Tort. Causation and remoteness of damage - Essay Example

Negligence: Causation and remoteness of damage Number Department (Word Count = Introduction Causation and remoteness tests are rules that are normally applied to prove negligence claims. On the one hand, factual causation requires that for an accuser to be deemed as liable for a tort, the claimant must prove that the exact acts or inactions were the source of the injury or damage (Martin, 2014). The concept appears simple, but proving the chain of causation between the violation of a duty by the defendant and the resulting injury upon the claimant’s person or property can sometimes be extremely hard. Nonetheless, the fundamental test is to establish whether the harm would have taken happened without the defendant’s violation of the responsibility owed to the aggrieved party. This paper examines causation and remoteness as the primary tests for proving negligence claims. Negligence claims for tort have become increasingly common in modern societies because they safeguard the interests of parties and prevent personal injury upon other persons (Abraham, 2013). In such cases, if the negligent acts of an accused party are found to have attracted other material costs to the claimant, then the former party can be liable for the additional costs of harm as well. According to Stauch (2001), Asbestos negligence proceedings which have been instituted for many decades are based upon the concept of causation. The claims are normally interwoven with the ordinary concept of an individual or party causing injury to others through soared insurance bills, medical, or operational costs among other compensable claims. With hefty compensations for such injuries seemingly secondary losses, some defendants have been severely affected by the negative economic impacts. On the other hand, remoteness test requires that factual causation be separated from legal aspects of the causation to prevent the risk of defendants being subjected to intermediate liability, amount of damages, time and class (Mulheron, 2012). Remoteness test examines how distant a consequence of an individual’s injury is from a defendant’s negligence. As Martin (2014) has said, courts say that an individual’s negligence act is too remote from a claimant’s injury if the accused party would not reasonably foresee it taking place. According to Rouse et al (2011) the concept of legal causation revolves around the fact that if no reasonable party can foresee an impeding injury, and therefore act to avert it, then the accused party cannot be liable for the resulting injury. In the case of Barnett v Chelsea & Kensington Hospital Management Committee [1968] 1 All ER 1068, the English court was required to apply the "but for" test of tort law in order to establish the causation of the injury (Stauch, 2001). Barnet’s husband was said to have drunk contaminated tea at the workplace, which made him sick and prompted his hospitalization. The patient was brought to the emergency section of the health care facility managed by the Chelsea & Kensington Hospital Management Committee. At the department, they met Dr Banerjee, the casualty clinician who advised them to go home and seek services of their own physician because the hospital doctor was away and his return would not be reasonable for a wait. The patient died two hours after the tentative time for the return of the doctor. A post mortem was conducted, which revealed that the patient had succumbed to arsenic poisoning. The poison rarely causes death, according to pathologists. The court held that the victim’s death was not caused by defendant’s acts of negligence; that an antidote would not have saved the man’s life. The ‘Thin skull rule’ is another kind of remoteness test that is normally invoked by claimants in negligence claims. The rule was invoked in the case of Page v Smith [1996] 1 AC 155, which followed the precedent set in the case of Smith v Leech Brain [1962] 2 QB 405. In the two cases, the courts decided that existing preconditions that make persons vulnerable to danger do not constitute a defence for negligent defendants (Stauch, 2001). In Page v Smith, the plaintiff’s Myalgic Encephalomyelitis (ME) was a health precondition that made him vulnerable to shock. The statements revealed that he was recovering from the ME condition when his defendant’s negligent acts led him into a minor car accident. The plaintiff did not suffer any physical injuries as a result of the incident, but the accident worsened his ME condition to a level that he could not return to his employment status as an instructor. In the ruling, the court awarded him a total of £162,000 in damages for the injury upon his person on the grounds that his psychiatric harm was foreseeable (Mulheron, 2012; Kantarelis, 2008). Abraham (2013) argues the ‘but for test’ requires the claimant to shoulder the burden of proof and convince the court that harm would have been avoided but for the negligent acts of the accused. Hocking (1999) argues that it is possible to invoke the but for test in situations where there is some uncertainty as to how the claimant or victim would have conducted himself or herself to avoid or minimize the injury. In addition, the issue of causation may come up where the court is confronted with conflicting reports about the failure of the defendant to act reasonably in a particular situation (Rouse et al, 2011). In some cases, the facts of the case may reveal that the defendants violation of a duty of care did not really cause the injury claimed by the plaintiff. In light of these challenges, the claimant is under the obligation to prove beyond the balance of probabilities that the inaction or actions of the defendant led to a breach of duty which then caused the injury (Martin, 2014). In such situations, Stauch (2001) notes that the defendant is under duty to provide a clarification for the cause of injury, but the failure of the party to provide the court with such information may play a role in determining the direction of the case as far as admissibility of the claims for injury are concerned. In spite of the importance of the ‘but for’ test is establishing the liability or lack of it in negligence claims, Zalma (2010) has said the test is insufficient in some cases. A typical situation where the test may not apply is for claims for an injury resulting from a breach of duty by a defendant’s failure to act. In addition, in cases where the damage upon the plaintiff is the result of more causes and where the plaintiff has suffered economic damages, the test does not apply. The only universality in negligence claims is the responsibility of the claimant to show adequate proof of tort on them. Despite the burden of proof in negligence claims being the duty of the claimant, Abraham (2013) argues that the party does not have to demonstrate that the breach of duty of care by the accused was the primary cause of the injury. This means that all that is expected of a claimant is to show that a breach of duty by the defendant had material impacts on the damage or injury they have suffered. In light of this, the court may be convinced by the fact that the accuseds abdication of duty triggered the risk of harm and made it more certain to happen. In cases where there are several potential causes, the plaintiff must still show evidence to prove that the defendants violation of duty resulted in the injury or substantially contributed to the injury. Rouse et al (2011) argue that where the plaintiff must show proof that the accused’s behaviour had material influence on the injury, the accused is liable only for the damages resulting from their acts of negligence; if not, the loss of chance would be applicable. Loss of chance is a concept of the English common law used to refer to a certain fault in causation in contractual agreements and tort law (Stauch, 2001). Under the doctrine, Abraham (2001) notes that courts can carry out assessments of theoretical outcomes which have a bearing on the behaviour of the claimant or a third party in relation to the breach of contract by the party. Courts would examine negligence claims based on the plaintiff’s denial of obtain a fairer bargain by a third party. In such cases, the remedy for the claims is usually calculated to compensate the plaintiff for loss of expectation. Notably, compensation for loss of chance is normally based on explicit and implicit contractual terms. Martin (2014) has noted restitution and reliance as other forms of remedies. On his part, Hocking (1999) has noted that the main obstacle to granting claims caused by loss of chance lies in the computation of causation damages. Remoteness test will inform disallowing of a claim if it was based on too hypothetical grounds. In the case of McRae v. Commonwealth Disposals Commission (1951) 84 CLR 377, McRae purchased from the Commission the right to rescue an oil tanker believed to be existing at the location specified in the contract (Martin, 2014). The property never existed and the contract as well as the resulting transaction was based on rumour. The Commission eventually argued that the agreement lacked any contractual force because the absence of the subject matter was a common mistake. In its response, the court termed the claimant’s failure to confirm the existence or lack of the subject matter and the claims for mistake in the contract as irresponsible. McRae was denied profit claims in the event that he located the wreck but awarded reliance damages for the resources he wasted in the “too speculative” search mission. Nevertheless, judges sometimes allow room for speculation. In Chaplin v Hicks [1911] 2 KB 786 the accused was found liable for violation of contractual terms by denying the plaintiff the opportunity to participate in the finals of a prestigious beauty contest that would have seen the fifty finalists being allowed to sing (Stauch, 2001). The court ordered damages amounting to one-quarter of the winning prize, using a lottery formula, for the plaintiff for her denial of a performance. In the case of Allied Maples Group Ltd v. Simmons & Simmons [1995] 1 WLR 1602, the court sought to limit the more overarching application of law in the precedent set in Chaplin v. Hicks. The case established how an attorney’s negligence denied the plaintiff of a chance to bargain for a fairer deal (Hocking, 1999). The appellate court argued that if the aggrieved party could demonstrate above the balance of probabilities that they had a better bargaining power with the third party, and; that by carrying out such negotiations, there was a substantial chance that they would get a fairer deal from the party, then the court is under duty to calculate and grant damages for the client’s loss of chance of engaging in the negotiations. The court declared the loss of chance method as admissible and construed the situation as one in which the claimant’s injury depends on the theoretical role of a third party adjunct to or without the plaintiff’s contribution (Abraham, 2013). Although, the role of the third party was seen as a prerequisite in the calculation of damages by the court, Lord Nicholls expanded the reasoning by arguing in the case of Gregg v. Scott [2005] UKHL 2 that the precedent set in the case of Allied Maples Group Ltd v. Simmons & Simmons provided just but one way of awarding damages. Conclusion Courts often award negligence claims to claimants who have proved that the defendant owed them a duty of care; that the duty was breached and an injury had occurred, and; that the breach was the cause of the injury. Causation and remoteness tests are normally applied to ascertain the defendant’s liability of lack of it in negligence cases. When the remoteness test establishes on the balance of probabilities that the defendant’s actions or inactions were the cause of or had a material impact on the claimant’s injury, then he or she is liable for the tort. Under the ‘thin skull rule’, claimant’s predisposition to danger does not absolve a defendant from negligence because such party’s injury is foreseeable. Reflective journal The coursework really has been a significant eye-opener to me in the faculty of law. Owing the fact that law is applicable to every aspect of life; the coursework has provided me with the opportunity to study the importance and application of law in various areas including its relation to other important subjects including business and medicine. My multidimensional approach to research, involving the exploration of a wide range of secondary data in the form of legal literary materials, case law, and statutes and their relevance to particular subject matter have enabled me to approach legal issues from different points with a view to finding amicable outcomes that are not only relevant in law but responsive to the changing needs of the world. With these rich sources of information, I am now better equipped to analyse case law and more motivated to appreciate the flexibility in the application of common law doctrines and the foundational role of legal precedents that courts use in order to arrive at just, fair and reasonable judgements. Despite the existence of rich materials of law, I did encounter the problem of having to go through long, complex documents of law containing court cases, statutory law, common law doctrines most of who are written in Latin. In addition, I did experience problems appreciating the delivery of justice and fairness in cases that required consistency in the application of common law doctrines set in precedents and the need for courts to modify rulings to suit the evolving needs of the current world. Next time I will concentrate on the summaries of comprehensive cases and legal documents or literary materials available on reputable websites such as Westlaw and Lexis Nexis. This way I shall save more time for studying more cases and other important legal materials. Owing to the fact that each case has facts which are unique to itself, the application of ‘but for’ test and the remoteness test were particularly contradicting and hard to prove in practice and substantially dependent on the submissions of the claimant’s attorney(s). Having obtained the right guidance in class and scanned through massive legal documents for collation, comparison and contrast to establish their points of convergence and departure, I strongly believe that I have performed to the best of my ability in the coursework. References Abraham, K.S. 2001. The trouble with negligence. Vanderbilt Law Review,54(3), pp. 1187- 1223. Abraham, K.S. 2013. Self-Proving Causation. Virginia Law Review, 99(8), pp.1811-1853. Hocking, B.A. 1999. Liability for Negligent Words. London: Federation Press. Kantarelis, D. 2008. Internalization of costs, liability and negligence, performance and reliance. International Journal of Law and Management, 50(6), pp.274-284. Martin, J. 2014. Key Cases: The English Legal System. London: Mulheron, R. 2012. Rewriting the Requirement for a ‘Recognized Psychiatric Injury’ in Negligence Claims. Oxford Journal of Legal Studies, 32(1), pp.77-112. Rouse et al. 2011. Causality and the law. Information Knowledge Systems Management, 10(1-4), pp.373-395. Routledge. Stauch, M. 2001. Risk and Remoteness of Damage in Negligence. Modern Law Review, 64(2), pp.191. Zalma, B. 2010. Proving negligence. American Agent & Broker, 82(9), pp.10-12. Read More