Strict liability in negligence

4.6 Proving negligence

4.6.4 Strict liability in negligence

114

NEGLIGENCE: CAUSATION

CASE EXAMPLE

Barkway v South Wales Transport Co Ltd [1950] 1 All ER 392

Without apparent reason a bus mounted a pavement and this resulted in injury to the claim- ant. In fact it was discovered that a tyre had burst because of a defect in the wall of the tyre that could not have been discovered earlier. Res ipsa was shown to be inappropriate, however, when it was discovered that the bus company gave no instructions to drivers to report heavy blows suffered by the tyres. As a result the court held that it was possible for negligence to be shown and the defendants were liable.

Comment

We have already seen that there is debate among the judiciary as to the proper role of the maxim in relation to medical negligence cases.

It has been argued at different points that the maxim should always apply because the three criteria will generally be satisfied and because the claimant may otherwise face a very difficult time collecting the appropriate evidence.

The courts, nevertheless, have been reluctant to accept such widespread application of the maxim. The Pearson Report in 1978 also rejected general application because of the fear of an escalating number of claims resulting and the consequent rise in insurance premiums for medical staff.

115

4.6 PROVING NEGLIGENCE

Figure 4.3 The requirements for making a plea of res ipsa loquitur.

KEY FACTS

Res ipsa loquitur Case

At all material times was the thing causing harm to the claimant in the control of the defendant?

YES

Was the incident one that could only have occurred through negligence?

YES

Was there any other explanation for the event causing damage to the claimant?

NO

The defendant must prove that he was not negligent. and not responsible for the damage suffered by the claimant

NO

NO

YES

Res ipsa loquitur will not apply

• The claimant would have to prove the defendant was responsible

• It is unlikely that the claimant could do so successfully

Res ipsa loquitur will not apply

• A claim in negligence would not be possible

If the event was caused by the defendant's negligence and there is proof of negligence then that proof should be raised in the claim - a plea of res ipsa loquitur is not appropriate

Res ipsa loquitur means the thing speaks for itself - it is a means of establishing negligence where proof is hard to come by.

The doctrine in effect means that the defendant has to prove that he was not negligent if the plea is raised successfully.

There are three essential aspects to the plea:

• at all material times events leading to the damage were under the control of the defendant

• the incident is of a type usually associated with negligence

• there is no other explanation.

It can be particularly appropriate to medical negligence claims.

Gee v Metropolitan Railway [1873]

Scott v London and St Katherine's Dock [1865]

Barkway v South Wales Transport [1950]

116

NEGLIGENCE: CAUSATION

SAMPLE ESSAY QUESTION

‘The two main aims of tort are to compensate the victims of wrongdoing and to deter wrongdoing.’ Discuss whether the rules on causation and remoteness of damage achieve these aims.

Explain the basic rules on causation in fact and remoteness of damage

•

The 'but for' test generally applies - but for the defendant's negligence the damage would not have occurred

•

Courts will not compensate for 1055 that is tao remote a consequence of thedefendant's breach - 50 will only compensate foreseeable 1055

Discuss the problems associated with multiple causes and how the courts have overcome them

•

The 'but for' test generally applies - but for the defendant's negligence the damage would not have occurred

•

Courts will not compensate for 1055 that is tao remote a consequence of the defendant's breach - 50 will only compensate foreseeable 1055

•

With concurrent multiple causes - can be harsh and not deter if 'but for' test is applied where there are many possible causes

•

But if there is a single cause but more than one defendant courts may accept that that cause materially increased the risk of harm or was a material contribution to the harm - ensures the claimant is compensated and is a deterrent but may be unfair on defendant

•

Problem, tao, of overcompensating or undercompensating victim

Discuss the problems associated with 1055 of a chance

•

Defendant not liable on a balance of probabilities

•

So defendant goes uncompensated

•

And no deterrent to a defendant who has breached his duty

Discuss the problems associated with novus actus interveniens

•

Three types - act of claimant, of nature, of a third party

•

Breaks chain of causation - 50 usually no campensation and no much deterrent

Explain the problems associated with remoteness of damage

•

Legal test based on foreseeable harm

•

There has been inconsistent application

•

If court tests against precise circumstances and damage then little chance of compensation or deterrent

•

But if takes more liberal view then provides compensation and deterrent

•

Different approach - direct consequences rule - when 'thin skull' rule applies

117

FURTHER READING

SUMMARY

J There are two types of causation: causation in fact and causation in law (remoteness of damage).

J Causation in fact is usually measured by the ‘but for’ test – damage would not have occurred ‘but for’ the defendant’s breach of duty.

J But different approaches are taken when there are multiple causes: possibly no liab- ility where there is a pre- existing condition – if there are several different concurrent causes then ‘but for’ test applies – but if defendant materially increases the risk of harm or materially contributes then any defendant may be liable – but sometimes judges prefer to apportion damages.

J A novus actus interveniens by the claimant or an act of nature or an act of a third party breaks the chain of causation and the fi rst defendant is not liable.

J Remoteness of damage, causation in law is a legal test – the defendant is only liable for foreseeable damage.

J Judges sometimes take a broad application where there is personal injury so it is the general circumstances and general type of damage rather than precise circumstances and specifi c damage that must be foreseen.

J Often judges take a narrow application where there is property damage.

Further reading

Hill, T, ‘A lost chance for compensation in the tort of negligence by the House of Lords’ (1991) 54 MLR 511.

Morgan, A, ‘Inference, principle and the proof of causation’ (2002) 152 NLJ 1060.

Owen, R F, ‘Causation and apportionment’ (2000) 152 NLJ 1116.

This page intentionally left blank

5

Negligence: defences

AIMS AND OBJECTIVES

After reading this chapter you should be able to:

J Understand the criteria for establishing the defences of volenti non fit injuria (vol- untary assumption of risk) and contributory negligence

J Understand that volenti is a complete defence removing liability while contrib- utory negligence is only a partial defence with the effect of reducing damages J Critically analyse the two defences

J Apply the two defences to factual situations