 | This article includes a list of references, related reading or external links, but its sources remain unclear because it lacks inline citations .(January 2018) |
| Part of a series on common law |
| English tort law |
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| Negligence |
| Trespass |
| Occupiers' liability |
| Defamation |
| Strict liability |
| Nuisance |
In the English law of negligence, the acts of the claimant may give the defendant a defence to liability, whether in whole or part, if those acts unreasonably add to the loss.
In the normal course of events, the defendant is liable if they owed a duty of care, breached that duty and either caused loss or damage to the claimant or exposed the claimant to the risk of loss or damage. But a negligent defendant will not be liable for any loss or damage subsequently sustained by the claimant, if the claimant acted unreasonably in responding to the situation. This is a matter for the courts to weigh on the facts of each case.
In McKew v Holland & Hannen & Cubitts (Scotland) Ltd. (1969) 3 AER 1621, the defendant's negligence caused an injury to the claimant's leg that significantly weakened it. When later attempting to descend a steep staircase without a handrail or assistance, the claimant broke the ankle in the same leg. Lord Reid said that once a person is injured and that injury produces a loss of mobility, they must act reasonably and carefully.
It is, of course, possible that the disability may produce a situation in which further injury is caused. In such a case, the second injury fits into the chain of causation, the one following naturally from the other. But if the injured person acts unreasonably, this behaviour is novus actus interveniens ( Latin for "a new act intervening"). The chain of causation is considered broken and the new injuries will be regarded as caused by the claimant's own conduct and not by the defendant's fault or the disability caused by that first negligence.
So in the particular case, the claimant knew that his left leg might give way suddenly. He could see that these stairs were steep and that there was no handrail. If he had given the matter a moment's thought, he would have realised that he could only safely descend if he went extremely slowly and carefully so that he could sit down if his leg gave way. Alternatively, he should have waited for assistance. But recklessly he chose to descend and, when he fell, he could not stop himself. That was taking an unreasonable risk and, therefore, his behaviour broke the chain of causation.
But where the claimant’s response is not sufficiently unreasonable, the chain of causation will be unbroken and the defendant will remain liable. In Wieland v Cyril Lord Carpets (1969) 3 AER 1006 the defendant's negligence caused an injury to the claimant's neck that necessitated the wearing of a surgical collar. The claimant also wore bifocals and the collar inhibited the normal compensatory movement of her head to maintain perfect vision. She fell down some steps sustaining further injury. It was held that her difficulties in seeing with her usual spectacles were within the risk created by the original negligence.
Unlike McKew, Mrs. Wieland was not behaving unreasonably in descending the steps and so the chain of causation was not broken. Eveleigh J. said that "...one injury may affect a person's ability to cope with the vicissitudes of life" but all that arises reasonably in the ordinary course of events will not break the chain.
Similarly, where the defendant creates a dangerous situation that requires the claimant to take immediate evasive action, the defendant remains liable even if, at the critical moment, the claimant makes the wrong decision and suffers damage that could have been avoided.
Contributory negligence used to be a complete defence, but the Law Reform (Contributory Negligence) Act 1945 allows the court to apportion liability for damages between the claimant and the defendant where the claimant's negligence has materially added to the loss or damage sustained. Section 1 provides:
The reference in s1(1) to the claimant's share in the "responsibility for the damage" requires a court to consider what contribution the claimant made to their loss or damage, and the degree of blameworthiness. For these purposes, the only requirement is that the claimant's actions contribute to the damage. There is no requirement that the claimant must also have contributed to the initial sequence of events that caused the loss or damage. In Sayers v Harlow UDC (1958) 1 WLR 623 having paid to use a public toilet, a 36-year-old woman found herself trapped inside a cubicle that had no door handle. She attempted to climb out by stepping first on to the toilet and then on to the toilet-roll holder, which gave way. The court held that the injuries she suffered were a natural and probable consequence of the defendant's negligence, but that the damages would be reduced by 25% since the claimant had been careless in depending for support on the toilet-roll holder.
In some situations, the common law has been overtaken by statute. In Froom v Butcher (1976) QB 286 Denning MR assessed the percentage contribution made by a claimant who failed to wear a seat belt (at p295):
The wearing of seat belts then became compulsory (see the Wearing of Seat Belts Regulations 1983 and the Motor Vehicles (Wearing of Seat Belts in Rear Seat by Adults) Regulations 1991). The current thinking would not support limiting damages by a figure of 25% and if, for example, the claimant was thrown out of the vehicle because no seat belt was worn, a substantial finding of contributory negligence should follow. Indeed, in Hitchens v Berkshire County Council the High Court expressed some difficulty in following the logic of Lord Denning's figure of 25% although the ratio decidendi was considered binding. There are two further principles to consider:
If a claimant is volens, they have willingly accepted the risk of being injured by the foreseeable behaviour of the defendant. This means that there is considerable overlap between contributory negligence and volenti. Because prior agreement may be taken to extinguish the cause of action, its application can sometimes result in injustice. But contributory negligence has the capacity to be more fair because instead of extinguishing the action, it merely reduces the award of damages by the percentage of contribution made to the loss or damage by the claimant. In Reeves v Commissioner of Police of the Metropolis (2000) 1 AC 360, after two failed attempts, the claimant succeeded in committing suicide in his cell because of the defendant's failure to take proper precautions while the prisoner was on "suicide watch". The suicide was not a novus actus because preventing it was inevitably a part of the defendant's duty of care, and the court cannot equate a breach in the duty with a breach in the causal chain. The general rule remains that people of full age and full intellectual capacity must look after themselves and take responsibility for their actions. Hence, duties to safeguard people from causing harm to themselves will be very rare. But once it is obvious that this is one of those rare cases, the defendant cannot argue that the breach of the duty could not have been the cause of the harm because the victim caused it to himself. Thus, the defendant will be liable for the consequences of their negligence, however objectively unreasonable the claimant’s act may be, although damages may be reduced to take account of the claimant’s contributory negligence: in this case, damages were reduced by 50%.
In Morris v Murray (1990) 3 AER 801 the claimant helped an obviously drunken pilot get into a small aeroplane, which crashed as it attempted to take off. This was a classic case for volenti to apply. The court held that the claimant must have known the condition of the pilot and voluntarily took the risk of negligence by agreeing to be a passenger. However, in driving cases, s149 Road Traffic Act 1988 denies the effectiveness of any agreement between a passenger of a motor vehicle and the driver that seeks to exclude liability for negligence where insurance cover for passengers is compulsory. This applies both to express agreements between driver and passenger (e.g. where the driver displays a notice in the vehicle stating that passengers travel at their own risk) and to implied agreements in cases such as Pitts v Hunt (1991) 1 QB 24, where the claimant was a passenger on a motor cycle knowing that the driver was drunk, uninsured, and without a current licence. The defendant negligently collided with another vehicle, killing himself and injuring the passenger. Dillon LJ. dismissed the claim on the ground of ex turpi causa because there was a joint common purpose. This is a public policy test of "public conscience" because the claimant might otherwise benefit from the unlawful behaviour willingly undertaken. Similarly, under ss1 and 2 Unfair Contract Terms Act 1977, commercial agreements seeking to exclude liability in negligence are also void. But if the claimant signs an express agreement identifying the nature of the risks likely to be run and accepting those risks, this is evidence that the claimant is volens and has chosen to run the risk not by compulsion or as the lesser of two or more evils i.e. the contractual clause is an express volenti exclusion clause for the purposes of tortious liability. Because knowledge of a risk does not of itself imply consent, the UCTA prevails and such clauses do not automatically exclude liability. This would particularly apply in medical cases where informed consent is traditionally evidenced in a written form (Luckham: 2004).
The policy is intended to prevent a claimant from seeking any benefit from their own unlawful acts. For example, in Meah v McCreamer (No. 2) (1986) 3 AER 897 (1986) 1 All ER 943 the claimant had been injured in a car accident and later sexually assaulted three women. He was denied the right to claim an indemnity from the driver of the car against the claims for compensation made by the victims of his criminal actions. The problem is that if the medical evidence of the head injury establishes that the criminal conduct would not have arisen "but for" the tort alleged then, in principle, damages should follow. If the claimant was not responsible for his behaviour and it had merely been anti-social rather than criminal behaviour, then damages would have been available, and it seems inconsistent to deny recovery because the involuntary behaviour happened to be "illegal". In Thankwell v Barclays Bank Plc. (1986) 1 AER 676, Hutchinson J. said (at p687) that the court would deny a claim when, "...in all the circumstances it would be an affront to the public conscience if by affording him the relief sought the court was seen to be indirectly assisting or encouraging the plaintiff in his criminal act." The logic of the "affront" may be more apparent in Clunis v Camden and Islington Health Authority (1998) 3 AER 180 where, two months after the claimant had been discharged from hospital after detention under s3 Mental Health Act 1983, he killed a stranger. He pleaded guilty to manslaughter on the ground of diminished responsibility. A claim against the hospital was struck out because it was based on the claimant's own illegal act. Similarly, in Revill v Newbery (1996) 2 WLR 239 a burglar was shot by an elderly man. In general terms, it is appropriate to deny burglars relief, e.g. that the injuries prevent the burglar from pursuing their successful career in crime may be true, but it would be an affront if such loss of earnings were recoverable. However, it would be a different matter if the householder uses excessive force and inflicts very severe injuries. In such cases, some relief for the injuries should be allowed, but subject to reduction for contributory negligence.
Negligence is a failure to exercise appropriate and/or ethical ruled care expected to be exercised amongst specified circumstances. The area of tort law known as negligence involves harm caused by failing to act as a form of carelessness possibly with extenuating circumstances. The core concept of negligence is that people should exercise reasonable care in their actions, by taking account of the potential harm that they might foreseeably cause to other people or property.
In law and insurance, a proximate cause is an event sufficiently related to an injury that the courts deem the event to be the cause of that injury. There are two types of causation in the law: cause-in-fact, and proximate cause. Cause-in-fact is determined by the "but for" test: But for the action, the result would not have happened. The action is a necessary condition, but may not be a sufficient condition, for the resulting injury. A few circumstances exist where the but for test is ineffective. Since but-for causation is very easy to show, a second test is used to determine if an action is close enough to a harm in a "chain of events" to be legally valid. This test is called proximate cause. Proximate cause is a key principle of Insurance and is concerned with how the loss or damage actually occurred. There are several competing theories of proximate cause. For an act to be deemed to cause a harm, both tests must be met; proximate cause is a legal limitation on cause-in-fact.
A tort is a civil wrong that causes a claimant to suffer loss or harm, resulting in legal liability for the person who commits the tortious act. In some, but not all, civil and mixed law jurisdictions, the term delict is used to refer to this category of civil wrong, though it can also refer to criminal offences in some jurisdictions and tort is the general term used in comparative law. The word tort stems from Old French via the Norman Conquest and Latin via the Roman Empire. The word 'tort' was first used in a legal context in the 1580s, although different words were used for similar concepts prior to this time.
In some common law jurisdictions, contributory negligence is a defense to a tort claim based on negligence. If it is available, the defense completely bars plaintiffs from any recovery if they contribute to their own injury through their own negligence.
English tort law concerns the compensation for harm to people's rights to health and safety, a clean environment, property, their economic interests, or their reputations. A "tort" is a wrong in civil, rather than criminal law, that usually requires a payment of money to make up for damage that is caused. Alongside contracts and unjust enrichment, tort law is usually seen as forming one of the three main pillars of the law of obligations.
Volenti non fit iniuria is a common law doctrine which states that if someone willingly places themselves in a position where harm might result, knowing that some degree of harm might result, they are not able to bring a claim against the other party in tort or delict. Volenti applies only to the risk which a reasonable person would consider them as having assumed by their actions; thus a boxer consents to being hit, and to the injuries that might be expected from being hit, but does not consent to his opponent striking him with an iron bar, or punching him outside the usual terms of boxing. Volenti is also known as a "voluntary assumption of risk".
Causation is the "causal relationship between the defendant's conduct and end result". In other words, causation provides a means of connecting conduct with a resulting effect, typically an injury. In criminal law, it is defined as the actus reus from which the specific injury or other effect arose and is combined with mens rea to comprise the elements of guilt. Causation only applies where a result has been achieved and therefore is immaterial with regard to inchoate offenses.
In the English law of tort, professional negligence is a subset of the general rules on negligence to cover the situation in which the defendant has represented him or herself as having more than average skills and abilities. The usual rules rely on establishing that a duty of care is owed by the defendant to the claimant, and that the defendant is in breach of that duty. The standard test of breach is whether the defendant has matched the abilities of a reasonable person. But, by virtue of the services they offer and supply, professional people hold themselves out as having more than average abilities. This specialised set of rules determines the standards against which to measure the legal quality of the services actually delivered by those who claim to be among the best in their fields of expertise.
In English tort law, there can be no liability in negligence unless the claimant establishes both that they were owed a duty of care by the defendant, and that there has been a breach of that duty. The defendant is in breach of duty towards the claimant if their conduct fell short of the standard expected under the circumstances.
Causation in English law concerns the legal tests of remoteness, causation and foreseeability in the tort of negligence. It is also relevant for English criminal law and English contract law.
Breaking the chain refers in English law to the idea that causal connections are deemed to finish. Even if the defendant can be shown to have acted negligently, there will be no liability if some new intervening act breaks the chain of causation between that negligence and the loss or damage sustained by the claimant.
In English law, remoteness between a cause of action and the loss or damage sustained as a result is addressed through a set of rules in both tort and contract, which limit the amount of compensatory damages available for a wrong.
In RePolemis & Furness, Withy & Co Ltd (1921) is an English tort case on causation and remoteness in the law of negligence.
Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd, commonly known as Wagon Mound , is a landmark tort law case, which imposed a remoteness rule for causation in negligence. The Privy Council held that a party can be held liable only for loss that was reasonably foreseeable. Contributory negligence on the part of the dock owners was also relevant in the decision, and was essential to the outcome, although not central to this case's legal significance.
Fairchild v Glenhaven Funeral Services Ltd [2002] UKHL 22 is a leading case on causation in English tort law. It concerned malignant mesothelioma, a deadly disease caused by breathing asbestos fibres. The House of Lords approved the test of "materially increasing risk" of harm, as a deviation in some circumstances from the ordinary "balance of probabilities" test under the "but for" standard.
Baker v. T E Hopkins & Son Ltd [1959] 3 All ER 225 is a Court of Appeal of England and Wales decision dealing with the issue of helpers' liability in tort.
The following outline is provided as an overview of and introduction to tort law in common law jurisdictions:
The Law Reform Act 1945 is an Act of Parliament of the United Kingdom, which allows a judge to apportion liability for compensatory damages as he feels to be "just and equitable" between a tortfeasor and an injured person who was partly to blame. Section 1(1) of the Act provides:
"Where any person suffers damage as the result partly of his own fault and partly of the fault of any other person(s), a claim in respect of that damage will not be defeated by reason of the fault of the person suffering the damage, but the damages recoverable in respect thereof shall be reduced to such extent as the court thinks just and equitable having regard to the claimant's share in the responsibility for the damage."
The civil liability of a recreational diver may include a duty of care to another diver during a dive. Breach of this duty that is a proximate cause of injury or loss to the other diver may lead to civil litigation for damages in compensation for the injury or loss suffered.
Chapman v Hearse is a significant case in common law related to duty of care, reasonable foreseeability and novus actus interveniens within the tort of negligence. The case concerned three parties; Chapman who drove negligently, Dr Cherry who assisted him on the side of the road, and Hearse who, in driving negligently, killed Dr Cherry while he was assisting Chapman. In the Supreme Court of South Australia, Hearse was found liable for damages to Dr Cherry's estate under the Wrongs Act 1936. Hearse sought to reclaim damages from Chapman due to his alleged contributory negligence; Chapman was found liable to one quarter of the damages. Chapman appealed the case to the High Court of Australia on August 8, 1961 but it was dismissed as the results of his negligence were deemed reasonably foreseeable. A duty of care was established between Chapman and the deceased and his claim of novus actus interveniens was rejected. Dr Cherry was considered a ‘rescuer’ and his respective rights remained.