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Negligence Causation Cases
CAUSATION IN FACT
Heil v Rankin and another (2000) The Times LR, June 20
The plaintiff was a police dog handler. In 1987 he had been involved in a serious and frightening criminal incident. In 1993 an accident involving the first defendant caused him minor injury and also triggered a condition of post traumatic stress disorder, which had initially manifested itself after the 1987 incident, and he was unable to continue in the police force. The trial judge took into account the possibility that the plaintiff’s post-traumatic stress disorder might have been triggered by some future tortuous incident in the course of his police service and reduced the amount of damages.
The Court of Appeal held that the effect of supervening events upon compensation was to be approached in general terms to provide just and sufficient but not excessive compensation, rather than on the basis general logical or universally fair rules. In discounting the sum that would otherwise represent the plaintiff’s loss of earnings to retirement by a percentage to reflect the risk that he would not in any event serve until retirement age, the judge did no more than apply what had become known as the “vicissitudes” principle. Here the danger was not under-compensation of the plaintiff but over-compensation of him, if future vicissitudes were not taken into account under the normal principle. In conclusion, the judge discounted the plaintiff’s chance of working to retirement too heavily. The assessment of 25 per cent was too low and an assessment of 50 per cent would be substituted.
THE CONTRASTING APPROACH OF THE APPELLATE COURTS
Re Polemis (Polemis v Furness, Withy & Co)  3 KB 560
Among the cargo of a ship was certain benzine and/or petrol in tins in cases, and owing to leakage there was petrol vapour in the hold. While some of the cases of benzine were being shifted by the charterers’ servants, a board was negligently knocked down into the hold, the ship burst immediately into flames and was totally destroyed. Arbitrators found that the fire arose from a spark igniting the petrol vapour in the hold; that the spark was caused by the falling board coming into with some substance in the hold; and that the causing of the spark could not reasonably have been anticipated from the falling of the plank, though some damage to the ship might reasonably have been anticipated.
The Court of Appeal held that the charterers were liable for all the direct consequences of the negligent act of their servants, even though the consequences could not reasonably have been anticipated. Whether the damage that ensues from an act or omission can be reasonably anticipated is only material as evidence of negligence.
Wagon Mound (No. 1) distinguished on the facts.
[Editorial Note. The difference in the findings of fact on which the different result reached in the present case to that reached in Wagon Mound (No. 1) is based is analysed at p. 717, letters G and H. It is also pointed out that law in regard to contributory negligence in New South Wales at the time of the first trial may have had bearing on what evidence was then tendered (see p. 717, letter E) …]
Liesbosch Dredger v SS Edison  AC 449
While the dredger Liesbosch was lying moored alongside a breakwater the steamship Edison fouled the dredger’s moorings and carried her out to sea, where she sank and was lost. The owners of the Edison admitted sole liability for the loss. Under a contract with the Harbour Commissioners the owners of the Liesbosch were engaged in constructive work in the harbour, for which a dredger was necessary and for which they were using the Liesbosch. The owners of the Liesbosch had staked their capital and credit on the successful result of the contract. The loss of the Liesbosch stopped the work and, being unable from want of funds to purchase any suitable dredger which was for sale, on May 4 1929, they hired a dredger, the Adria, which was more expensive in working than the Liesbosch, and required the attendance of a tug and two hopper barges. The Harbour Commissioners bought the Adria from her owners and on September 5 1930, they resold her to the owners of the Liesbosch for the same sum payable in instalments.
The House of Lords held that the measure of damages was the value of the Liesbosch to her owners as a profit-earning dredger at the time and place of her loss; and that it should include:
(1) A capital sum made up of (a) the market price on November 26 1928, of a dredger comparable to the Liesbosch; (b) the cost of adapting the new dredger and of transporting and insuring her; and (c) compensation for disturbance and loss suffered by the owners of the Liesbosch in carrying out their contract during the period between November 26 1928, and the date on which the substituted dredger could reasonably have been available for use, including in that loss such items as overhead charges and expenses of staff and equipment and the like thrown away, but neglecting any special loss or extra expense due to the financial position of one or other of the parties.
(2) Interest upon that capital sum from November 26 1928.
Alcoa Minerals v Broderick  3 WLR 23
A smelting plant which had been operated by the defendant since 1972 generated and dispersed into the atmosphere pollutants, noxious gases and corrosive dust, which the plaintiff claimed caused corrosion to the galvanised zinc panels of the roof of his nearby house and other injury to his property and health. When the damage had first occurred he had repaired it but by 1989 the damage had occurred again and he was unable to pay for the necessary repairs. In 1990 he commenced proceedings against the defendant claiming damages in nuisance. In his statement of claim he put his special damage at $211,140. Over the next few years the Jamaican economy was subject to rapid inflation and the value of the Jamaican dollar fell, consequently, the cost of repairing the roof increased considerably and in March 1994 the plaintiff was allowed to amend the figure for special damage to $938,400. In February 1995 the judge found for the plaintiff, awarded him special damages of $938,400 and granted an injunction. The Privy Council held:
- that the general rule in tort that damages should be assessed at the date of breach was subject to exceptions and if adoption of the rule produced injustice the court had a discretion to take some other date;
- that in contract and in tort there was no absolute rule that damages which resulted from the impecuniosity of the innocent party were too remote or that such impecuniosity was to be ignored when deciding the appropriate date for the assessment of damages;
- that the plaintiff’s claim involved only one head of damage, the cost of repairing the roof, which damage was a direct consequence of the tort, and the plaintiff’s lack of funds did not give rise to a second head of damage which could be isolated and attributed separately;
- that it was foreseeable that if the house of a person in the position of the plaintiff was seriously damaged he would not or might not have the wherewithal to repair it and that his ability to do so would depend on his establishing the liability of, and recovering damages from, the defendant and, consequently, the increased cost of repairing the damage was not too remote;
- that the plaintiff had behaved reasonably in waiting until money was available from the defendants to pay for the repairs and therefore was not in breach of his duty to mitigate his loss;
- that it would be a hardship for the plaintiff not to get the cost of repair as at the date when it was first established that the defendant had to pay; and
- that, accordingly, justice required that the date of judgment by the trial judge be taken as the date for the assessment of special damages.
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