THE TORT OF NEGLIGENCE - DEFENCES

DEFENCES TO NEGLIGENCE

a)    Contributory negligence

This is a partial defence. Contributory negligence refers to conduct by the injured party that is a contributing cause of her injuries. A court may reduce the amount of damages paid to the claimant if the defendant establishes that the claimant contributed to their own injury or loss.

In Sayers v Harlow UDC 1958, the claimant was injured whilst trying to climb out of a public toilet cubicle that had a defective lock. The court held that the claimant had contributed to her injuries by the method by which she had tried to climb out.

In Fitzgerald v Lane & Patel 1989 the claimant crossed the road whilst the lights were at red for pedestrians. The first defendant driver collided with him and the claimant was thrown from the bonnet of that car into the road, where he was run over by a car driven by the second defendant. The claimant suffered severe spinal injuries that led to partial paralysis, but it could not be proven which impact caused the paralysis. In awarding damages the then House of Lords attributed blame in the proportion of 50% against the claimant and 25% each against the two speeding drivers.

b)    Volenti non fit injuria

Volenti non fit injuria means the voluntary acceptance/assumption of risk of injury. This defence is available to the defendant where both parties have expressly consented to the risk, or may be implied by conduct of the claimant.

In ICL v Shatwel, the claimant and his brother disregarded safety precautions whilst using detonators, resulting in injury to the claimant. The court upheld the defence of volenti non fit injuria. The claimant disregarded his employer’s statutory safety rules and consented to the reckless act willingly.

It should be noted that an awareness of risk is not sufficient to establish consent. The defendant must prove that the claimant was fully informed of the risks and that they consented to them.

 

THE TORT OF NEGLIGENCE - PART II

C)   CAUSALITY AND REMOTENESS OF DAMAGE

In order to justify an action in the tort of negligence, the claimant has to demonstrate not only that the defendant owed them a duty of care, but also that the defendant actually breached that duty of care, causing loss or damage to the claimant.

However, those two steps must be further supported by the claimant showing that the loss or damage suffered was a direct consequence of the breach of duty of care. This final aspect of demonstrating negligence is referred to as causation and the claimant to show that the injury loss or injury sustained was caused by the defendant’s negligence. This process is sometimes referred to as causation in fact. 

However, even where causation is proved, a negligence claim may still fail if the damage caused is held to be too remote. The issue of remoteness is sometimes referred to as causation in law. The test for remoteness is reasonable foresight as stated in The Wagon Mound (1961).

The ‘but for’ test is a way of determining whether the claimant’s loss or damage was caused by the defendant. In order to satisfy the test, the claimant must show that ‘but for’ the defendant’s actions, the damage would not have occurred. If the damage would have occurred irrespective of a breach of duty on the part of the defendant, then the breach is not the cause.

i)                  Single causes

For example, in Barnett v Chelsea and Kensington HMC (1969), a doctor in a hospital casualty department sent a patient home without treating him, telling him to go and see his own doctor. The patient subsequently died from arsenic poisoning. While it was held that the doctor had been negligent in not examining the patient, the evidence indicated that he would have died anyway. Consequently, the doctor’s conduct did not cause his death and he could not be held liable under the tort of negligence.

Also, in Cutler v Vauxhall Motors Ltd (1971), the plaintiff suffered a grazed ankle whilst at work, due to the defendant’s negligence. The graze became ulcerated because of existing varicose veins and the plaintiff had to undergo an immediate operation to remove the veins. It was held that the plaintiff could not recover damages for the operation, because the evidence was that he would have had to undergo the operation within five years anyway, irrespective of the accident at work. 

So, if the same result would have occurred regardless of the breach of duty, then the courts are unlikely to find that the breach caused the injury. This point is further supported by the case of Robinson v Post Office (1974), where a doctor failed to test for an allergic reaction before giving an anti-tetanus injection. However, it was held that the doctor would not be liable for the reaction of the patient, because the test would not have revealed the allergy in time.

ii)               Multiple causes

In relation to the ‘but for’ test, difficulties have arisen where there has been a number of potential causes of the injury or loss. In such a situation, the onus is on the claimant to show that the defendant’s breach was the material contributory cause of his or her injury. Consequently, where there are a number of possible causes, establishing causation may prove difficult, particularly in medical negligence cases. 

In Wilsher v Essex AHA (1988), the plaintiff was born three months premature. He suffered almost total blindness as a result of a condition known as retrolental fibroplasia. It was claimed on behalf of the plaintiff that this was caused by the negligence of the doctor, who had failed to notice that the device for adding oxygen to the blood had been wrongly attached, resulting in an excessive dose of oxygen. However, medical evidence showed at least six potential causes of the plaintiff’s blindness, the majority of which were inherent in premature babies. The House of Lords held that there was insufficient evidence to show which of the six caused the injury to the plaintiff. 

However, the courts on occasion have taken a more flexible approach, as may be seen in Fairchild v Glenhaven Funeral Services Ltd & Others (2002). In this case, the employees concerned had contracted mesothelioma due to a prolonged exposure to asbestos fibres gained during their employment with a number of different employers. It was therefore almost impossible to identify which period of employment was responsible for the employees contracting the disease. As the disease could be generated through exposure to just one fibre of asbestos – although the greater the exposure, the greater the chances of contracting the disease – the House of Lords was prepared to impose liability on all of the employers. It felt that all of the defendants, by failing to take reasonable care, had contributed to the risk. 

The ‘but for’ test cannot solve all questions of factual causation. Indeed, where there has been an omission to act, or an act which does not in itself have physical consequences, it may not be an appropriate test.

Novus actus intervieniens (new acts intervening)

Where there is a break in the chain of causation, the defendant will not be liable for damage caused after the break. The issues are whether the whole sequence of events is the probable consequence of the defendant’s actions and whether it is reasonably foreseeable that these events may happen. This break in the chain is caused by an intervening act and the law recognises that such acts fall into three categories, as follows:

i)                    A natural event

A natural event does not automatically break the chain of causation. If the defendant’s breach has placed the claimant in a position where the natural event can add to that damage, the chain will not be broken unless the natural event was totally unforeseeable. In Carslogie Steamship Co Ltd v Royal Norwegian Government (1952), a ship which was owned by Carslogie had been damaged in a collision caused by the defendant’s negligence. The ship was sent for repair and, on this voyage, suffered extra damage, caused by the severe weather conditions. This resulted in the repairs taking 40 days longer than anticipated. It was held that the bad weather acted as a new intervening act, for which the defendant was not liable. The effect of the new act in this case prevented the plaintiff from recovering compensation for the time that it would have taken to repair the vessel in respect of the collision damage, as the ship would have been out of use in any case, due to the damage caused by the weather.

ii)                  Act of a third party

Where the act of a third party, following the breach of the defendant, causes further damage to the claimant, such an act may be deemed to be a novus actus; the defendant will not then be liable for damage occurring after the third party’s act. In Lamb v Camden LBC (1981), due to the defendant’s negligence, a water main was damaged, causing the plaintiff’s house to be damaged and the house to be vacated until it had been repaired. While the house was empty, squatters moved in and caused further damage to the property. It was held that the defendant was not liable for the squatters’ damage. Although it was a reasonably foreseeable risk, it was not a likely event. Furthermore, it was not the duty of the council to keep the squatters out.

The third party’s act need not be negligent in itself in order to break the chain of causation, although the courts take the view that a negligent act is more likely to break the chain than one that is not negligent, as can be seen in Knightley v Johns (1982).

iii)               Act of the claimant

The action of the claimant may itself break the chain of causation. However, if the act is reasonable and in the ordinary course of things, the event will not break the chain. In McKew v Holland, Hannen and Cubbitts (Scotland) Ltd (1969), the plaintiff was injured at work. As a result, his leg sometimes gave way without warning. He was coming downstairs when his leg gave way, so he jumped in order to avoid falling head first and badly injured his ankle. It was held that the defendants were not liable for this additional injury. The plaintiff had not acted reasonably in attempting to negotiate the stairs without assistance and his actions amounted to a novus actus interveniens.

EQUITABLE REMEDIES

   Equitable remedies

Equitable remedies are available at the discretion of the court. They include;

•   Specific performance
•  Injunction
•  Rescission

Equitable remedies are not granted if;

                        -          Damages are an adequate remedy

                        -          Defendant has acted unfairly

                        -          The order would cause undue hardship

                        -          There is undue delay in seeking the remedy

             a)      Specific performance

This is an order of the court directing a person to perform his obligation under the contract e.g. delivering the contract goods. Its principle use is in contracts for the sale of land but may also be used to compel a sale of shares or debenture. It will never be used in the case of employment or other contracts involving personal services.

Specific performance is not available in the following circumstances; 

• damages provide an adequate remedy;
•  where the order could cause undue hardship;
•  where the contract is of such a nature that constant supervision by the court would be required, eg, Ryan v Mutual Tontine Association;
•  where an order of specific performance would be possible against one party to the contract, but not the other;
•   where the party seeking the order has acted unfairly or unconscionably. He is barred by the maxim ‘He who comes to Equity must come with clean hands’; or
•  where the order is not sought promptly the claimant will be barred by the maxims ‘Delay defeats the Equities’ and ‘Equity assists the vigilant but not the indolent’.

                     b)     Injunction

An injunction is a court order requiring a person to cease doing a specific act. An injunction may be made to enforce a contract of personal service for which an order for specific performance would be refused.

Injunctions fall into two broad categories: 

•  Prohibitory injunction, which orders the defendant not to do something in breach of contract. 
•  Mandatory injunction, which is an order that something must be done so as to reverse the effect of a breach.

                 c)      Rescission

This is whereby the old contract which was breached is rescinded. Rescinding a contract means that it is cancelled or rejected and he parties are restored to their pre-contract condition. The following conditions attach to rescission of contracts;

      ii)     It must be possible for each party to be returned to the pre-contract condition;

    iii)  An innocent 3^rd party who has acquired rights in the subject matter of the contract will prevent an original transaction from being rescinded.

    iv)   The right to rescind must be exercised within a reasonable time of it arising.

     v)     Where a person affirms a contract expressly or by conduct, it may not be rescinded.

REMEDIES FOR BREACH OF CONTRACT PART II - MEASURE OF DAMAGES

 MEASURE OF DAMAGES

The measure of damages is the amount which will put the claimant in the position he would have been in had the contract been properly performed. This is sometimes called the ‘expectation loss’ basis. In Victoria Laundry v Newman Industries, for example, Victoria Laundry were claiming for the profits they would have made ( or the profits they expected to make) had the boiler been installed on the contractually agreed date. If there is no actual loss, the claimant can recover only nominal damages. 

Alternatively, a claimant may prefer to frame his claim in the alternative on the ‘reliance loss’ basis and thereby recover expenses incurred in anticipation of performance and wasted as a result of the breach. The onus is on the defendant to show that the expenditure would not have been recovered if the contract had been performed. 

Illustration: In a contract for the sale of goods, the statutory (Sale of Goods Act 1979) measure of damages is the difference between the market price at the date of the breach and the contract price, so that only nominal damages will be awarded to a claimant buyer or claimant seller if the price at the date of breach was respectively less or more than the contract price. 

In general, damages are not awarded for non-pecuniary loss such as mental distress and loss of enjoyment. Exceptionally, however, damages are awarded for such losses where the contract’s purpose is to promote happiness or enjoyment, as is the situation with contracts for holidays – Jarvis v Swan Tours.

 

The innocent party must take reasonable steps to mitigate (minimise) his loss, for example, by trying to find an alternative method of performance of the contract: Brace v Calder.

Liquidated damages clauses and penalty clauses

Liquidated damages can be defined as a fixed or ascertainable sum agreed by the parties at the time of contracting, payable in the event of a breach, for example, an amount payable per day for failure to complete a building. Such clauses are called liquidated damages clauses.

 If a contract includes a provision that, on a breach of contract, damages of a certain amount or calculable at a certain rate will be payable, the courts will normally accept the relevant figure as a measure of damages. 

The courts will uphold a liquidated damages clause even if that means that the injured party receives less (or more as the case may be) than his actual loss arising on the breach. This is because the clause setting out the damages constitutes one of the agreed contractual terms.

However, a court will ignore a figure for damages put in a contract if it is classed as a penalty clause – that is, a sum which is not a genuine pre-estimate of the expected loss on breach.

The law imposes a duty on the innocent party to take all reasonable steps to mitigate his/her loss. If the innocent party fails to mitigate his/her loss, then the award of damages will be reduced. The burden of proof is on the defendant to show that the claimant failed to take reasonable opportunity of mitigation.

REMEDIES FOR BREACH OF CONRACT

Damages is the basic remedy available for a breach of contract. It is a common law remedy that can be claimed as of right by the innocent party.

The object of damages is usually to put the injured party into the same financial position he would have been in had the contract been properly performed. Sometimes damages are not an adequate remedy and this is where the equitable remedies (such as specific performance and injunction) may be awarded. 

Damages

            a)      Nature of damages 

     The major remedy available at common law for breach of contract is an award of damages. This is a monetary sum fixed by the court to compensate the injured party.  In order to recover substantial damages the innocent party must show that he has suffered actual loss; if there is no actual loss he will only be entitled to nominal damages in recognition of the fact that he has a valid cause of action.

         b)     Rules relating to the award of damages

In making an award of damages, the court has two major considerations - 

•  remoteness of damage/loss; and
• measure of damages.

i)       Remoteness of loss

Damages can not be recovered for all losses suffered. If the loss flowing from the breach of contract is too remote then it cannot be recovered.
The rule governing remoteness of loss in contract was established in Hadley v Baxendale. The court established the principle that where one party is in breach of contract, the other should receive damages which;

•  can fairly and reasonably be considered to arise naturally from the breach of contract itself; or 
•  may reasonably be assumed to have been within the contemplation of the parties at the time they made the contract as being probable result of the breach.

Hadley v Baxendale [1854]; the crankshaft broke in the Claimant’s mill. He engaged the services of the Defendant to deliver the crankshaft to the place where it was to be repaired and to subsequently return it after it had been repaired. Due to neglect of the Defendant, the crankshaft was returned 7 days late. The Claimant was unable to use the mill during this time and claimed for loss of profit. The Defendant argued that he was unaware that the mill would have to be closed during the delay and therefore the loss of profit was too remote.

As a consequence of the first limb of the rule in Hadley v Baxendale, the party in breach is deemed to expect the normal consequences of the breach, whether he actually expected them or not. 

Under the second limb of the rule, the party in breach can only be held liable for abnormal consequences where he has actual knowledge that the abnormal consequences might follow or where he reasonably ought to know that the abnormal consequences might follow. For example, if any special circumstances exists which were actually communicated to the Defendant, the Claimant may recover any damages which would ordinarily follow from a breach of contract under the special circumstances communicated.

Victoria Laundry (Windsor) Ltd. v. Newman Industries Ltd. [1949]; the claimant purchased a large boiler for use in their dying and laundry business. The defendant was aware that they wished to put it to immediate use and knew the nature of their business. The delivery of the boiler was delayed in breach of contract and the claimants brought an action for the loss of profit which the boiler would have made during the period in which the delivery was delayed. The claim contained a sum for a particularly lucrative contract which they lost due to the absence of the boiler. It was held that the claimants could only recover losses which were in the reasonable contemplation of the parties which included the loss of profit that could be expected from the lack of use of the boiler, but the claimant could not recover for the loss of the exceptionally lucrative contract since the defendant was unaware of this contract.