injustice, in part because the robbers could not be sued and the claimant would clearly be under-compensated. As Lord Reid put it, “[Mr Baker’s] loss is not in having a stiff leg; it is in his inability to lead a full life…and his ability to earn as much as he used to earn or could have earned if there had been no accident. In this case the second injury did not diminish any of these. So why should it be regarded as having obliterated or superseded them?”
Here, Andrew has developed a disease that hinders his ability to fully live, and led to his resignation from David’s factory, as it was the case for Mr Baker. In his new course of employment and before the trial, he was shot in the chest by robbers, effectively preventing him from working at all anymore; it is comparable to Mr Baker’s leg being amputated, depriving him of opportunities in life. Since the robbers were not identified and cannot be sued at all, it would not be fair to Andrew to end David’s liability at the time of the shooting, considering the second injury did not diminish Andrew’s loss. The chain of causation does not seem to be broken, and David will remain liable for the full extent of the plaintiff’s damages.
In Brian’s case is similar to Andrew’s case, but the second event is of natural causes. Does David’s liability end with Brian developing emphysema or with Brian’s life? Does the onset of the second illness break the chain of causation? The case to be applied is
Jobling v Associated Dairies Ltd
: Mr Jobling suffered a back injury at work, which brought about a 50 per cent reduction of his earning capacity. Before the trial, he developed a disease of the spine, which left him totally unable to work. According to
, the defendant should be liable for Mr Jobling’s reduced earning capacities for life. However, the court held that the defendant was only liable until the onset of the spine disease, as the second illness was independent from the first injury and as “even
Baker v Willoughby
 AC 467 Page 492
Jobling v Associated Dairies Ltd
 AC 794
Baker v Willoughby
 AC 467
Note: This article aims to give an outline guide to things to consider when answering a negligence problem question. It was written with the current Ilex level 3 syllabus in mind - this includes nervous shock and vicarious liability, but does not include the tort of negligent misstatement. Check your syllabus carefully to ensure that you have covered all or the relevant areas for your course!
The parts in blue and pink are either/or choices for straightforward negligence or nervous shock. Issues in green are things to mention if they are relevant to the facts you have been given. If issues are completely irrelevant to the situation you have been given, don't waste time discussing them!
Step by step:
Explain what C can claim for – personal injury, property damage and consequential economic loss. If ‘pure’ economic loss is claimed which does not result from damage, the claim will not succeed (Spartan Steel v Martin)
In order to win his claim, C must prove 3 things:
- D owed him a duty of care
- D breached the duty of care
- D’s breach caused the damage, and the damage was not too ‘remote’
You need to work through this step by step, stating the law, citing relevant cases and applying the law to the facts given in the question(this bit is vital for good marks!)
Duty of care
There are different rules to be applied here depending upon whether you are dealing with physical damage or nervous shock. Select the appropriate tests for the facts you have.
In most cases you will be dealing with physical damage to person or property, in which case:
Apply the neighbour test from Donoghue v Stephenson and the 3 part test from Caparo v Dickman:
- Is it foreseeable?
- On the facts and in the circumstances is it just and reasonable to impose a duty of care?
- Is there proximity?
It may be that there is an obvious duty of care situation eg. Doctor/patient employer/employee but explain and apply the tests anyway.
If you can add in a couple more cases to fully explain the concept of proximity, so much the better e.g. Hill v CC West Yorkshire, Goodwill v BPAS
However if you have a case of ‘nervous shock’ (recognisable psychiatric injury caused by witnessing/being involved in an accident) Donoghue v Stevenson etc will not apply. Instead you need to consider whether V is:
A primary victim i.e. someone who was directly involved in the accident (including rescuers) and at risk of physical harm, even if this was not actually suffered
A duty of care is easier to prove for primary victims e.g Page v Smith
A secondary victim i.e. someone who was not directly involved and at risk of physical harm
For secondary victims, it is harder to prove a duty of care, and 3 points need to be satisfied:
1. nervous shock was foreseeable i.e what happened was horrific
2. C had a close relationship with V – Alcock v CC S Yorks
3. there was proximity in space and time to the accident – McLoughlin v O’Brien, Alcock v CC S Yorks
Depending on the circumstances, it may be worth mentioning the role of policy in determining a duty of care – courts are reluctant to find a duty if this means opening the floodgates to huge numbers of claims, for example against the police or social services.
Breach of duty of care
Apply the reasonable man test from Blyth v Birmingham Waterworks.
Consider any other factors :
- Was it likely that harm would happen?
- If harm occurred was it likely to be serious?
- How easy/difficult/expensive etc. would it be to prevent the harm?
Use cases to illustrate e.g. compare Bolton v Stone and Paris v Stepney
- A final consideration is whether there are any public policy issues e.g. if D was acting in the public benefit then this must be balanced with any risks taken – Watt v Hertfordshire CC
If any sort of special skill is claimed by D (i.e. any sort of professional etc.) then discuss the Bolam test. If D is a doctor, good answers will also discuss Bolitho.
If relevant - mention the ‘state of the art’ defence Roe v Minister of Health and the fact that D should be up to date, but no more.
If relevant - explain the rule of res ipsa loquitor . Explain the requirements of the rule and apply them:
- Such things don’t happen without negligence
- What actually happened is not known to C
- What happened was under D’s control
Cases: Scott v London & St Katherine’s Dock, Ward v Tesco Stores
Explain that if this rule comes into play it is a significant advantage to C as it shifts the burden of proof re. breach of duty to D, who must prove he was not negligent (difficult!).
Explain and apply causation in fact:
- the ‘but for’ test Barnett v Chelsea & Kensington HM
and causation in law:
- Did D’s actions ‘materially contribute’ to the harm? – McGhee v NCB
If relevant consider any possible new intervening acts e.g. acts of V, multiple torts – Baker v Willoughby, disease overtaking damage from the tort – Jobling v Associated Dairies
Explain the principle of remoteness of damage with cases, especially the Wagon Mound (No 1), explain in more detail if this looks as though it is an issue. The rule is that damage is not too remote if it is of a type that would be expected, even if the way in which it comes about is unusual, or if the damage is more severe than would usually be expected – Hughes v Lord Advocate, Bradford v Robinson Rentals.
If relevant – explain the ‘thin skull rule’ - D takes his victim as he finds him e.g. Smith v Leech Brain
(note that to some extent the thin skull rule contradicts the principle of remoteness of damage)
note that in cases of nervous shock the thin skull rule will apply in the case of primary victims but not in the case of secondary victims
Finally, conclude – does it appear that C may be able to prove duty, breach and causation?
If so, explain what he can claim – damages (i.e. financial compensation) for pain and suffering (injury) property damage (cost of replacement/repair) and any resulting financial loss (earnings, medical bills etc.). Explain what is meant by ‘special damages’ (compensation for expenses up to the date of trial that can be accurately calculated) and ‘general damages’ (compensation that cannot be precisely calculated e.g. future loss of earnings etc.)
Last, but not least, consider whether any defences are applicable. If not, you don’t have to say any more, if they may be consider any of the following where relevant:
- Consent – use case examples if applicable e.g. Morris v Murray
- Ex turpi causa i.e. acting illegally e.g. Clunis v Camden LBC
- contributory negligence – did C in some way contribute towards his own harm? e.g. Sayers v Harlow UDC, Brannan v Air tours, Froom v Butcher (look out for questions which feature failure to wear seat belts, failure to wear crash helmets, riding with a drunk driver etc. and match these to the relevant cases if you can remember them!)
If C is contributorily negligent it will not affect the finding of liability on the part of D, but it may mean that C’s damages are reduced.
One further issue you may have to deal with is that of vicarious liability. If D looks as though he might be an employee, acting in the course of his job (the facts of the question should make it fairly clear if you need to consider this) then you need to consider whether the employer will be vicariously liable for the facts of his employee.
There are 2 key things to determine:
1) is D an employee? If this is in doubt there are 3 tests to apply:
a. the control test
b. the integration or organization test
c. the economic reality or multiple test
2) is D acting ‘in the course of his employment’ or merely on a ‘frolic of his own?! Use case examples such as Rose v Plenty, Limpus v LGOC, Smith v Stages
If both of these tests are passed, the employer is likely to be vicariously liable for the harm. This is an advantage for C as it makes it easier him to obtain his damages as the employer is more likely to be able to pay!
 There is an exception in the tort of negligent misstatement, as in White v Jones, but this is not on the syllabus.