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

2. 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

3. 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

4. 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.

5. 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

6. 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

7. 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.

8. 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

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

10. 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

11. 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

12. 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.

13. 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

14. 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.

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

16. 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

17. 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.

18. 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

19. 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

20. 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

21. 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

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

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