5SSMN216 LAW AND MANAGEMENT SEM 2 2022 – 2023 TUTORIAL 3
DAMAGE, BURDEN OF PROOF & DEFENCES FEB 2023
To successfully prove negligence, the claimant must prove:
a) Duty of Care b) Breach of duty c) Damage - causation & remoteness
Also always consider defences - volenti and contributory negligence
NB Look out for problem question saying – unexpectedly / for no
apparent reason – this raises possibility of doctrine of res ipsa loquitur
applying – shifts burden of proof to defendant to disprove negligence.
1) Explain the meaning of causation and remoteness in relation to
negligence.
Causation To establish that the defendant’s breach of duty ‘caused’ the
claimants injury, the claimant needs to show:
1. Factual causation: ‘But for’ test – direct link between defendant’s careless
act and claimant’s loss or damage.
2. Legal causation: test of remoteness – damage suffered reasonably
fioreseeable
Factual Causation: ‘But for’ test: judge must ask: ‘But for breach of defendant’s
duty would harm to the claimant have occurred?’
Key case: Barnett v Chelsea & Kensington Hospital Management Committee (196)]
novus actus interveniens? Break in the chain of causation – so usually no
compensation – Lamb v Camden Borough Council(1981)
Legal Causation: test of remoteness
The loss suffered must not be too remote a consequence of the breach.
Key Case: Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd (the
Wagon Mound) (1961);
Consider egg-shell skull principle: providing the type of injury is foreseeable even
if the severity of the injury is due to some pre-existing special condition of C,
then D still remains liable for all losses.
Key case: Smith v Leech Brain & Co Ltd (1962) ; Lagden V O’Connor (2004)
2)What is the importance of res ipsa loquitur in a negligence claim?
Prompted by ‘unexpectedly’– ‘for no apparent reason’ – in a problem scenario
Inference of negligence drawn from the facts -the thing speaks for itself
– presumption that defendant’s breach of duty caused damage unless
defendant can rebut this presumption
1
, Scott v London and St Catherine’s Dock (1865)
bags of sugar fell on defendant from the defendant’s warehouse above
• Effect of res ipsa loquitur
Reverses burden of proof from claimant to the defendant– once raised,
there is inference of negligence and defendant must prove plausible
alternative non -negligent explanation.
Conditions for Res Ipsa Loquitur to apply:
(i) Defendant must have control over thing that caused the
damage. Easson v LNER (1944) – door of train opened miles from
station / doors were manually operated Held: LNER not liable
(ii)The accident must be such as would not normally happen
without negligence
Scott v London & St Katherine Docks (1965) plaintiff injured by 6
bags sugar that fell from defendants warehouse: Held :RIL applied
as D in control of situation which could not happen without
carelessness
Ward v Tesco Stores (1976)- W tripped on yogurt in Tesco Held: T
liable RIL applied
(iii) The cause of the accident must be unknown
Barkway v South Wales Transport (1950)- Bus careered across
road because of burst tyre – was RIL applicable? No because the
cause of the accident was because the tyre had hit the kerb on
previous occasions, so cause of accident was known.
Accident happened for no apparent reason.
2) Define and distinguish contributory negligence and volenti as defences to
negligence.
Once all the elements of a tort have been established, the only way D can
escape liability is to rely upon a defence.
3 main general defences:
1)Consent: Volenti Non Fit Injuria (literally translated: there can be no injury to
one who consents). D must prove:
(i)C had knowledge of the risk
(ii)C willingly consented to accept that risk (C must have had a choice
whether to accept the risk. N.B. Most people have to work for their livelihood
so continuing to work in a job that is known to carry risks is not taken as
consenting to the risk)
2
DAMAGE, BURDEN OF PROOF & DEFENCES FEB 2023
To successfully prove negligence, the claimant must prove:
a) Duty of Care b) Breach of duty c) Damage - causation & remoteness
Also always consider defences - volenti and contributory negligence
NB Look out for problem question saying – unexpectedly / for no
apparent reason – this raises possibility of doctrine of res ipsa loquitur
applying – shifts burden of proof to defendant to disprove negligence.
1) Explain the meaning of causation and remoteness in relation to
negligence.
Causation To establish that the defendant’s breach of duty ‘caused’ the
claimants injury, the claimant needs to show:
1. Factual causation: ‘But for’ test – direct link between defendant’s careless
act and claimant’s loss or damage.
2. Legal causation: test of remoteness – damage suffered reasonably
fioreseeable
Factual Causation: ‘But for’ test: judge must ask: ‘But for breach of defendant’s
duty would harm to the claimant have occurred?’
Key case: Barnett v Chelsea & Kensington Hospital Management Committee (196)]
novus actus interveniens? Break in the chain of causation – so usually no
compensation – Lamb v Camden Borough Council(1981)
Legal Causation: test of remoteness
The loss suffered must not be too remote a consequence of the breach.
Key Case: Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd (the
Wagon Mound) (1961);
Consider egg-shell skull principle: providing the type of injury is foreseeable even
if the severity of the injury is due to some pre-existing special condition of C,
then D still remains liable for all losses.
Key case: Smith v Leech Brain & Co Ltd (1962) ; Lagden V O’Connor (2004)
2)What is the importance of res ipsa loquitur in a negligence claim?
Prompted by ‘unexpectedly’– ‘for no apparent reason’ – in a problem scenario
Inference of negligence drawn from the facts -the thing speaks for itself
– presumption that defendant’s breach of duty caused damage unless
defendant can rebut this presumption
1
, Scott v London and St Catherine’s Dock (1865)
bags of sugar fell on defendant from the defendant’s warehouse above
• Effect of res ipsa loquitur
Reverses burden of proof from claimant to the defendant– once raised,
there is inference of negligence and defendant must prove plausible
alternative non -negligent explanation.
Conditions for Res Ipsa Loquitur to apply:
(i) Defendant must have control over thing that caused the
damage. Easson v LNER (1944) – door of train opened miles from
station / doors were manually operated Held: LNER not liable
(ii)The accident must be such as would not normally happen
without negligence
Scott v London & St Katherine Docks (1965) plaintiff injured by 6
bags sugar that fell from defendants warehouse: Held :RIL applied
as D in control of situation which could not happen without
carelessness
Ward v Tesco Stores (1976)- W tripped on yogurt in Tesco Held: T
liable RIL applied
(iii) The cause of the accident must be unknown
Barkway v South Wales Transport (1950)- Bus careered across
road because of burst tyre – was RIL applicable? No because the
cause of the accident was because the tyre had hit the kerb on
previous occasions, so cause of accident was known.
Accident happened for no apparent reason.
2) Define and distinguish contributory negligence and volenti as defences to
negligence.
Once all the elements of a tort have been established, the only way D can
escape liability is to rely upon a defence.
3 main general defences:
1)Consent: Volenti Non Fit Injuria (literally translated: there can be no injury to
one who consents). D must prove:
(i)C had knowledge of the risk
(ii)C willingly consented to accept that risk (C must have had a choice
whether to accept the risk. N.B. Most people have to work for their livelihood
so continuing to work in a job that is known to carry risks is not taken as
consenting to the risk)
2
