國外商學(xué)院課程Lecture13

1、Business (Management) AffairsLecture 13Professional Negligence 2 :-Consequential Damage 3) CONSEQUENTIAL DAMAGEnThe 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 twonIf the damage wa

2、s caused by some other factor , the defendant escapes liability Causation in fact :-the “but for” testnA claimant must show that they would not have been injured “ but for” the defendants act or omission nBARNETT V CHELSEA & KENSINGTON HOSPITAL MANAGEMENT COMMITTEE 1968 1 All ER 1068nMr Barnett came

3、 to the defendant hospital in the early hours of the morning with severe vomiting. nThe Doctor did not examine him but advised that he should see his GP in the morning if he was still unwell.n He died 5 hours later from arsenic poisoningnHELD the Dr was negligent in not failing to examine Mr Barnett

4、 but this did not cause his death as even if he had been examined and treated , he would have died anyway nThe but for test was not satisfiedCausation in law remoteness nEven if the but for test is satisfied , the defendant cannot necessarily recover his lossnThe damage may be too remote a consequen

5、ce of the defendants actions and therefore not the cause in law. test for remotenessnOVERSEAS 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 defenda

6、nts had negligently discharged into the harbournHELD the chance of fire breaking out in such circumstances was not reasonably foreseeable by the defendants who were therefore not liablenProvided the type of damage is reasonably foreseeable , the defendant will be liablenIt is irrelevant that the def

7、endant might not have been able to foresee its cause or severity nHUGHES V LORD ADVOCATE 1963 AC 837nThe 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 an

8、d produced a fire ballnHELD 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. novus actus inter

9、veniensnDamage 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 actnIts effect is to relieve the defendants of the liability for the claimants lossnCOBB V GREAT WESTERN RAILWAY 1894 AC 419nThe defendant a

10、llowed a railway carriage to become overcrowded. The claimant was jostled and robbed of 89 and sued to recover it. nHELD the loss was too remote as the actions of the thief were a novus actus interveniens which broke the chain of causationbut .nIf an act is reasonably foreseeable and/or the defendan

11、t has a duty to prevent it then liability remains with the defendant and the damage is not too remote nREEVES V COMMISSIONER OF POLICE for the METROPOLICE 1999 3 WLR 363nReeves committed suicide while in police custody. He was known at the time to be in a mentally unstable condition.nHELD the police

12、 were liable for his death as it was their negligence in failing to supervise him which enabled him to end his lifenHis intervening act was both reasonably foreseeable and the very thing that they were meant to preventeggshell skullnThe “eggshell skull” rule is an exception to the Wagon Mound princi

13、plenIf 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 liablenSMITH V LEECH BRAIN & Co Ltd 1962 2 WLR 148nDue to the defendants negligence , an employee suffered a minor burn to his lip which would normally have caused only superficial damagenHowever , pre-cancerous cells in his lip whi