Torts

The extent to which a defendant is liable for the consequences of his wrongful act or omission. In contract, the defendant compensates for damage only if it was within his reasonable contemplation. He is presumed to have contemplated (and is therefore liable for) damage likely to result from the breach according to the usual course of events. Unusual damage resulting from special circumstances is regarded as within his contemplation only if a reasonable man, knowing what he knew or ought to have known, would have thought it liable to result.

In tort there is no single test to determine whether or not damage is too remote. In actions for negligence and other forms of liability based on fault, the defendant is responsible only for damage of the type he should have foreseen, but if damage of that type is foreseeable, it is no defence that the extent of the resulting damage is greater than could have been expected. In torts of strict liability, the defendant may be liable even for unforeseeable damage. Thus the keeper of an animal belonging to a dangerous species is liable for any damage it causes, whether foreseeable or not.

ld: T(�ie�,HX.a reasonably foreseeable consequence of allowing the plank to fall. However, it was reasonably foreseeable that the falling plank would cause some form of damage to the vessel. Because of this, the court established D's negligence. Whether the particular damage caused by the fire was recoverable depended solely on it being a direct consequence of the negligent act. Although the damage by fire could not have reasonably been foreseen as a consequence of dropping the plank, D was therefore liable for the loss of the ship by fire. The defendants chartered a ship and put in its hold drums of petrol. Re Polemis was not followed by the Privy Council in The Wagon Mound No.1. The Wagon Mound is now preferred. R v Croydon Health Authority (1997) CA [Tort - negligence - foreseeability of damage] D x-rayed C as part of medical for job as nurse. D failed to inform C and her GP of serious heart problem. C had a child and later became depressively ill thinking she had reduced life expectancy. Held: D not responsible for her becoming pregnant, damages reduced. Sayers v Harlow UDC [1958] CA [Tort - foreseeability of damage - contributory negligence] D a local authority provided public toilets. When C tried to leave the cubicle, she found the handle was missing. After trying for fifteen minutes to attract attention, she tried to climb out by standing on the toilet roll holder, but the roll rotated and C slipped and fell, injuring herself. Held: her actions were not unreasonable in the circumstances and the injury was a natural and foreseeable consequence of DD's negligence, and not too remote. However, her damages were reduced by 25% for her negligence in relying on the toilet roll as a secure foothold. Scott v Shepherd [1774] Ct of CP [Tort - negligence - remoteness of damage - intervening events] D (Shepherd) threw a lighted squib into a crowded market house, and it was thrown from one stallholder to another until it put out the claimant's eye. Held: Trespass and assault will lie for originally throwing a squib, which after having been thrown about in self-defence by other persons, at last put out the claimant's eye. De Grey, CJ "I look upon all that was done subsequent to the original throwing as a continuation of the first force and first act, which will continue till the squib was spent by bursting, and I think that any innocent person removing the danger from himself to another is justifiable. . . . I do not consider [them] as free agents in the present case, but acting under a compulsive necessity for their own safety and self-preservation. The defendant there was, I think, guilty of a public nuisance, and the [claimant] could have sued him in case." Blackstone J thought that [negligence], and not trespass, would lie against Shepherd. Simmons v British Steel plc [2004] HL Whole case here ^[Tort - remoteness of damage - primary victim - foreseeable harm includes psychiatric reaction following initial injury] D, the steel company that employed C. C fell and hit his head at work. He suffered depression and a pre-existing skin disease flared up, not because of the original injury "but from his anger at the happening of the accident" (lack of apology or support following the accident, and failing to prevent the accident when warned of the danger). Held: C was entitled to compensation for the consequences of the accident and not just for the physical injuries. C's anger was neither de minims nor an intervening act. C was "a primary victim" according to the classification in Page v Smith [1996] HL. A wrongdoer takes his victim as he finds him Smith v Leech Brain & Co Ltd [1962] CA. There must now be added these further qualifications: (1) that a defender is liable although the damage may be a good deal greater in extent than was foreseeable, as he can escape liability only if the damage can be regarded as differing in kind from what was foreseeable: Hughes v Lord Advocate (1963) HL; and (2) where it is established that physical injury to the pursuer was foreseeable, it is unnecessary to ask whether it was foreseeable that he would also suffer psychiatric injury: Page v Smith [1996] HL. The general rule is that it must be shown that the injury would not have occurred but for the act or omission of the defender. But if a number of factors contributed to the injury it is sufficient that the contribution which the factor attributable to the defender's fault made to the injury was material: Wardlaw v Bonnington Castings Ltd [1956] HL. C won Smith v Leech Brain & Co (1962) QBD [Tort - negligence - foreseeability of damage - application of the 'thin skull rule' is an exception] D the employers of a workman who was slightly splashed by molten metal through his employers' negligence and suffered a burn on his face. The burn aggravated a pre-existing cancerous condition and the man died. C his widow sued. Held: "injury to the person" was regarded as a single kind of damage and some minor injury at least was foreseeable. A tortfeasor took his victim as he found him, and the decision in The Wagon Mound did not override this principle; accordingly, since the type of injury which the workman suffered was reasonably foreseeable, defendants were liable for damages claimed, although they could not reasonably have foreseen the ultimate consequences of the initial injury, viz, that the burn would cause cancer from which S would die. C won Spartan Steel v Martin [1972] CA ^[Tort - negligence - damage - public policy] DD While digging a trench negligently cut off the electricity supply to PC's steelworks. Held: the value of the "melt" that was ruined by the power cut, including the profit directly associated with it was allowed. However, C did not succeed for loss of profits on four further melts that could have been completed during the period that the supply was cut off. The reason was probably the fear of opening the floodgates to many similar claims if a contractor severed the power supply to a whole estate or even a small town. There is no principle of ''parasitic'' damages in English law to the effect that there were some heads of damage which, if they stood alone, would not be recoverable, but would be if they could be annexed to some other claim for damages, i.e., that the economic loss in respect of the four ''melts'' was recoverable as a ''parasite'' by being attached to the claim in respect of the first ''melt.'' Lord Denning MR: At bottom I think the question of recovering economic loss is one of policy. Whenever the courts draw a line to mark out the bounds of duty, they do it as a matter of policy so as to limit the responsibility of the defendant. Whenever the courts set bounds to the damages recoverable--saying that they are, or are not, too remote--they do it as matter of policy so as to limit the liability of the defendant. Lawton LJ: The differences which undoubtedly exist between what damage can be recovered in one type of case and what in another cannot be reconciled on any logical basis. I agree with Lord Denning MR that such differences have arisen because of the policy of the law. Maybe there should be one policy for all cases; the enunciation of such a policy is not, in my judgement, a task for this court. C won. Stovold v Barlows [1995] CA [Tort - damage causation and remoteness - multiple causes - damages - causation of loss - action taken by third party ] D solicitors negligently failed deal with the sale of C's house, and the sale fell through. D had failed to deliver documents on time. Held: The purchaser might have preferred the house he actually bought even if the documents had been sent promptly and, so, the 'loss of chance' would be assessed at 50 per cent. On the question of causation where the loss depended upon the action of a third party, the correct approach is to evaluate the loss of the chance of the sale going ahead as a result of the defendants' negligence. Thompson v James (1998) CA [Tort - negligence - causation - intervening events] D a doctor advised C, the parents of a child not to have a measles vaccination. Child caught measles and suffered brain damage. Child's history suggested to D that immunisation would be more harmful than to most children. Held: There was no doubt as to the existence of a duty of care, it was not fair, just or reasonable to hold the defendant liable for the general advice he had given to C's parents. The advice given by other doctors to whom C had consulted was an intervening event. It broke the chain of causation because the parents were not acting on D's advice. It was not foreseeable that the defendant's failure to mention the alternative method of immunisation would have had a significant influence on the decision, given that both the parents and the defendant knew other doctors would be involved. C lost. Wagon Mound1 Overseas Tankship (U.K.) Ltd v Morts Dock and Engineering Co Ltd (The Wagon Mound) [1961] [Tort - negligence - remoteness of damage - type of damage foreseen] D carelessly discharged oil from their ship, the Wagon Mound, into Sydney Harbour. The wind and tide carried the oil beneath C's wharf where welding operations were being carried on by C's employees. After being advised that they could safely weld, C's employees continued their work. Some 55 to 60 hours after the original discharge, molten metal set some waste floating in the oil on fire. The flames quickly developed into a large fire which severely damaged the wharf. The oil also inhibited the use of C's slipways. Held: Damage to the wharf by the pollution of C's slipways was foreseeable. Damage by fire was not reasonably foreseeable. C was loath to admit the foreseeability of the fire risk because it was their workmen who actually set the oil alight. D not liable for the fire but liable for the fouling Comment: Liability turned on the question of whether the risk of fire was foreseeable, since furnace oil has such a high boiling point it is unlikely to catch fire under normal circumstances. In Wagon Mound 1 and 2, the two sequential claimants argued the risks of fire in opposite ways. Each of these diametrically different presentations of the risk of fire was accepted by the very same court as equally true and valid facts. Wagon Mound 2 The Wagon Mound (No 2), Overseas Tankship (UK), Ltd v The Miller Steamship [1967] [1966] PC [Tort - negligence - remoteness of damage - type of damage foreseen] D carelessly discharged oil from their ship, the Wagon Mound, into Sydney Harbour. The wind and tide carried the oil beneath a wharf where welding operations were being carried on. After being advised that they could safely weld, they continued their work. Some 55 to 60 hours after the original discharge, molten metal set some waste floating in the oil on fire. The flames quickly developed into a large fire which severely damaged the ships owned by C. Held: The damage was reasonably foreseeable (though admittedly very small) and therefore not too remote. If some damage, even minor damage, of a particular kind was foreseeable, then D would be liable for all such damage irrespective of the foreseeability of its extent and its immediate cause. The potential consequences of that unlikely occurrence were so serious as to give rise to a duty of care to avoid it. C won Comment: C owner of the burned ship played no part in creating the fire and thus proved that there is a positive, predicable risk that furnace oil might catch fire when spilled in a harbour. C recovered damages based exclusively on the finding that the risk of fire (for the same incident as The Wagon Mound 1) was greater than zero and D should be held responsible for foreseeable risks. Lord Reid: "It follows that in their lordships' view the only question is whether a reasonable man having the knowledge and experience to be expected of the chief engineer of the Wagon Mound would have known that there was a real risk of the oil on the water catching fire in some way: if it did, serious damage to ships or other property was not only foreseeable but very likely." In Wagon Mound 1 both C and D were eager to say that there was no foreseeability of furnace oil catching fire in a harbour. D because he would not be liable if there was no foreseeable risk and C because otherwise their cause of action could be barred for contributory negligence (it was a spark from their welding operations that set the fire going). The court ultimately found that the risk of fire was zero and denied recovery to C for fire damage because it was unfair to hold D responsible for such unforeseeable harm. Lord Reid: "So if the [claimants] in the former case had set out to prove that it was foreseeable by the engineers of the Wagon Mound that this oil could be set alight, they might have had difficulty in parrying the reply that then this must also have been foreseeable by their manager. Then there would have been contributory negligence and at that time contributory negligence was a complete defence in New South Wales." Wilsher v Essex Area Health Authority [1988] HL [Tort - negligence - causation - proximate cause - the balance of probabilities] D the hospital where C was born prematurely. D negligently gave C excess oxygen. The catheter was twice inserted into his vein instead of his artery. He developed an incurable eye condition. Held: His blindness could have been caused by any of half a dozen factors found in premature babies, of which the hospital's admitted negligence was just one. The combination of negligence and injury did not in itself create a presumption of causation. It was not for D to show an alternative cause but for C to show (on a balance of probabilities) that the negligence had caused the damage, or had at least materially contributed to it, and this he could not do. C lost, a retrial ordered. Disapproved Fairirchild v Glenhaven Funeral Services Ltd; Fox v Spousal (Midlands) Ltd; Matthews v Associated Portland Cement Manufacturers (1978) Ltd [2002]

In the United States, in order for a person to sue, you must be of legal age (18, or an emancipated minor), legally competent, and have what is referred to as "standing".

Standing means that:

• You were the party which suffered some form of damage, OR, you are the legal guardian/executor/ etc. of a person which cannot themselves sue (being a minor, mentally incompetent, dead, etc.) but which suffered damage
• The damage sustained must be actual or imminent, not theoretical or hypothesized. That is, you cannot sue because something might possibly cause you damage. You must actually suffer damage or the damage must have a very significant possibility of occurring in the very near future. The later case ("very significant possibility") has a strict legal definition, not the common language use.
• The damage you receive must be reasonably attributed to the defendant, not some third party (in practice, this is often abused when filing a lawsuit, but is generally quickly resolved when the case actually begins).
• The damage you sustain must be able to be stopped (or mitigated) by a favorable decision in the lawsuit. That is, if the damage you receive cannot be fixed (including via monetary compensation) or is inevitable, then you cannot bring the suit.

A person may sue any legal entity. However, certain suits against various government entities are disallowed, under the concept of Sovereign Immunity.