT of sound mind. Having regard to his mental state, he cannot, by his act, be said to have waived or abandoned any claim arising out of his suicide. So I would reject defence of volenti non fit injuria.
If a man is injured in such a way that his leg may give way at any moment he must act reasonably and carefully. It is quite possible that in spite of all reasonable care his leg may give way in circumstances such that as a result he sustains further injury. Then that second injury was caused by his disability which in turn was caused by the defender's fault. But if the injured man acts unreasonably he cannot hold the defender liable for injury caused by his own unreasonable conduct. His unreasonable conduct is novus actus interveniens. The chain of causation has been broken and what follows must be regarded as caused by his own conduct and not by the defender's fault or the disability caused by it. Or one may say that unreasonable conduct of the pursuer and what follows from it is not the natural and probable result of the original fault of the defender or of the ensuing disability. I do not think that foreseeability comes into this. A defender is not liable for a consequence of a kind which is not foreseeable. But it does not follow that he is liable for every consequence which a reasonable man could foresee. What can be foreseen depends almost entirely on the facts of the case, and it is often easy to foresee unreasonable conduct or some other novus actus interveniens as being quite likely. But that does not mean that the defender must pay for damage caused by the novus actus.

question here is whether the second accident was caused by the Appellant doing something unreasonable. It was argued that the wrongdoer must take his victim as he finds him and that that applies not only to a thin skull but also to his intelligence. But I shall not deal with that argument because there is nothing in the evidence here to suggest that the Appellant is abnormally stupid. This case can be dealt with equally well by asking whether the Appellant did something which a moment's reflection would have shewn him was an unreasonable thing to do.

found that when the Appellant was at the top of the stairs he made a deliberate and voluntary— " . and apparently " . unnecessary " . —leap down ten steep steps of the tenement stairway. Upon this view he has held that the second accident was not a direct and probable result of the Appellant's first accident.