Causation
Cases
Hanrahan v. Merck Sharp and Dohme (Ireland) Ltd.
[1988] IESC 1; [1988] ILRM 629 (5th July, 1988)
Supreme Court
Henchy J. (Finlay CJ and Hederman JJ concurring)
1. The general nature of the case
1. The plaintiff Mrs. Mary Hanrahan is the registered owner of a farm of about 264 acres at Ballycurkeen, Carrick-on-Suir, Co. Tipperary. It was a thriving dairy farm and was run by Mrs. Mary Hanrahan with the aid of her husband until his death in 1969, and then with the aid of her daughter Dolly until the latter left the farm on her marriage in 1978. The management of the farm then devolved on her son the plaintiff John Hanrahan who lives there with his wife the plaintiff Mrs. Selina Hanrahan and their two children, Charles (17) and Ambrose (15).
2. The farm is situated in a quiet pastoral valley which up to 1976 was virtually free from industrial activity. That rural serenity was interrupted in March 1976 when the defendants, who are a branch of a large American-based industrial group engaged in the manufacture of pharmaceuticals, opened a factory for the manufacture or processing of pharmaceutical products in the nearby townland of Ballydine, about a mile from the plaintiffs’ farm. The factory employs about 250 people.
3. The factory is primarily engaged in the compounding or processing, at one stage or another, of particular pharmaceutical products. Its activity therefore necessarily involves the storage and use of large quantities of toxic substances and compounds and the keeping in the factory area, and the ultimate disposal therein as waste, of toxic and dangerous chemical residues. Clearly a high degree of care is necessary to avoid the risk of causing personal injury or material damage by the emission from the factory of toxic gases, vapours or other dangerous substances.
4. The complaint of the plaintiffs has been that from about 1978 until 1983 operations in the factory were conducted in such a way that the emission of toxic and dangerous gases, dusts, liquids or other substances was such that they each suffered ill-health and inconvenience, that they were subjected to offensive smells, that lack of thrift, abnormalities and deaths resulted in the farm animals, that damage was caused to herbage and plant life, and that there was corrosion of metal surfaces on the farm.
5. The plaintiffs commenced proceedings against the defendants in the High Court in 1982 seeking injunctions restraining the operation of the factory in a manner resulting in the damaging emissions complained of and claiming damages for the personal injuries and material damage alleged. The case came on for hearing in February 1985 and the hearing lasted 47 days. Reserved judgment was given by the trial judge in August 1985 dismissing the plaintiffs’ claim, primarily on the ground that the personal injuries, loss and damage complained of had not been shown to have resulted from any act or default on the part of the defendants.
6. The plaintiffs now appeal to this Court against that dismiss of their claim.
…..
3. The onus of proof
16. It is common case that the probative aspect of a claim in nuisance has been correctly expressed by Gannon J in the following passage from his judgment in Halpin and Ors v Tara Mines Ltd High Court 1973, No. 1516P, 16 February 1976.
17. A party asserting that he has sustained material damage to his property by reason of an alleged nuisance must establish the fact of such damage and that it was caused by the nuisance as alleged. It is no defence to such a claim, if established, that the activities complained of were carried out with the highest standards of care, skill and supervision and equipment or that such activities are of great public importance and cannot conveniently be carried out in any other way. In so far as the nuisance alleged consists of interference with the ordinary comfort and enjoyment of the property of the plaintiff, his evidence must show sensible personal discomfort, including injurious affection of the nerves or senses of such a nature as would materially diminish the comfort and enjoyment of, or cause annoyance to, a reasonable man accustomed to living in the same locality. To my mind the reasonable man connotes a person whose notions and standards of behaviour and responsibility correspond with those generally pertaining among ordinary people in our society at the present time, who seldom allows his emotions to overbear his reason, whose habits are moderate and whose disposition is equable.
18. It is clear from the authorities on the law of nuisance that what an occupier of land is entitled to as against his neighbour is the comfortable and healthy enjoyment of the land to the degree that would be expected by an ordinary person whose requirements are objectively reasonable in all the particular circumstances. It is difficult to state the law more precisely than that.
19. In this case the plaintiffs’ main complaints, namely that the emissions from the factory damaged their health and that of the livestock on the farm, are of so pronounced and serious a nature that no question of nicety of reaction arises. Either those complaints were caused by the emissions from the factory or they were not. If on the balance of probabilities they can be said to derive from factory emissions, then the case for nuisance has been made out. Anything short of that degree of proof would not support a finding of nuisance.
20. The ordinary rule is that a person who alleges a particular tort must, in order to succeed, prove (save where there are admissions) all the necessary ingredients of that tort and it is not for the defendant to disprove anything. Such exceptions as have been allowed to that general rule seem to be confined to cases where a particular element of the tort lies or is deemed to lie, pre-eminently within the defendants’ knowledge, in which case the onus of proof as to that matter passes to the defendant. Thus, in the tort of negligence, where damage has been caused to the plaintiff in circumstances in which such damage would not usually be caused without negligence on the part of the defendant, the rule of res ipsa loquitur will allow the act relied on to be evidence of negligence in the absence of proof by the defendant that it occurred without want of due care on his part. The rationale behind the shifting of the onus of proof to the defendant in such cases would appear to lie in the fact that it would be palpably unfair to require a plaintiff to prove something which is beyond his reach and which is peculiarly within the range of the defendant’s capacity of proof.
21. That is not the case here. What the plaintiffs have to prove in support of their claim in nuisance is that they suffered some or all of the mischief complained of and that it was caused by emissions from the defendants’ factory. To hold that it is for the defendants to disprove either or both of those matters would be contrary to authority and not be demanded by the requirements of justice. There are of course difficulties facing the plaintiffs in regard to proof of those matters, particularly as to the question of causation, but mere difficulty of proof does not call for a shifting of the onus of proof. Many claims in tort fail because the plaintiff has not access to full information as to the true nature of the defendant’s conduct. The onus of disproof rests on the defendant only when the act or default complained of is such that it would be fundamentally unjust to require the plaintiff to prove a positive averment when the particular circumstances show that fairness and justice call for disproof by the defendant. The argument put forward in this case for putting a duty of disproof on the defendants would be more sustainable if the plaintiffs had to prove that the emissions complained of were caused by the defendants’ negligence. Such is not the case. In my view, having regard to the replies given by the defendants to interrogatories and notices for particulars and to the full discovery of documents made by them, it is not open to the plaintiffs to complain that for want of knowledge on their part it would be unjust or unfair to require them to bear the ordinary onus of proof.
22. The plaintiffs have also invoked the Constitution in support of their argument as to the onus of proof. They contend that the tort relied on by them in support of their claim is but a reflection of the duty imposed on the State by Article 40.3 of the Constitution in regard to their personal rights and property rights. The relevant constitutional provisions are:-
1º The State guarantees in its laws to respect, and as far as practicable, by its laws to defend and vindicate the personal rights of the citizen.
2° The State shall, in particular, by its laws protect as best it may from unjust attack and in the case of injustice done, vindicate the life, person, good name, and property rights of every citizen.
23. I agree that the tort of nuisance relied on in this case may be said to be an implementation of the State’s duties under those provisions as to the personal rights and property rights of the plaintiffs as citizens. The particular duty pointed to by the plaintiffs is the duty to vindicate the personal right to bodily integrity and the property right to their land and livestock. They say that vindication of those rights under the constitutional guarantee is not properly effective by leaving them to their rights as plaintiffs in an action for nuisance and that the vindication they are guaranteed requires that once they show that they have been damnified in their person or property as alleged, it should be for the defendants to show that emissions from their factory were not the cause.
24. So far as I am aware, the constitutional provisions relied on have never been used in the courts to shape the form of any existing tort or to change the normal onus of proof. The implementation of those constitutional rights is primarily a matter for the State and the courts are entitled to intervene only when there has been a failure to implement or, where the implementation relied on is plainly inadequate, to effectuate the constitutional guarantee in question. In many torts – for example, negligence, defamation, trespass to person or property – a plaintiff may give evidence of what he claims to be a breach of a constitutional right, but he may fail in the action because of what is usually a matter of onus of proof or because of some other legal or technical defence. A person may of course in the absence of a common law or statutory cause of action, sue directly for breach of a constitutional right (see Meskell v C.I.E. IR 121); but when he founds his action on an existing tort he is normally confined to the limitations of that tort. It might be different if it could be shown that the tort in question is basically ineffective to protect his constitutional right. But that is not alleged here. What is said is that he may not succeed in having his constitutional rights vindicated if he is required to carry the normal onus of proof. However, the same may be said about many other causes of action. Lack of knowledge as to the true nature of the defendants’ conduct or course of conduct may cause the plaintiff difficulty, but it does not change the onus of proof.
25. It is also to be noted that the guarantee to respect and defend personal rights given in Article 40.3.1º applies only ‘as far as practicable’ and the guarantee to vindicate property rights given in Article 40.3.2° refers only to cases of ‘injustice done’. The guarantees, therefore, are not unqualified or absolute. I find it impossible to hold that Article 40.3.1° means that a plaintiff in an action in nuisance is to be relieved of the onus of proving the necessary ingredients of that tort. Neither, in my view, does Article 40.3.2° warrant such a dispensation, for the guarantee of vindication there given arises only ‘in the case of injustice done’, so it is for the plaintiff to prove that the injustice relied on was actually suffered by him and that it was caused by the defendant.
26. I would hold that the trial judge correctly rejected the submission of the plaintiffs that an onus of disproving the allegation as to causation should rest on the defendants.
4. The appellate jurisdiction of this Court
27. In a case such as this, where the function of the trial judge was to decide whether the plaintiffs had suffered the loss or damage complained of and, if so, whether the defendants’ factory was a causative source of that loss or damage, the jurisdiction of this Court in reviewing the judge’s findings of fact on appeal is necessarily limited. Statements as to the limitation of a court of appeal’s power to interfere with a trial judge’s finding of fact are to be found in a number of cases, but the most recent statement emanating from this Court on the matter is to be found in J.M. and G.M. v An Bord Uchtála [1988] ILRM 203, at p. 205:-
28. For the purpose of an appeal from a judge of the High Court to this Court, facts may be divided into two categories.
29. Firstly, there are primary or basic facts. These are determinations of fact depending on the assessment by the judge of the credibility and quality of the witnesses. It is for the determination of those facts that a viva voce hearing takes place. Because those facts depend on the oral evidence given and accepted in the High Court, this Court on appeal will not normally reverse such findings. Even if it deems different findings to be more appropriate, or even if the findings made seem to be incorrect, this Court will not normally interfere with them. That is because it has not had the advantage of seeing and hearing the witnesses as they gave their evidence. It is only when the findings of primary fact cannot in all reason be held to be supported by the evidence that this Court will reject them: see Northern Bank Finance Corp Ltd v Chariton [1979] IR 149.
30. Secondly, there are secondary or inferred facts. These are facts which do not follow directly from an assessment or evaluation of the credibility of the witnesses or the weight to be attached to their evidence, but derive from inferences drawn from the primary facts. Once the primary facts have been established viva voce, their consequences or implications for the purpose of the matters in issue must be found by a process of deduction from the facts found or admitted, rather than by an assessment of the witnesses or of the weight or the correctness of their evidence. In regard to such secondary facts, the advantage of the High Court judge who saw and heard the witnesses is of such minor importance that this Court will feel free to draw its own inferences if it considers that the inferences drawn by the judge in the High Court were not correct. Such secondary facts include all matters which are evaluative of the primary facts.
31. It is noteworthy in the present case that most of the primary facts, particularly the facts as to the existence of the matters complained of, are not in dispute. The real controversy, both in the High Court and in this Court, is whether as a matter of probability it can be held that emissions from the factory were a cause of the trouble. That is essentially a matter of inference. If, having found the primary facts, the judge was reasonably entitled to infer from them that the balance of probability did not identify emissions from the factory as causative of the complaints, the plaintiffs are not entitled to succeed in this appeal. On the other hand, if on a fresh appraisal of the primary facts as found or admitted, this Court is of opinion that the likelihood is that factory emissions were causative of the complaints, then this Court is entitled to substitute a conclusion to that effect for the exculpatory conclusion reached by the trial judge.
5. The nature and scope of the complaints relied on
32. The complaints relied on as supporting the claim for damages may be broadly classified as follows:-
1. Ill-health suffered by each of the plaintiffs.
2. Ill-health, abnormalities and deaths, occurring in the cattle on the plaintiffs’ farm.
3. Personal inconvenience and discomfort, mainly in reference to smells, suffered by the plaintiffs.
4. Damage to herbage and plant life on the farm.
33. There was originally a complaint also as to damage by corrosion of metal surfaces on the farm, but this ground of complaint has not been pursued.
34. There is no doubt, and it seems to have been so found by the judge, that during the relevant time (i.e. 1978 to 1983) each of the plaintiffs suffered ill-health; the health of the dairy herd deteriorated and abnormalities of different kinds and deaths took place among the cattle; discomfort and distress were evident in man and beast, particularly in relation to the effect on the plaintiffs of offensive smells; and there was an observable retardation of and damage to growing things.
35. The judge’s dismiss of the plaintiffs’ claim in respect of each of those complaints was, as the judgment shows, due to his finding that as a matter of probability they had not a common cause, namely factory emissions. While the plaintiffs’ claim rested primarily, on evidence of what was felt or observed at the time, the defendants’ case was primarily one of rebuttal based on scientific evidence of a reconstructive nature. It is for that reason that counsel for the plaintiffs have urged that there is greater force and credibility to be given to the first-hand evidence of witnesses whose truthfulness was not called into question, as opposed to the largely abstract ex post facto evidence of scientists who had no direct or personal experience of the matters complained of. Consideration must of course be given to such a submission, as well as to the submission that the various complaints should not be viewed in isolation, that they are necessarily interlinked, and that evidence of the source of one complaint may be treated as corroborative or confirmatory of the source of another complaint, such as that the evidence of a witness that he experiences an offensive chemical smell should be coupled with his evidence that at the very same time he noticed cattle in deep distress. Such direct sensory perception, it is urged, may be pointed to as sufficient to prevail over scientific opinions as to the non-toxic cause of the distress in the cattle.
6. The complaint as to smells
36. I deal with this complaint first, not because it is the most serious, but because it is the most amenable to clear resolution and because it casts direct light on the other complaints.
37. The evidence as to offensive smells from the defendants’ factory was extensive and largely uncontroverted. I give the following abbreviated samples from the evidence.
38. The plaintiff John Hanrahan gave evidence that he began to experience an unpleasant smell in 1979. According to him it was ‘a dreadful smell, a really dreadful smell’. He complained about it to the factory on numerous occasions. On the occasion of one of those complaints Mr. Wyatt, an executive in the factory, said that the waste system had gone wrong. Mr. Hanrahan described the smell as foul and as following him into the house. He said that on one occasion the smell was accompanied by ‘a dreadful burning’ and that his skin was affected.
39. The plaintiff Mrs. Mary Hanrahan said that she first experienced a bad smell in 1978. It was so bad that some people thought their haybarn was on fire. She described the smell as being like what she describes as the horrible smell that is emitted when a blacksmith puts a hot iron on a horse’s hoof. She said that when she complained to the factory people about the smell they said it would never happen again.
40. The plaintiff Mrs. Selina Hanrahan described how she experienced unpleasant and distressing smells accompanied by clouds of emissions from the factory and which frequently caused her eyes to stream.
41. John Callanan, a neighbouring farmer who lives about a mile to the east of the factory, said he first noticed the foul smell in the Spring of 1979. He complained of it to Mr. Wyatt in the factory, who explained the smell by saying that they had gone over to the manufacture of a product called sulpinac. Mr. Callanan said that, despite assurances given, the offensive smell returned in the Autumn of 1979 and became so offensive and pervasive that they used never open the windows of their house. According to him the smells continued to be emitted by the factory until May 1983.
42. John Tobin, a neighbouring farmer who lives about a mile to the north of the factory, described experiencing unpleasant smells on five or six occasions.
43. Martin Long, a farmer who lives about 100 yards from the factory, said that he experienced unpleasant smells from the factory from twelve to twenty times in the late 1970s. The smell was so severe that his mother, with whom he lives, complained to the factory.
44. John Wallace, whose land is about 2½ miles to the north of the factory, said he first noticed the unpleasant smell from the factory in July 1983. ‘It was strong, objectionable, very objectionable. You would not stay too long where it would be’. He again experienced it in 1984, but then it was a stronger, burning smell and he felt somewhat overcome by it.
45. Thomas Rockett, whose farm lies 1½ miles north-east of the factory and beside the plaintiffs’ farm, said that in 1981 he noticed a range of different smells from the factory, some of which would ‘burn the eyes out of you’.
46. The foregoing is but a short selection from the evidence given as to the intensity and frequency of the objectionable smells from the factory. Not alone were the plaintiffs’ complaints as to smells amply corroborated but the defendants admitted that they had received complaints as to smells on over 200 occasions. It is not surprising that the judge’s conclusion as to the existence of the smells was as follows:
47. There is undoubtedly evidence that on a number of occasions the processes carried on in the defendants’ factory were responsible for offensive odours which were legitimately and reasonably objected to by the plaintiffs and many others living in the area of the factory.
48. However, he went on to find that ‘it does not appear that they [the odours] were ever on such a scale or intensity as to justify the award of damages’. This conclusion seems to me to be incorrect, not so much as an inference drawn from the facts as a misinterpretation of the relevant law.
49. As I have pointed out earlier in this judgment, by reference to the cited passage from the judgment of Gannon J in Halpin and Ors v Tara Mines Ltd, where the conduct relied on as constituting a nuisance is said to be an interference with the plaintiffs’ comfort in the enjoyment of his property, the test is whether the interference is beyond what an objectively reasonable person should have to put up with in the circumstances of the case. The plaintiff is not entitled to insist that his personal nicety of taste or fastidiousness of requirements should be treated as inviolable. The case for damages in nuisance – we are not concerned here with the question of an injunction – is made out if the interference is so pronounced and prolonged or repeated that a person of normal or average sensibilities should not be expected to put up with it. It is not necessary that an interference by objectionable smell should be so odious or damaging that it affects the plaintiffs’ health. It is enough if it can be said that a reasonable person in the plaintiffs’ circumstances should not be expected to tolerate the smell without requiring the defendants to make financial amends. I consider that the plaintiffs have made out such a case.
50. I would hold that each of the three plaintiffs has made out a case for damages for nuisance caused by offensive smells from the defendants’ factory.
7. The complaint as to John Hanrahan’s health
51. It is the contention of the plaintiff John Hanrahan that the factory emissions seriously affected his health. The particular evidence as to this complaint must be considered against the background of the general evidence as to emissions from the factory.
52. The three main possible sources of atmospheric pollution caused by emissions from the factory are:-
1.A 120 ft. high chimney over a boilerhouse where heavy fuel oil is burned. The smoke from this chimney as an atmospheric pollutant is comparable to that emitted by chimneys in other industrial buildings where oil-fired boilers are used for heating or in power stations.
2.Certain exit points from the manufacturing or process building but more particularly what is referred to in the evidence as the scrubber stack.
3.The incinerator, a construction in which the waste chemicals are burned. Because the function of the incinerator is to effect the destruction by combustion of dangerous waste chemicals and solvents and because the incinerator was for significant periods in the years in question running at below its design temperature and therefore at a heat which was not adequate to destroy dangerous and contaminated solvents, it is marked out by the plaintiffs as the primary source of atmospheric pollution on their farm.
53. The evidence seems to me to show beyond doubt that atmospheric pollution in the neighbouring farms was caused by emissions from the factory. I have already dealt with the widespread complaints of offensive smells from the factory. There was also evidence from a variety of witnesses, which evidence went largely uncontroverted, of complaints such as a burning sensation in the throat and chest, reddening of the skin, irritation and streaming of the eyes and a smothering feeling in the nose, throat and chest. While complaints of that kind seem to have been experienced by different people in the area, the plaintiffs seem to be the only people who claimed that the atmospheric pollution affected their health. Whether or not the Hanrahan farm vis -a -vis the factory was in a special meteorological position, there was unimpeached independent evidence that the complaints of physical ill-effects in humans on the plaintiffs’ farm were matched by observable distress in the animals on the farm. In fact, the judge held that the evidence established that human and animal ill-health and unusual damage to plant life occurred on the plaintiffs’ farm in the relevant period. The only real question, therefore, is whether the judge’s finding of no causal connection between those complaints and emissions from the factory can be sustained.
54. Before dealing with the evidence of John Hanrahan and his medical advisers as to his ill-health, I think attention should be directed to the extent and variety of the evidence as to abnormalities on the plaintiffs’ farm as a consequence of pollution from the factory. Different witnesses described seeing clouds of emissions coming from the factory, feeling at such times discomfort and distress, noticing animals coughing and lowing and later finding unexplained abnormalities in the herd, and observing decay in plant life. Coupled with such evidence is the defendants’ admissions, supported by hundreds of complaints, that the emissions gave offence. Even if all the complaints made by or on behalf of the plaintiffs are not accepted, there were uncontroverted items of complaints which suggested that the factory emissions were at the root of the trouble. For example, John Hanrahan gave evidence that the ivy on the trees on the farm facing the factory withered. Evidence of that kind would lead one to expect complaints of human or animal ill-health.
55. John Hanrahan gave evidence to the effect that, after seeing clouds of emissions coming from the factory and experiencing foul smells and burning sensations on his skin and in his eyes and blisters on his tongue and on his head, his general health deteriorated. In particular he suffered from wheezing and pains in his chest. He attended his local general practitioner who referred him to a specialist.
56. The specialist was Dr. Muiris Fitzgerald, Professor of Medicine in University College, Dublin and a consultant in respiratory diseases in St. Vincent’s Hospital, Dublin. Professor Fitzgerald gave evidence that he
first saw John Hanrahan in 1980 when he found him suffering from wheezing and pulmonary obstruction which he then ascribed to either environmental pollution or asthma. Professor Fitzgerald admitted him to hospital for pathological and other tests in 1980 and again in 1982. A pathologist gave evidence that blood samples from John Hanrahan tested by him showed a condition known as mild hyperchloraemic acidosis. Another pathologist found a mild decrease in the white cell count in the blood which was consistent with poisoning by solvents.
57. Professor Fitzgerald having treated Mr. Hanrahan over a period of 4½ years from 1980, and having the benefit of pathological and haematological reports, gave evidence of his final opinion as to causation in the following terms:-
58. I would say that if it is shown that fumes, dusts, vapours, chemicals are present in the botanical life or animal life in the area, and if appropriate environmental meteorology in the evidence is compatible, and if it is shown that materials, acids, vapours are emanating from a source contiguous to the farm, then the balance of probabilities very much favours [the conclusion] that his lung disease can be attributed to a toxic substance.
59. That carefully worded opinion stood undisturbed at the end of the hearing by any contrary medical opinion. It meant, in the context of the other evidence in the case, that Professor Fitzgerald’s considered opinion was that, on the balance of probabilities, John Hanrahan’s lung disease was caused by toxic emissions from the factory, for that was the only local source of toxic substances.
60. Nevertheless, the judge held that John Hanrahan had failed to adduce sufficient evidence to support a finding that the factory was the source of his illness. The judge seems to have considered that Professor Fitzgerald’s opinion was overborne by the absence, unexplained, of evidence by John Hanrahan’s general practitioner and by the fact that evidence of similar complaints by other members of his family had not been given.
61. I am of opinion that the judge’s ruling was incorrect and was not supported by the evidence. The qualifications expressed in Professor Fitzgerald’s opinion were satisfied and there was no other opinion to the contrary. In those circumstances the opinion should have been accepted unless it appeared from the evidence as a whole that it was not worthy of acceptance. Neither of the two matters put forward as grounds for rejection of the opinion could properly be held to disestablish Professor Fitzgerald’s opinion. The likelihood is that Professor Fitzgerald’s opinion was given in the knowledge that none of John Hanrahan’s family had experienced similar symptoms and it does not appear to have been suggested to him in cross-examination that his opinion may have been weakened or invalidated by that fact. Neither could the absence of evidence by the general practitioner be treated as implying that such evidence, if given, would weaken Professor Fitzgerald’s opinion. It would be idle to speculate why the general practitioner was not called as a witness. The mere absence of such evidence could not, in my view, be treated as throwing any light on John Hanrahan’s previous medical history, particularly as when he was examined in December 1984 (by which time the nuisance had been abated) by a consultant physician acting on behalf of the defendants it was found that his chest condition was normal, thus indicating that he had not at the relevant time been suffering from any chronic pulmonary disorder.
62. I would hold that John Hanrahan is entitled to damages for the ill-health he suffered as a result of the nuisance caused by the factory emissions.
8. The complaint as to Mrs. Mary Hanrahan’s health and Mrs. Selina Hanrahan’s health
63. Mrs. Mary Hanrahan did not give evidence of any specific form of ill-health alleged to have been suffered by her as a result of factory emissions. When asked in the witness box what was the ill-health she was blaming the factory for, she said: ‘I think my doctor will tell you that. I could not even tell you what it is’. In the event no doctor who had treated her was called to give evidence. Her complaint was therefore too vague and insubstantial to form the basis for an action in nuisance. The judge’s rejection of it cannot in my view be disturbed.
64. The judge also rejected Mrs. Selina Hanrahan’s complaint of ill-health. In January 1981 she was admitted to hospital in Waterford suffering from a uterine haemorrhage and was detained for seven days. She said that for the rest of that year she felt poorly, suffering from streaming eyes, sore nose and sore throat. In 1982 she was admitted to hospital twice, suffering from uterine haemorrhages. In September 1982 she underwent a hysterectomy, after which her general health seems to have improved. Having regard to the gynaecological nature of her complaints and the fact that there was no medical evidence to connect those complaints with factory emissions, it is not surprising that the judge rejected those complaints. I am at one with him in reaching that conclusion.
9. The complaint of damage to plant life
65. Evidence was given by the plaintiffs Mrs. Mary Hanrahan and John Hanrahan of damage to certain plants, vegetables and flowers on the farm and this evidence was confirmed by a number of experts who considered air pollution by the factory to be the likely cause. The judge did not in his judgment specifically reject this evidence, but it is implicit that he did not consider that a case for damages for nuisance in this respect had been made out. While this evidence may be thought to support other complaints of damage by pollution from the factory, because of its vagueness as to the extent of damage caused or loss suffered, I find no reason to question the rejection of this evidence as a separate basis for an award of damage for nuisance.
10. The nature and extent of the factory emissions
66. The main ground relied on by the plaintiffs for an award of damages for nuisance is the ill-effects suffered by the dairy herd on the farm as a result of the factory emissions. The defendants have sought to rebut that complaint in two ways: (1) by showing that the factory emissions were not such as to affect the health of the animals and (2) by showing that any ill-effects suffered by the animals were due to causes which were not factory-related.
67. It appears to be an unquestionable fact that the defendants’ factory is the main source of hydrogenchloride and hydrochloric acid mists in the Suir valley. The possible effects of such emissions have to be considered in terms of factors such as air chemistry, meteorology, the height of the factory chimneys, the configuration of the Suir valley, local meteorological features (such as the inversion by which air is trapped in the valley when winds are light) and the effect of prevailing winds. Readings taken at the points of emission in the factory are therefore not necessarily a sound guide as to the consequences of the emissions in different parts of the valley. For example, some of the emissions take place at levels below that of the valley floor, and the top of the scrubber stack is on a level with the ground floor of the plaintiffs’ house. The point has been taken that factory readings and the results shown by computer models do not take account of what actually happens in the Suir valley. The criticism has also been made that measurements of airborne concentrations on the plaintiffs’ farm give no more than an average daily concentration, thus leaving out short violent emissions and not taking into account the deleterious effect, particularly on grazing animals, of prolonged low-level emissions of gases and mists of unknown degrees of toxicity.
68. A considerable amount of scientific evidence was adduced at the trial as to the actual or possible effects of the factory emissions, and that evidence is summarised and carefully analysed in the judgment under review. I need not go through it because the judge held that ‘the only evidence in the case of measurements of toxic gases, vapours or other substances on the Hanrahan farm during the relevant period on which reliance can be placed is the evidence of Dr. Jameson’.
69. Dr. Jameson is a chemist employed by An Foras Forbartha who made reports in 1980 and 1982 on air pollution in the Ballydine area of Co. Tipperary, including the plaintiffs’ farm. His conclusions were based on a monitoring of ambient air concentrations. He found that the concentrations recorded were well within the guidelines used by many authorities.
70. Counsel for the plaintiffs have criticised those findings on a number of grounds, such as that they are based on fixed-time emissions only and that the standards applied are for humans rather than animals. Although the concentrations of acid vapours found on the plaintiffs’ farm by Dr. Jameson were said by him to be low, he agreed that they were 3½ times higher than those recorded on adjoining lands.
71. A consideration of the scientific evidence as a whole given on behalf of the defendants leads me to the conclusion that, even if accepted in full, it only shows what could or should have happened in the way of damage by toxic emissions. In the light of what did happen in the way of toxic damage, I consider that the defendants’ evidence could not be held to rebut the plaintiffs’ case. Theoretical or inductive evidence cannot be allowed to displace proven facts. It was proven as a matter of probability that John Hanrahan suffered ill-health as a result of toxic emissions from the factory. It was a fact, and so found by the judge, that there was unusual damage to some plant life on the plaintiffs’ farm in the relevant period, the only suggested source of this damage being the factory. And there was a volume of uncontroverted evidence given by eyewitnesses that animals were seen and heard to be ill and in distress at a time when the observer was experiencing foul chemical smells or weeping eyes or irritated skin, which could have been caused only by the factory. It would be to allow scientific theorising to dethrone fact to dispose of this claim by saying, as was said in the judgment under appeal, that there was ‘virtually no evidence in this case of injury to human beings or animals which has been scientifically linked to any chemicals emanating from the defendants’ factory’.
72. There are many factors which seem to me to render unacceptable the conclusion that it has not been proved as a matter of probability that the ill-health suffered by the animals was not caused by factory emissions. I instance the following four considerations:-
1. The plaintiffs’ dairy herd was a thriving one up to the time when smells and other factory emissions were noticed.
2. The five veterinary surgeons who regularly saw and treated the animals in the relevant period were all of the firm opinion that what the animals were suffering from was caused by toxic emissions from the factory.
3. The factory incinerator, which was designed to burn, destroy or render harmless seven tons a day of chemical solvents was run for long periods at temperatures which were too low to achieve the desired result, thus breaching one of the conditions of the planning permission for the factory and making damage to humans and animals highly likely.
4. The ailments suffered by the cattle – evidenced by streaming eyes, coughing, a high incidence of abortions, twinning and of calves born deformed, reduced milk yields, sore and cut teats, stampeding, marked lack of thrift, and want of sexual capacity in the bulls – were too pronounced and varied to be accounted for by natural causes such as (as was suggested by the defendants) hoose or bad farm management. The most credible explanation offered for the ailments and abnormalities in the cattle was the toxic emissions from the factory.
73. I would therefore allow the appeal against the finding that the plaintiffs had not established as a matter of probability that the complaints about the condition of the cattle were not causally linked to toxic emissions from the defendants’ factory.
11. The question whether the cattle ailments were due to causes other than factory emissions.
74. A considerable amount of evidence was given in the High Court on behalf of the defendants suggesting that the decline in the health of the dairy herd was due, not to toxic emissions from the defendants’ factory but to causes such as hoose or other animal ailments, or bad husbandry in the form of overstocking, inadequate culling, inbreeding, or poor silage and general farming practices. I have already held that the evidence established as a matter of probability that there was a causal relationship between the animal ailments and the factory emissions. What should have been in issue at the trial was whether the animal ailments were due entirely to the factory emissions. This question was never really addressed at the trial, for the case seems to have developed into a question whether the cause of the trouble was the factory or not. It is true that some of the defendants’ witnesses gave evidence suggesting that it was unlikely or impossible that factory emissions were the cause of the trouble. However, by the end of the case the question calling for an answer, particularly for the purpose of assessing damages, was whether the factory emissions were the sole cause of the animal complaints and consequently of the plaintiffs’ losses. The judge made no finding on this point because he discounted factory emissions as a cause of the plaintiffs’ complaints. All he held on this matter was that ‘there is clear evidence to indicate that the undoubted deterioration in the quality of the herd on the Hanrahan farm could have had other explanations [than the factory emissions]’.
75. In the circumstances it would not be proper for this Court to make the necessary findings as to the extent of causality which were not made in the High Court and which are a prerequisite to the assessment of damages in respect of the cattle. The hearing in the High Court dealt more with liability than damages. I consider that a further hearing in the High Court is necessary for the purpose of assessing damages and of making the findings necessary for such assessment.
12. Conclusions
76. I would allow this appeal by the plaintiffs to the extent of holding that the three plaintiffs have established that the defendants are liable to them in damages for the offensive smells emitted from the factory, that John Hanrahan is entitled to damages for the injurious effect on his health of the factory emissions, and that the defendants are also liable in damages for the cattle ailments to the extent that they were caused by factory emissions. Since it is desirable that all the damages should, at least at first instance, be assessed by the same tribunal, I would remit the case to the High Court for both the assessment of the damages and the making of the findings necessary for such assessment.
Reeves v. Carthy
[1984] IR 348 O’Higgins C.J.
These proceedings have been brought by the plaintiff against the two defendants, who are general medical practitioners, because of a serious and incapacitating stroke which he suffered on the 9th June, 1977. The two defendants are members of a medical service known as “Doctor on Call” and each, on separate occasions on that date, answered a call made by the plaintiff’s wife to a designated doctor who was unable to attend. The plaintiff alleges that each defendant, in his attendance upon and treatment of him, was guilty of negligence and breach of duty and that, as a result, later that day the plaintiff suffered a stroke which has seriously and permanently incapacitated him. The plaintiff’s claim was tried over several days in the High Court before Mr. Justice Gannon and a jury. At the conclusion of all the evidence in the case, the learned trial judge acceded to an application made on behalf of both defendants that the case should be withdrawn from the jury. He did so on the grounds, advanced on behalf of the defendants, that even if there was evidence of negligence or breach of duty against the defendants, or either of them, the occurrence of a stroke was not reasonably foreseeable and, accordingly, liability could not be established. This appeal has been brought by the plaintiff against that decision.
As indicated, the trial which is required to be reviewed by this appeal lasted a number of days. The evidence and submissions cover six books of transcript. It would not be possible or desirable in this judgment to refer to this large amount of evidence in any great detail. I propose, therefore, to set out what I conceive to be the case made by the plaintiff against each defendant, and to consider the salient features of the evidence upon which this case is claimed to rest. Having dealt with the question of negligence in relation to each defendant, I propose then to deal with the relevance of foreseeability in a case such as this and with the legal principles which, in my view, apply.
As against the first defendant (Dr. Carthy), the plaintiff makes two allegations of negligence and breach of duty. He alleges that, although he was obviously ill and in pain, Dr. Carthy proceeded to diagnose the plaintiff’s condition and to treat him without carrying out any physical or medical examination. As a result, the plaintiff complains, the real nature of his illness was not discovered or diagnosed nor was he removed to hospital until it was too late. In the second place, the plaintiff alleges that Dr. Carthy’s treatment was contrary to accepted practice in that, without such examination, he injected the plaintiff with two doses of a drug containing morphine, which masked and concealed the plaintiff’s symptoms and the critical nature of his illness. The plaintiff’s case is that, were it not for these acts of negligence on the part of Dr. Carthy, the serious nature of his illness would have been discovered earlier and, as a consequence, he would not have suffered the stroke which he suffered later that day.
The evidence in support of this case was that given by the plaintiff’s wife, Mrs. Reeves, and also the expert opinions of medical witnesses upon the nature of the plaintiff’s illness and upon what was required of Dr. Carthy in the circumstances. Mrs. Reeves said that her husband had had a long history of gastric and stomach upsets which had been treated by the family’s usual medical attendant, Dr. McNiff, and later by a Dr. Fenton. The plaintiff had been referred earlier that year to Dr. Steevens’s Hospital for X-ray examination but with a negative result. Later, following another attack, he had been sent by Dr. Fenton to St. James’s Hospital for tests. Again, apart from a report that the plaintiff suffered constipation and bowel irregularity, the result was unenlightening.
At some time after 8 o’clock on the evening of the 8th June, 1977, while being driven home by his wife, the plaintiff got a sudden and severe gastric, or stomach, upset. He was doubled up in pain and he vomited. His wife got him home and to bed. His pain and distress continued in between periods of dozing. Having tried to summon other medical assistance, Mrs. Reeves eventually was put in contact with “Doctor on Call.” As a result, Dr. Carthy arrived at 3 a.m. on the 9th June. She apologised for calling him at such a late hour. He said that it was quite all right as he had been at a party. She told him of the events of the previous evening and how her husband had been up to then. She also gave him full details of her husband’s previous medical history.
In the bedroom the plaintiff said that he was constipated and he asked for something to kill the pain. Dr. Carthy said____ “You are a great man, you seem to know what is wrong with you, turn over and I will give you an injection.” Dr. Carthy then gave the plaintiff the first injection. When, some time later, the plaintiff said the pain was still there, Dr. Carthy gave him a second injection. Mrs. Reeves was positive that Dr. Carthy did not carry out a physical examination of the plaintiff. She said that he left, leaving two tablets, and telling her____ “I don’t think you’ll need to call us again.” Under cross-examination she could not recall Dr. Carthy taking her husband’s blood pressure or temperature or pulse, but she conceded that these might have been taken without her noticing. She was in no doubt about Dr. Carthy’s failure to carry out a medical examination of her husband and, despite suggestions to the contrary, she repeated many times that he had not done so. She also stated positively that she had told Dr. Carthy of her husband’s vomiting during the previous evening.
While it is not necessary to examine or consider Dr. Carthy’s evidence in so far as it contradicts that of Mrs. Reeves, it is only right to say that he was adamant that he must have examined the plaintiff. Dr. Carthy based this not on a recollection of his having done so but on his clinical notes recorded immediately after his visit. These notes recorded as his clinical findings “epigastric pain . . . no vomiting or diarrhoea.” He said that he could not have recorded epigastric pain without putting his hand on, and examining, the plaintiff’s stomach. He did not deny that Mrs. Reeves could have told him of the vomiting, but he was not asked to explain his entry in this respect. Dr. Carthy did not regard the plaintiff’s condition as serious and diagnosed a peptic ulcer. He agreed that he gave an injection of cyclomorph (a drug containing morphine).
Before dealing with the visit of the second defendant (Dr. O’Kelly), it is necessary now, in relation to the case against Dr. Carthy, to deal with the plaintiff’s admission to hospital and his condition at that time. In dealing with the case against Dr. O’Kelly I must, of course, return to what happened after Dr. Carthy left and before the admission to hospital.
At some time after 12 noon the plaintiff struggled from his bed, shouted for his wife and collapsed at the bannisters outside his bedroom; he was then unable to speak. Mrs. Reeves, in great distress, summoned an ambulance and she travelled with the plaintiff in the ambulance to St. James’s Hospital. On arrival he was given immediate emergency medical aid as his life was obviously in danger. It was recognised that he had suffered a right-sided hemiplegia or stroke and an acute abdominal catastrophe, which meant that there had been an extensive perforation of fluid into his abdomen. As this perforation required surgery, he was prepared for such and was operated on that night. As a result of the operation, it was discovered that the plaintiff suffered from a condition known as Crohn’s disease (which is an inflammation of the bowel) and that this had led to the perforation and abdominal catastrophe. The evidence established that Crohn’s disease was a chronic condition which was extremely difficult, if not impossible, to diagnose without operation; it might cause only mild trouble and then disappear or it could suddenly become acute and cause a perforation, as it did in this case.
Apart from indicating the nature and cause of the plaintiff’s condition on admission to hospital, the medical evidence called on his behalf established other matters which appear to be relevant in considering the case against Dr. Carthy. This evidence is also relevant in considering the case against Dr. O’Kelly, with which I will deal later. This evidence was to the following effect.
A perforation of the abdomen may commence as a small leak through any part of the abdominal wall. As it develops, it affects the circulation of the blood as fluid accumulates in the abdominal cavity. This is called hypotension or a condition of low blood pressure and is extremely dangerous. If the perforation and resulting hypotension condition continue to exist without relief, a condition of shock may set in. When that happens, the arms and legs get very cold because the body shuts off their supply of blood in order to maintain a blood supply to the vital organs the brain, the kidneys and the heart. If this condition continues without relief, a stroke may result because of the death of a portion of the brain. A stroke does not usually occur to a person as young as the plaintiff. However, having Crohn’s disease, he had a mild predisposition to a stroke. Apart from Crohn’s disease, and even in the case of a young person, a prolonged period of hypotension can lead to a stroke. The plaintiff’s stroke could have been averted had he been admitted to hospital earlier than 11.30 a.m., and the acute abdominal catastrophe could have been prevented had he been admitted around 4 a.m. on the same day.
There was also other medical evidence to the effect that any doctor should regard a night call as serious and that, in the circumstances of this case, a failure to carry out a physical examination of the abdomen was wrong medical practice. There was also evidence to the effect that the administration of morphine, without a satisfactory examination and diagnosis, was dangerous. In particular, in relation to a diagnosis of peptic ulcer, which is not a complication, to give such a drug was wrong. The proper treatment and the treatment indicated in such circumstances is the administration of an anti-acid. A dangerous result of the administration of morphine was the masking of symptoms which, in the case of abdominal pain, could lead to delay in diagnosing an acute abdominal catastrophe and thus endanger the patient’s life.
I turn now to the plaintiff’s case against Dr. O’Kelly. The plaintiff alleges that Dr. O’Kelly, having been informed of the recent and earlier medical history, and having conducted a proper medical examination, failed to communicate to the plaintiff or his wife the serious nature of the plaintiff’s illness. In particular, it is alleged that Dr. O’Kelly failed to apply any, or proper, pressure to have the plaintiff removed to hospital. It is further alleged that, despite symptoms of which he was made aware and his own findings on examination, Dr. O’Kelly injected the plaintiff with a drug which was contra indicated and which was highly dangerous in the circumstances.
In support of these allegations the plaintiff relied on the evidence of his wife, on a medical record of Dr. O’Kelly’s examination and on certain medical evidence to which I will refer. Mrs. Reeves said that the plaintiff slept for some time after Dr. Carthy had left. The plaintiff then awoke and vomited blood. Mrs. Reeves then started telephoning for a doctor. She had great difficulty in making contact. Eventually, shortly before 9 o’clock on the morning of the 9th June, Dr. O’Kelly arrived. Mrs. Reeves told him of Dr. Carthy’s visit and of what he had done. She also gave Dr. O’Kelly a full account of her husband’s stomach attack the previous evening and of his earlier medical history. Having done so, she left Dr. O’Kelly with her husband in the bedroom. When Mrs. Reeves returned, she learned that Dr. O’Kelly had given her husband an injection. Dr. O’Kelly then said to her__ “I can find nothing wrong with him.” Mrs. Reeves expressed amazement and said that she would prefer to have her husband removed to hospital. Dr. O’Kelly said__ “Right. I will try to get him in somewhere.” At that stage the plaintiff was quite confused. Although advised by Dr. O’Kelly, the plaintiff refused to go to hospital and said that all he wanted was to sleep. Dr. O’Kelly said that he could do nothing about it, if the plaintiff refused. He wrote out a note of his examination, which he gave to Mrs. Reeves, and said__ “Leave him until lunchtime. If not better, then ring 999 and they will take him somewhere.”
Dr. O’Kelly’s medical notes indicated that the plaintiff’s complaint was “constant abdominal pain and vomiting (haematemesis) x 12 hours.” This indicates vomiting of blood. The record also shows that the clinical findings were “Abdomen general tenderness and guarding”, that the plaintiff suffered from tachycardia, that his temperature was normal but that his pulse rate was 160. The diagnosis at the end of the record was merely “abdominal pain plus vomiting? cause.” It also indicated that an injection of largactil had been administered.
Professor Neill, who was a consultant physician at St. James’s Hospital and who had examined and treated the plaintiff on his admission to hospital, was asked his view of the findings shown on this medical record of Dr. O’Kelly’s examination. Professor Neill said positively that those findings indicated a very sick man who could only be looked after in hospital. He said that the findings disclosed a diffuse irritation of the lining of the abdominal wall with a very fast pulse rate and indicated a markedly reduced blood pressure. With those clinical findings, he said that the administration of the drug largactil was not only wrong but was highly dangerous. He said that this was so because of its effect on the blood circulation. He said that, in the case of shock arising from the low blood pressure, the effect of largactil would be to prevent the body cutting off the blood supply to the arms and legs in order to protect the brain, the kidneys and the heart. Professor Neill indicated that this could make a stroke more likely. He said that, when he examined the plaintiff, although the plaintiff then had no blood pressure, his arms and legs, which should have been cold, were still warm. Professor Neill added that all doctors should know that, with an acutely ill patient, drugs should be used with care and that, in the case of largactil, the drug information sheet (contained in the box of ampoules) warns about giving it to a patient suffering from tachycardia.
Professor Neill’s evidence was supported by that of Professor James McCormack, who said that the clinical findings disclosed on Dr. O’Kelly’s notes indicated that an acute abdominal emergency was, if not certain, so probable that hospital admission was essential. He regarded Dr. O’Kelly’s efforts to get his patient into hospital as inadequate and not in accordance with what was required of him as a doctor in general practice.
Finally, one other portion of the evidence should be mentioned; it is relevant to the case against both Dr. Carthy and Dr. O’Kelly. Professor Neill was asked, having regard to his knowledge of the plaintiff’s condition on admission to hospital, to give his opinion of the progress of the plaintiff from the time of his attack on the evening of the 8th June down to his admission to hospital. He said that, in his opinion, the plaintiff had Crohn’s disease probably for some months, or even years. This affected the lower part of his small intestine. At some time on the 8th or 9th June, a perforation occurred and the contents of the small intestine leaked into the abdominal cavity. The degree of shock and generalised illness which Professor Neill observed, when the plaintiff was admitted to hospital, indicated that this perforation took place at least 12 hours before admission. He thought it probable, in the circumstances, that it had occurred when the plaintiff’s bout of pain and vomiting commenced at 8 p.m. on the 8th June. When it occurred, a leaking of fluid into the abdomen commenced. He was of the view that the plaintiff was suffering from the effects of this perforation, which had developed into peritonitis, at 3 a.m. when examined by Dr. Carthy. By the time he was seen by Dr. O’Kelly, the plaintiff’s blood pressure would have been very low and he would then have been developing shock. The clinical finding that he had abdominal guarding
indicated an inflammation of the peritoneum and indicated that every hour’s delay was a threat to the plaintiff’s life. However, instead of being rushed to hospital, he was then given largactil which dampened down the protective circulatory reflexes. The result was that the blood supply to the brain was reduced more than it should have been. By reason of this, taken in association with the fact that the plaintiff suffered from Crohn’s disease, he developed a stroke by reason of the fact that a small portion of the brain died.
That being the nature of the evidence adduced by the plaintiff in support of his claim against each defendant, I think it proper to consider at this stage what a jury, accepting such evidence, could fairly conclude. It is unnecessary to emphasise that much of this evidence was controverted and denied by the defendants but, as we are considering the propriety of the withdrawal of the case from the jury, it is, in the main, only necessary to consider what the plaintiff’s evidence, if accepted, could have established. If such evidence could establish a case of negligence against both defendants or either one of them, then the issue whether it did establish such a case should have been decided by a jury. In so deciding, the jury would consider all the evidence before them, both that adduced on behalf of the plaintiff and that adduced on behalf of the defendants.
On the evidence which I have outlined, it seems to me that a jury could arrive at the following conclusions__
1. On the 8th June, 1977, the plaintiff, who was suffering from an undiagnosed condition of Crohn’s disease, perforated from the small intestine into the abdominal cavity.
2. Over the ensuing hours this perforation continued to progress and, at 3 a.m. on the 9th June when seen by Dr. Carthy, the plaintiff was suffering from peritonitis.
3. This fact would have been apparent to any doctor who examined the plaintiff’s abdomen.
4. Dr. Carthy failed to carry out such an examination and, as a result, he failed to recognise the plaintiff as an acutely ill person who was in need of immediate hospitalisation.
5. The administration of the drug cyclomorph was, in the circumstances, contrary to accepted medical practice and dangerous because it could mask the plaintiff’s symptoms.
6. Peritonitis affects and lowers the blood supply and, as it persists, weakens the circulatory system. A period of circulatory weakness or hypotension lasting a number of hours involves the risk of a stroke occurring. The existence of such a risk should be known to any doctor attending a patient who exhibits symptoms of circulatory disorder.
7. When Dr. O’Kelly examined the plaintiff, the plaintiff was suffering from peritonitis with a fast, weak pulse or tachycardia; he was exhibiting signs of circulatory weakness and was developing shock. In these circumstances Dr. O’Kelly should have recognised his patient as being acutely ill and in danger of death and should have insisted on his immediate removal to hospital.
8. The administration by Dr. O’Kelly of the drug largactil was, in the circumstances, contrary to proper medical practice and was dangerous because it added to the process of circulatory collapse.
9. The plaintiff’s stroke was caused by circulatory weakness or hypotension lasting over a prolonged period.
On the basis that a jury could reach those conclusions, the question now to be considered is whether a case in negligence has been made out against the defendants, or either of them. To succeed in an action based on negligence it is necessary to establish a breach of that duty to take care which the law requires in the circumstances. It is also necessary to show that such breach of duty has resulted in damage. Carelessness without damage is not actionable; nor is a person who is in breach of duty liable for consequences which he could not reasonably have foreseen.
This is a claim against two doctors. Each of them owed a duty to take care when attending their patient, the plaintiff. This involved bringing to their attendance upon him the ordinary skill, care and diligence which could reasonably be expected of a general practitioner on a night call when visiting a sick patient. The skill of the consultant or the specialist could not be expected, but less than the minimum care and attention of the ordinary practitioner could be faulted. This entails, in my view, that each doctor was expected to apply his medical knowledge to his patient’s history and symptoms, to conduct a careful examination and seek to determine the nature of the illness, and to decide upon treatment. Neither could be blamed for an incorrect diagnosis arrived at after a careful examination, nor for the mere fact that the wrong treatment was given, or that in doing what was done there was a deviation from normal practice. If what a doctor did is called in question, to hold him negligent it must be e stablished that the course he adopted was one which no doctor in the given circumstances would have adopted had he been acting with ordinary care. The matter was put in the following way by Kingsmill Moore J. in Daniels v.Heskin 13 at p. 86 of the report__
“A doctor owes certain well recognised duties to his patient. He must possess such knowledge and skill as conforms to the recognised contemporary standards of his profession and, if he is a specialist, such further and particularised skill and knowledge as he holds himself out to possess. He must use such skill and knowledge to form an honest and considered judgment as to what course, what action, what treatment, is in the best interests of his patient. He must display proper care and attention in treating, or in arranging suitable treatment for, his patient. Any attempt to substitute a rule of law, or even a rule of thumb practice, for the individual judgment of a
qualified doctor, doing what he considers best for the particular patient, would be disastrous. There may be cases where the judgment of the physician is proved by subsequent events to have been wrong, but if it is honest and considered and if, in the circumstances known to him at the time, it can fairly be justified, he is not guilty of negligence. There may indeed be cases where the nature of the judgment formed or the advice given is such as to afford positive evidence that the physician has fallen short of the required standard of knowledge and skill, or that his judgment could not have been honest and considered, but it lies on the plaintiff to adduce evidence from which such a failure of duty can reasonably be inferred.”
In that case it was made clear that, when a doctor follows a general and approved practice in the situation with which he is faced, even if what he did turns out to have been wrong, he cannot be held to be negligent. However, it is important to remember that the existence of a general and approved practice may be one of the issues of fact to be decided by the judge or jury trying the case. As Mr. Justice Walsh said in O’Donovan v. Cork County Council 12 at pp. 193-4 of the report__
“Furthermore, if there be a dispute of fact as to whether or not a particular practice is a general and approved practice, it is a matter for the jury to determine whether or not the impugned treatment is general and approved practice. In such circumstances a jury would be told that if they find that there is such a general and approved practice they must acquit the practitioner where there is not the qualification which I have referred to above. If some witnesses say that a particular practice is a general and approved one and other medical witnesses deny that, then it is an issue of fact to be determined as any other issue of fact. This particular issue cannot be withdrawn from a jury merely because the practice finds support among some medical witnesses if there be others who deny the fact that it is general and approved practice.”
Applying these general considerations to this case and having regard to the conclusions which, on the evidence, were open to the jury, I am of the opinion that there was evidence that Dr. Carthy was negligent in failing to carry out an examination of the plaintiff’s abdomen. He was presented with a patient who was complaining of severe and prolonged stomach pains and who had vomited at an earlier stage the previous evening. His duty was to examine that patient and not merely to act on what the patient or the patient’s wife told him. I am further of the opinion that, had Dr. Carthy carried out such an examination, he would have become aware of the serious nature of the plaintiff’s illness and,
being so aware, could have taken steps for his immediate removal to hospital. The result of Dr. Carthy’s failure properly to examine his patient was that the plaintiff, while suffering from peritonitis, was left without the appropriate hospital treatment as his circulatory system continued to weaken and the consequent danger of a stroke became more real and apparent. I cannot see, and do not accept, that the fact that six hours later the plaintiff was examined by another doctor excuses Dr. Carthy’s apparent negligence in any way. Had Dr. Carthy not been in breach of his duty to the plaintiff, the probability is that the plaintiff would not have been exposed to the necessity of a second medical visit nor to the continuing exposure to the risk of a weakening circulatory system.
As to the injection of morphine, I am of the opinion that, in giving that injection, Dr. Carthy was also careless and did something which was medically wrong and potentially dangerous. I cannot find any evidence, however, that in fact any harm or damage resulted. The inherent danger was that this drug would mask the plaintiff’s symptoms at a later medical examination. It seems to me, however, that this did not happen, and that the plaintiff’s symptoms were sufficiently clear and definite at Dr. O’Kelly’s examination to warrant a correct diagnosis and appropriate action.
As to Dr. O’Kelly, I am also of the view that there was evidence that he was in breach of his duty to the plaintiff. He also was presented with a patient who had constant abdominal pains and who had vomited blood. He observed general tenderness and guarding of the abdomen and a condition of tachycardia with a fast and weak pulse rate of 160. On the medical evidence, this clearly indicated the danger of peritonitis and a serious circulatory upset. It seems to me that, in failing to recognise or diagnose that condition, Dr. O’Kelly failed to display the skill or care expected of him as a general practitioner in the circumstances. In addition, even if his failure to diagnose the true condition were excusable, the fact of his clinical findings should have indicated to him the urgent need for hospitalisation. As I have already indicated, a jury could fairly conclude on the evidence that, in relation to his advice with regard to immediate hospitalisation, Dr. O’Kelly failed to convey the sense of urgency which was warranted in the circumstances. Finally, I am of the view that the evidence would justify a finding that, in administering the drug largactil, Dr. O’Kelly was also at fault and negligent. It does not appear to me to be of relevance on this appeal that there were other opinions given on whether that drug ought to have been administered, or on its safety in the circumstances. In my view, it is sufficient to say on this appeal that the evidence adduced on behalf of the plaintiff to prove that its administration, in the circumstances, was contrary to proper and accepted practice, even when contradicted, raised an issue of fact proper to be decided by a jury.
Being satisfied, as I am, that there was evidence of negligence to go to the jury against both defendants, I have now to consider the ground upon which this case was withdrawn from the jury by the learned trial judge. He formed the view that even if some want of care or negligence could be established on the part of both defendants, or either one of them, the occurrence of a stroke as a consequence could not reasonably have been foreseen. In making the applications for a direction, on behalf of the respective defendants, both Mr. Liston and Mr. Sutton relied on the fact that the plaintiff had Crohn’s disease. This meant, they submitted, that he had a disposition to a stroke. While the defendants might have foreseen an abdominal perforation, they could not have foreseen the occurrence of a stroke as such was not a consequence of the perforation but of a perforation with Crohn’s disease. The learned trial judge seems to have accepted and adopted that submission. In my view, he was incorrect in doing so.
While undoubtedly Crohn’s disease was a factor, there was a considerable amount of evidence to the effect that, apart altogether from Crohn’s disease, the subjecting of a patient, even of the plaintiff’s age, to a prolonged period of hypotension carried with it the risk of a stroke. There was further evidence that the existence of such a risk would have been known to any doctor. In addition, there was clear evidence that untreated peritonitis leads to circulatory weakness and hypotension. From this it seems to me to follow that any doctor who fails, culpably, to diagnose a perforation must be taken as foreseeing that his failure to do so could lead to hypotension which, if prolonged, could in turn lead to a stroke. In my opinion, the fact that the patient had an additional predisposing medical condition is irrelevant. I appreciate that the administration of largactil by Dr. O’Kelly was, so far as Dr. Carthy is concerned, a complicating factor. However, in my view, a jury could well take the view on the evidence that the administration of that drug was merely an accelerating factor in the circulatory collapse which was inevitable as long as the plaintiff’s condition was not properly diagnosed and treated in hospital, and that for this both defendants could be held responsible.
On the evidence, I have come to the conclusion that, because the result of the defendants’ negligence was an untreated abdominal perforation, the inherent danger therein of a circulatory collapse and prolonged hypotension made the risk of a stroke foreseeable.
Even if the view which I have taken of the effect of the medical evidence be incorrect and if the most that can be said is that foreseeability was limited to the perforation which the plaintiff suffered, I do not see that this can assist the defendants. The stroke was directly caused by the fact that the plaintiff suffered an abdominal perforation which was not diagnosed or treated in time. That another person would not have suffered a stroke or that a doctor, being told of abdominal pains, would not think of the danger of a stroke, or that the plaintiff had Crohn’s disease, are irrelevant considerations to my mind. The failure to diagnose or treat a perforated abdominal cavity was capable of causing great harm to the person concerned, leading eventually to an abdominal catastrophe. The fact that the harm done to the plaintiff, who had Crohn’s
disease and a predisposition to a stroke, was more extensive and severe than might have been anticipated does not excuse the defendants. In my opinion this case, viewed in this light, is very similar to Burke v. John Paul & Co. Ltd. 2 In dealing with foreseeability on the facts of that case, Budd J. gave a judgment which was supported by the other members of the Court. He said at p. 282 of the report__
“There then remains the question of foreseeability. The test of foreseeability as adopted in Overseas Tankship (U.K.) Ltd. v. Morts Dock & Engineering Co. Ltd. (The Wagon Mound) 4 has been accepted in this Court (and indeed was accepted in the argument in this case) and I proceed on the basis that, in determining liability for the consequences of a tortious act of negligence, the test is whether the damage is of such a kind as a reasonable man should have foreseen.”
He went on to say (at p. 285) in relation to the facts of that case__
“. . . the test is not whether the defendants could reasonably have foreseen that a straining or tearing of the muscles would cause a hernia in this particular man, but the question is rather whether they could have reasonably foreseen the type of injury that he did suffer, namely, the tearing or straining of the muscles which resulted in the hernia. A reasonable jury could, in my view, certainly find on all the facts and circumstances of the case that the defendants ought to have anticipated that a man in the plaintiff’s position, being given a blunt instrument with which to cut steel bars, might, by reason of the unusual exertion he would be called upon to exercise, strain or injure his muscles; it is immaterial that the defendants could not anticipate the full extent of the damage.”
It seems to me that that reasoning applies in this case and that the defendants can properly be held liable for what this neglect, if such be established, brought about.
I wish to add that, in my review of the evidence in this case, I have been compelled to act on the evidence adduced by the plaintiff and to regard it as if it had been accepted by a jury. I must emphasise, however, that much of that evidence has been, and will be, controverted. I do not wish to indicate that I have formed any particular view that the defendants or either of them were at fault. Accordingly, for the reasons outlined in this judgment, I would allow this appeal and direct a new trial.
Martin v Millar & Co Ltd
(12 May 1972) SC
Walsh J: In this case the plaintiff, who was a wood working machinist, sued his employers, the defendants, for injuries he sustained in the working of a revolving cutter spindle which he was operating in the course of his employment. This was a wood working machine which was electrically driven and was stopped and started by a switch which turned on or off the electric power.
The plaintiff alleged that the defendants had been in breach of statutory duty (1) in failing to have the machine securely fenced, (2) in failing to warn the plaintiff of the danger of cleaning the machine while the cutters were in motion, and (3) in failing to provide sufficient and suitable lighting conditions during the operation of the machine. The case was tried before Mr Justice Henchy and a jury on the 3rd and 4th December I 968, and the jury found against the plaintiff on each of three matters referred to. Judgment was entered for the defendants and against this judgment the plaintiff has appealed. In my view, this appeal should be dismissed.
The accident in question occurred after the plaintiff had switched off the machine and when he was attempting to remove some wood shavings from it. I choose this version as the one most favourable to the plaintiff’s case because he has given other versions which at limes indicated that he was not sure whether he had or he had not switched it off or that he was not removing wood shavings but was wiping a piece of oil from the platform of the machine near the cutting blades while it was in motion. On the version which I accept as being the most favourable to the plaintiff for the purpose of this appeal the plaintiff was of opinion that possibly the blades continued to revolve after the current had been switched
off and he put his hand close to them too soon. It was alleged during the hearing on behalf
1,r the plaintiff that the dangerous part of the machine was not fenced. This is not correct as
I he evidence indicates that there was a form of guard which performed a double function, namely, by being spring-loaded it pressed the board which was to be grooved against the hack plate, holding it over the cutting edge and when the board was not there the effect of lhe springs in these rollers was to thrust the rollers forward so that they overhung the rutting edges. While there might be some question as to the adequacy of this fencing while I he machine was actually operating, that is to say, grooving timber, there can be little doubt
!hat when there was no timber in the machine, as there was not on this occasion, a person rould not bring his hand in contact with the revolving blades unless he put his hand in I here for some purpose. This is what happened in the present case and it seems clear on the l’vidence that the plaintiff came in contact with the blades by inserting his hand in a position where a board would normally go to be grooved. In the circumstances, in my view,
!he jury was perfectly justified on the evidence in holding that the defendants had not been 111 breach of statutory duty in failing to have the machine securely fenced. In the first place 11 was fenced to the degree I have described but, secondly, the defect or deficiency in the lcncing, if any, was not a causative factor in this accident. The immediate causative factor was the insertion by the plaintiff of his hand into the position of danger for a purpose other lhan that of the normal working of the machine.
On the second point, as to the question of the warning which the plaintiff ought to have received as to the danger of cleaning the machine while the cutters were in motion, the jury also answered in the negative. In my view, this was also justified on the evidence. The plaintiff had been employed on this machine for something over four years, was thoroughly familiar with the machine and before he ever started working on it had received instruction about the dangers of it. The object of such warning is, of course, to bring home to the operator the dangers which may arise and that knowledge, if it does not completely remove the danger, would certainly reduce it considerably by bringing home to the plaintiff what he has to avoid. In the present case there is ample evidence to indicate that the plaintiff was fully aware ofall the dangers of this machine and that what he did was apparently an act of forgetfulness, which, although it might not amount to negligence on his part, does not mean that because it occurred it must necessarily reflect negligence on the part of the defendants. The plaintiff very likely on the evidence overlooked the fact that the machine does not come to a stop instantly upon the disconnection of the current.
On the question of the adequacy or otherwise of the lighting there was really no evidence upon what was the condition of the lighting on the date of the accident. There was evidence upon which the jury could hold from the tests made by Mr Doherty, an expert called on behalf of the plaintiff, that the natural lighting on that occasion was probably bad. On the other hand the same expert stated that he had no difficulty in observing whether the machine was on or off. Furthermore he could not recollect whether there was artificial light on at the time of his test and there is no evidence whatever as to whether there was or there was not artificial light at the time of the accident. The plaintiff in the course of his evidence made no reference to the question of lighting. As the jury heard all the evidence on this point, in my view there was ample evidence to uphold their finding on the question oflighting either on the basis that it was not adequate or alternatively that the adequacy or otherwise of it was not a causative factor in this accident. In either event the plaintiff obviously failed.
For these reasons I am of opinion that the verdict of the jury cannot be disturbed and the appeal must be dismissed.
Crowley v Allied Irish Banks Ltd
[1987] IR 282 (SC)
Finlay CJ: This is an appeal brought by the third party against so much of the order of the High Court made on the 18th December 1985, as gave judgment against the third party in favour of the defendant for contribution amounting to 30 per cent in respect of the sum of£125,000 damages which the defendant was liable to pay to the plaintiff, together with the costs of the issue. The event out of which these proceedings arose was that the plaintiff who was then 16 years of age, on the 17th April 1980, while on the defendant’s bank premises situated at Bandon in the county of Cork, which was owned and occupied by them, fell from an unprotected flat roof and injured himself. As a result of this accident the plaintiff, who was then an infant, by his next friend instituted proceedings against the defendant claiming damages for personal injuries which it was alleged were due to the defendant’s negligence and breach of duty. The defendant in addition to denying its liability to the plaintiff obtained an order joining the third party and claiming contribution or full indemnity from them. By agreement between the parties it was ordered in the High Court that the issue of liability as between the plaintiff and the defendant should be tried by a judge sitting with a jury and that the third party should be entitled to participate in those proceedings. The same order further provided that the assessment of the damages suffered by the plaintiff should in the event of his obtaining a finding of liability against the defendant be assessed by the judge sitting without a jury and that in the same event the issue as between the defendant and the third party should be tried by the judge sitting without a jury. On the issues laid before the jury they found the defendant liable in negligence to the plaintiff and also found the plaintiff guilty of contributory negligence and apportioned fault between the plaintiff and the defendant as to 91 per cent against the defendant and 9 per cent against the plaintiff. Consequent upon those findings the claim of the plaintiff against the defendant was settled by the defendant without the approval or consent of the third party for a net sum of £125,000.
The learned trial judge who had presided at the hearing of the issue between the plaintiff and the defendant on negligence then tried the issue between the defendant and the third party, having regard to evidence which had previously been given in the trial with a jury and to evidence adduced on the issue. He made a finding that the third party was guilty of negligence and was a concurrent wrongdoer with the defendants and apportioned fault as to 70% against the defendant and 30% against the third party.
From the evidence it is clear that the premises in question were an extended or renovated bank premises situated in the town of Bandon. At the rear and relevant to the issues arising in this case were two roofs. One was a roof giving access to the residential portion of the bank premises which was reached by a concrete stairway from the garden at the rear thereof. This roof which was clearly intended, as found by the learned trial judge, for use not only as an access to the residential portion of the premises, but also aswith regard to the potential liability of a third party in circumstances such as these is, in my view, correctly stated in the decision of this court in Conole v Redbank Oyster Co [1976] IR 191 in the judgment of Henchy J where, dealing with the alleged liability to contribute of a firm named Fairway, who had, on the evidence constructed an unseaworthy boat, he said at p 196 as follows:
“Assuming that Fairway were negligent in sending forth an unseaworthy boat, reliance on this negligence must, on the authorities, be confined to those whom Fairway ought reasonably to have foreseen as likely to be injured by it. Furthermore, the negligence must be such as to have caused a defect which was unknown to such persons. If the defect becomes patent to the person ultimately injured and he chooses to ignore it, or to an intermediate handler who ignores it and subjects the person ultimately injured to that
tests which, in turn, would have shown up the defective structure. There was thus no patent defect which was known or ought to have been known to the GAA. He held that the builder was 80% at fault and the GAA 20%.
There can be no doubt on all the evidence in this case that the servants or agents of the defendant, prior to the happening of this accident were completely and fully aware of the danger of permitting boys to play upon this unguarded roof and that, in the words of the extract which I have just read from the judgment of Henchy J, they ignored that danger and, by permitting the continuation of the playing by the boys upon the unguarded roof, subjected them to the risk which caused this accident. In these circumstances, I am satisfied that the third party is entitled to succeed on the first ground argued on its behalf in this appeal. Having reached that decision it is unnecessary for me to reach any conclusion and I express no view on issues raised in this case concerning in particular the provision of ss 21, 22 and 29 of the Civil Liability Act 1961, which may fall to be decided in some other case. I would accordingly allow this appeal, set aside the order made on the issue between the defendant and the third party and substitute therefore an order dismissing the claim of the defendant against the third party.
Walsh, Henchy, Hederman and Barr JJ concurred.
Millington v Taylor (t/a the Big Tree Public House)
(17 July 2002) CC, Dublin
Judge McMahon: The plaintiff had been employed as a full-time bar-woman for eight nnd a half years by the first defendant when the events the subject matter of these proceedings took place. On Tuesday, 9th February 1999, at approximately lp.m, the plaintiff was passing back from the lounge to the bar of the public house, when she looked out the door leading into a store room staff quarters (“the store room”) behind the har. At the other end of this store room another door opened out onto the car-park and, as his was open at the time, the plaintiff had a clear view onto the car-park. On looking out she saw a youth loading two cases oflong-necked bottles of Budweiser into the booth of lu:r own car. As she wondered what was going on, another employee, Mr Leo Capper ( “the yardman”), passed between her and the youth. This employee was wheeling a rubbish bin out towards the front of the premises. The plaintiff then walked across the store room, through the outer door and challenged the youth in the yard. Caught in the act, the youth jumped into the plaintiff’s car, locked the doors from inside, and began to reverse the car back from the wall against which it was parked. As the car moved backwards the plaintiff lay across the bonnet and clung on. The youth changed gear and as he drove out the gate towards the public road the plaintiff fell off and was injured. The youth made good his escape and was never apprehended. The plaintiff sued her employer and also sued the second defendant, the Motor Insurers Bureau of Ireland, claiming that the Bureau was obliged to compensate the plaintiff under clause 6 of the Motor Insurers’ Bureau of Ireland Compensation of Uninsured Road Accident Victims
1988.
The case against the first defendant
Before addressing the liability of the first defendant, I should address some conflicts of evidence in the versions of events given by the plaintiff and Mr Capper, the yardman, as lo what happened in the yard that day. Mr Capper in his evidence said as he was wheeling out the rubbish he saw the youth loading up the beer into the plaintiff’s car which he recognised. He said that any concerns he had were allayed by the fact that the plaintiff was standing at the outside door looking on. He assumed that the youth was acting on the plaintiff’s instructions and he continued on wheeling the rubbish bin out of lhc car-park. He said he clearly saw the plaintiff’s face and she appeared not to be concerned. He also said she did not call for assistance. I should hasten to say that neither defendant suggested during the trial that there was any collusion between the plaintiff and the youth who clearly was a stranger to all concerned and was never identified
traced. The plaintiff’s version is that she saw Mr Capper pass while she was looking out from the inside door through the staff quarters and through the outside door. She also said she did call for assistance and that help did come, but not in time, from a shop across the road from the car-park entrance.
Nothing much turns on this conflict of evidence, but in so far as it is relevant I find that when Mr Capper saw the plaintiff, she was still within the building, moving perhaps out towards the outer door, but not realising fully what was going on with the youth in the yard. When she called out Mr Capper had already passed on towards the front of the premises out of earshot. When Mr Capper returned from the front of the premises some two minutes later he found there was pandemonium in the yard.
The first defendant
The duty of care which an employer owes to his employee is that he is bound to take reasonable care for the safety and welfare of his employee. The plaintiff complains in this case that the system of work was unsafe in that there were insufficient employees to run the premises and that the security system on the yard door was inadequate.
At the outset it must be noted that it was clearly appreciated by the employers in this case that the back door entrance from the car park represented a security risk. There was evidence from a Mr Savage, a former employee, which I accept, that when he worked there he expressed concern that he was left on his own a lot of the time and that the door to the car park would sometimes be left open. Employees exiting through this door, because the door could not be closed from the outside, were obliged to alert the employees inside the bar that the door had to be shut behind them. The method devised by the employer was to locate a bell near the exit which was to be rung by the exiting employee. On hearing this, the employee inside was to attend and lock the door from within. It was also acknowledged by all who gave evidence that frequently, the departing employee would merely call out to the employees in the bar that they were departing and alerting them to attend to the door. This latter method, “the shout method”, might be the only method available where, for example, the departing employee was carrying something and did not have a free hand. The day in question Mr Capper, the yardman, had exited earlier and called back into the building that the door should be shut behind him. He did not give evidence that there was any acknowledgement from any one inside that he had been heard. The plaintiff, the only other employee on duty at the time, did not hear any call and the door was left ajar for some time. The unidentified youth as a result had ample opportunity to enter the premises, and steal the plaintiff’s handbag which was hanging up in the usual place reserved for coats and other gear.
The “bell or call” system, if I might describe it thus, was the system adopted by the employer to address the risk that an open door represented to the security of the premises and the safety of the staff. If this door was not kept closed securely the employees’ goods and chattels were exposed, as was the employer’s own stock. Further, if it was not closed it could provide an easy entry for an intruder with criminal intent, whether it was to rob or to rape, to the premises which presumably, from time to time, carried substantial amounts of cash. A reasonable employer would clearly want to secure this entrance and would want to devise a system which was reasonably safe in the circumstances.
In my view, the lock on the door, and the method of “bell or call” was insufficient to achieve these objectives. Clearly, when it was admitted that on many occasions employees did not use the bell, but called back instead, its efficacy depended on being heard. The likelihood of not being heard increased when there was only one person in charge, as happened frequently, especially in the earlier part of the day when custom was light. The risk of not being heard also increased when only one bar-person was on duty,us in such circumstances, that person was also responsible for looking after the lounge, where there was a pool table, as well as tending the bar. There was also evidence, not rnntradicted by the first defendant, that sometimes the bar person had to leave the bar, go through the store room, into the car-park, open another gate, enter a cold room to tap a keg. When this was necessary, the whole procedure had to be done in reverse on the return trip, a process which could take up to five minutes. If the bbar person was alone when this requirement had to be executed the relevant door would be unattended for that length of time.
Considering that a simple lock on the outer door, which could be opened from the outside with a key, or fitting a combination lock, would have solved the problem and reduced the relevant risk for a nominal cost, it was, in my view, negligent for the employer not to do so. The employer was clearly aware of the risk, and to my mind did not adequately address the security issue.
The risk which was recognised was the risk which materialised. The door was left open, the system failed to alert the plaintiff and an unauthorised intruder gained access. The risk also contemplated that the intruder might not be an honest person – if only honest persons were expected there would be no need for any locks – and that he might take whatever advantage offered itself to him. In the present case he was offered a handbag, a mobile-phone, and the plaintiff’s car keys. There were also crates of beer available. The thief proceeded to maximise his opportunity; no more than any “respectable” thief would do. He took what he wanted from the handbag and then began to unload some beer into the car which was now at his disposal. Once the thief was in, was not this what we would expect him to do? If the cat gets in, should we be surprised that he will drink the milk? Up to this point, in my view, what he did was not only foreseeable, it was predictable.
What happened next? The plaintiff spotted the thief and called on him. The thief knew that the game was up and, again predictably, the intruder decided to make his getaway in the car he was planning to take anyway. Because of the early detection he had to speed up his getaway. He had to prevent the plaintiff’s efforts to get into the car and when she lay across the bonnet as he was reversing he did not hesitate to drive off to complete his escape. Nothing very unpredictable once the thief gained entry and started his criminal activity.
It may be true that the exact sequence of events could not have been predicted, but once the risk of entry materialised it was the very “kind of thing” that might reasonably be expected to happen.
In my view, it does not lie in the employer’s mouth to say that the events that followed were not reasonably foreseeable and that the employer had no duty of care in respect of the damage that occurred to the plaintiff. Put another way, it is my view that the damage caused to the plaintiff by the employer’s breach of duty was not too remote.
Both the first and second defendants also advance the argument that they should not be liable in any event because of the plaintiff’s own foolish conduct once she detected the thief. The first defendant argued that in the circumstances, the plaintiff’s own conduct amounted to a novus actus interveniens which relieved the employer of any duty of care he might have had, and in addition, the second defendant advanced the argument that the plaintiff’s conduct brought her within the defence of volenti non fit iniuria.
With regard to the volenti defence, I should say that this defence has no application to the present case. The common law form of this defence was abolished bys 34(l)(b) of the Civil Liability Act 1961, and its limited application nowadays can be seen from the decision of the Supreme Court in O’Hanlon v ESB [1969] IR 75. In the present case, fit had any relevance, which it does not (as I explain below), it could only be considered in
the context of assessing whether the plaintiff’s conduct amounted to contributory negligence.
As to whether the plaintiff’s conduct amounted to a novus actus interveniens, in the sense that it broke the causative chain back to the employer’s negligence, or was of such a kind as to hijack the causative element of the event, I am equally unimpressed. Once the plaintiff saw the thief loading her employer’s property into her car, she was entitled to challenge the thief. It may have been imprudent for her to do so in the circumstances. She may have been exposing herself to injury if the thief hit out at her. Instead the thief tried to make good his escape. He got into the car, he pressed on the handle as the plaintiff tried to open the door and he reversed the car away from the wall where it had been parked. The plaintiff said as the car reversed past her, the bonnet presented itself and she lay on top of it with little regard for her own safety. In direct evidence she said: “The man had his elbow on the door lock. He reversed into me. It happened so quick. I said I have to stop him”. And in cross examination she described her response as her “gut reaction”, and said that she acted in the heat of the moment, thinking that the thief would panic.
What the plaintiff did may have been imprudent in hindsight, but it was a genuine effort to stop the thief making off with her car and the employers’ property. She acted in the agony of the moment, but at the time it was not an unreasonable attempt to prevent a crime and apprehend a criminal. It was not, in my view, conduct which relieves the employer from his failure to secure the premises and protect the plaintiff from the risk. If a bank clerk in an effort to spoil a bank robbery, goes for the alarm button and invites a blow from the robber, is he or she to be penalised, by holding that the clerk was the author of his or her own misfortune? To be so characterised, or to amount to contributory negligence, the conduct would have to be very foolhardy indeed. In the circumstances that arose here, I am not prepared to find any fault with the conduct of the plaintiff.
Neither can the thief’s action be considered as a novus actus interveniens in the present circumstances. This case is clearly distinguishable from Breslin v Corcoran and the Motor Insurers Bureau of Ireland (17 July 2001, unreported) HC, a case opened to me, where Butler J held that a person who left the car keys in the iguition was not liable when the car was stolen and the thief injured the plaintiff when driving the stolen vehicle. Butler J, rightly in my view, held that the thief’s act amounted to a novus actus interveniens which relieved the owner of responsibility. He said the only circumstances he would hold the owner liable would be if there was strong evidence that the vehicle was left in an area where people routinely stole cars and drove them recklessly. In the present case before this court, the employer knew there was a risk of intruders. In addressing this risk he installed a system which proved to be inadequate, and patently so, if a moment’s thought was given to the locking mechanism at the rear door. He had a duty to prevent the risk arising in the first place. Our case is about the extent and content of the employers’ duty of care, and it is not properly analysed in terms of causation at all.
In Cunningham v MacGrath Bros [1964] IR 209, the defendants were engaged to do some work to a shop front in Grafton Street. Unattended ladders which were being used for the job were causing a nuisance and were removed by an unknown third party to a less obvious location where they fell and injured the plaintiff. McMahon and Binchy (Law of Torts, 3rd edn), commenting on the court’s decision to impose liability on the owners of the ladders, make the following statement:
“In truth, no question of proximate cause or novus actus entered into the Court’s decision inasmuch as the risk of a third party acting in the manner in which he did was the very thing which the defendants were under a duty to take precautions to avoid. The case merely demonstrates that in certain circumstances the defendant may be under an
obligation as part of his original duty to take precautions to protect the plaintiff from the negligent or, indeed, in some cases, even the intentional acts of third parties.” (Law of Torts (Butterworths, 3rd edn, 2000) p 75).
In Stansbie v Troman [1948] 2 KB 48, a householder instructed a house painter that he was to close the door if he left the house. Liability was imposed on the house painter when, having failed to close the door, an intruder entered and stole some jewellery. The I heft was, in the circumstances, the very thing which the painter was under a duty to take precautions against. In such a case according to Prosser and Keeton, the question “is essentially one of the defendant’s original obligation, and far removed from causation.” (Prosser and Keeton on the Law of Torts (5th edn, 1984) p 305. Cited by McMahon and
Binchy, p 75.)
Conclusion
The duty of the employer is to establish a safe system and a safe place of work and in lhis case this translated into an obligation to maintain a proper locking mechanism at the rear door which would eliminate or minimise the risk arising from unwanted intruders. The employer was in breach of his duty in this regard and consequently is liable for all reasonably foreseeable consequences of his negligence. The plaintiff’s conduct was not a 11ovus actus interveniens and did not amount to contributory negligence. The plaintiff does not have to show that the exact sequence of events was foreseeable; it is sufficient if she shows that, if the event takes place and the risk materialises, some dire consequences of an unspecified nature may reasonably be expected to unfold. Her efforts in accosting the thief were not such as to attract condemnation by this court.
The second defendant
Clause 6 of the Motor Insurers’ Bureau of Ireland Compensation of Universal Road Accident Victims Agreement 1988 reads as follows:
“In the case of an accident occurring on or after the 31st day of December, 1998, the liability of the MIB of I shall extend to the payment of compensation for personal injury or death of any person caused by the negligent driving of a vehicle in a public place, where the owner or user of the vehicle remains unidentified or untraced.”
Counsel for the second defendant makes three arguments against liability being imposed
in this case. He states:
(I) there was no “accident” in the present a case;
(2) liability under clause 6 only arises where there has been “negligent driving”, which was not the case here;
(3) the plaintiff was the author of her own misfortune.
With regard to the last argument, that the plaintiff was the sole cause, or was the author of her own misfortune, or consented in the sense ofvolenti, I have already given my view on this in so far as it was raised by the first defendant. I reject these arguments here also. In relation to the first argument, the word “accident” as used in Clause 6 of the 1988 Agreement is not a term of art. To ascribe to it an artificial restrictive meaning is not justified. It is a loose word which, in the context of the clause could be substituted by the word “incident” or “event”, and to construe it otherwise would be to give it a wholly
artificial and restricted meaning which is not warranted in this context.
Finally, the second defendant argues that Clause 6 restricts the Motor Insurance Bureau’s liability to “negligent driving”. I accept that this restriction does apply, but, in my view, the thief’s driving here in this case comes within the meaning of the phrase.
m the evidence before the court, I am entitled to infer that when the thief got into the car he was mainly concerned with making good his escape. His main purpose was not to injure the plaintiff. It is true he showed little concern for the plaintiff, and may have been reckless in his driving, but in civil law recklessness is a type of negligence and, we should be careful not to import from the criminal law a meaning which does not sit easily with our notions of liability in the civil context. I agree that the MIB of I would not be liable under Clause 6 if the thief intentionally rammed the car into the plaintiff. Such an intentional act would amount to a deliberate trespass and certainly might not be described as negligent driving and clearly would not be covered by the phrase. Here,however, the thief, I assume would have preferred if the plaintiff had stood back and allowed him go unhindered. The last thing he wanted was confrontation at that juncture. His motive was to get away as quickly as possible and, if the plaintiff was injured by his driving in his escape, he was willing to accept that risk. This is a good deal short of saying that he intentionally injured the plaintiff. In my view, it comes within the term “negligent driving” as used in Clause 6 of the agreement.
The question of the liability of the Motor Insurance Bureau in the present case is academic, however, since any liability the Motor Insurance Bureau may have only arises under the Agreement if there is no other defendant liable to the plaintiff. Since I have already found the first defendant is liable, the possible liability of the Motor Insurance Bureau does not arise. This was conceded by counsel for the first defendant and accordingly, I do not have to address the matter further. It is worth noting, however, that since any liability the Motor Insurance Bureau may have in such a case arises out of the 1988 Agreement, the Motor Insurance Bureau cannot be a concurrent wrongdoer within the meaning of section 11(1) of the Civil Liability Act 1961, since its liability is not based on any notion of wrongdoing. Further, since its liability is residual only, no question of apportionment can ever arise.
Conole v Redbank Oyster Restaurant Company Limited
[1976] I.R. 191
O’Higgins CJ
The plaintiff’s daughter was one of nine young people who were drowned when the defendants’ boat capsized in the sea off New Quay, County Clare, on Sunday the 29th June, 1969. It was a new boat which had been specially constructed by the third party (Fairway) for the defendants. The defendants were going to use the boat for dredging oysters. The fourth party were involved in the contract for the building of the boat because, as they were giving a grant to the defendants, they required the boat to be built to their satisfaction.
The plaintiff’s claim against the defendants for damages resulting from the death of his daughter through the defendants’ negligence was setttled for £1,000 and £666 costs. A separate issue then came before Pringle J. on third-party procedure to determine whether the defendants were entitled to an indemnity or contribution against Fairway and, if so, whether they were entitled to an indemnity or contribution against the fourth party. Mr. Justice Pringle held that the circumstances did not warrant any contribution or indemnity. The fourth party is not involved in this appeal which is confined to the question whether Pringle J. was correct in holding that Fairway were not bound to make any indemnity or contribution on the ground that they were not a “concurrent wrongdoer” for the purposes of s. 21 of the Civil Liability Act, 1961.
Let us first proceed on the hypothesis that Fairway, through want of reasonable care, sent forth a boat with a propensity to ship water and sink which the defendants could not have been reasonably expected to discover in time to avoid the consequences. Of course, Fairway would be liable if the accident had happened in those circumstances. Those drowned in the accident would have come within the range of people whom Fairway should have foreseen as likely to suffer injury because of their carelessness in putting into circulation a boat with such a defect. They might not be solely and totally liableif, for example, the defendants were also wanting in reasonable care through allowing too many people to travel on the boat but, on the authority of cases such as Donoghue v. Stevenson 17. they could not escape liability in one degree or another.
Consider, however, what actually happened in this case after the boat had been delivered to the defendants. They took her to sea on a few trial runs and, while it was observed that she took water in through the freeing ports, she did not ship water to an extent that could not be cleared by the use of a pump. On the day of the fatal accident, when the ceremony of naming and blessing the vessel took place, she was taken out on six trips the sixth being the fatal one. On the fifth trip, Mr. Hugman (the manager of the defendant company) was at the controls and he had on board with him five people, including the second defendant and some members of his family. This was a speed and manoeuvrability trial. Mr. Hugman manoeuvred the vessel at half speed and then at full speed; the result was nearly a disaster. Water poured on to the deck in such quantities through the freeing ports, particularly when the vessel did a sharp turn, that the pumps could not clear the water from the deckno matter how hard they were worked. The second defendant was frightened and he ordered Mr. Hugman to slow down and return to harbour. When they landed, the second defendant told Mr. Hugman to tie up the boat and to come into the company’s office to take part in the festivities that were going on there in connection with the naming and blessing ceremony.
The fact of the vessel’s unseaworthiness had been brought fully home to the second defendant by his frightening experience. In telling Mr. Hugman to tie up the boat the second defendant, in effect, was announcing that the boat was now out of commission because she had proved to be unseaworthy and dangerous. He said in evidence that, if he had known that she was going to be used again, he would have forbidden it. His response to his alarming experience of the boat’s propensity to become waterlogged, with only six people aboard, is summed up in the answer he gave to one question put to him in cross-examination:
“Q.If you knew the boat was going to go out again after your trip, you would have forbidden it?
A.I told Mr. Hugman to tie up the boat for the night. I knew that boat was very dangerous. I believe, my lord, that boat was absolutely unseaworthy.”
Mr. Hugman’s knowledge that the boat was dangerous must be deemed to have been no less than that of the second defendant. In the circumstances it was clearly the duty of the defendants to see that the boat did not put to sea again with passengers. But, mark what did happen. Within an hour of the earlier harrowing experience, and despite the second defendant’s order to tie up the boat for the night, Mr. Hugman unaccountably agreed to take some local boys and girls out for a pleasure trip on her. That was not all; he allowed some fifty of them to come aboard. The boat was thus dangerously overloaded with a moving cargo of unsupervised young people. Inevitably, as the experience on the previous trip should have foretold, the deck was soon deeply awash. The pumps were not properly manned. The children panicked and the boat capsized. A number of the children, including the plaintiff’s daughter, were drowned. It was a tragic and avoidable accident.
It goes without question that the defendants were negligent. They should not have taken the boat out once they knew it was unseaworthy, and they made matters worse by allowing too many people aboard. However, the sole issue now is whether the defendants are entitled to an indemnity or contribution from Fairway on the ground that the accident was caused or contributed to by Fairway.
Assuming that Fairway were negligent in sending forth an unseaworthy boat, reliance on this negligence must, on the authorities, be confined to those whom Fairway ought reasonably to have foreseen as likely to be injured by it. Furthermore, the negligence must be such as to have caused a defect which was unknown to such persons. If the defect becomes patent to the person ultimately injured and he chooses to ignore it, or to an intermediate handler who ignores it and subjects the person ultimately injured to that known risk, the person who originally put forth the article is not liable to the person injured. In such circumstances the nexus of cause and effect, in terms of the law of tort, has been sundered as far as the injured person is concerned.
When the defendants discovered that the boat was unseaworthy and, nevertheless, proceeded to put to sea with passengers aboard, the defendants in effect decided to supplant Fairway as tortfeasor in the event of an accident. Leaving aside the added factor of taking too many passengers on board, the mere circumstances that the defendants put to sea at all with passengers when they knew the boat to be dangerously unseaworthy meant that the defendants were consciously undertaking the primary responsibility if an accident happened, and that Fairway were being relegated to an area of remoteness within which responsibility in negligence does not operate. Of course, the defendants are entitled to say that there would have been no accident if Fairway had not been in default in supplying an unseaworthy boat. If the defendants are correct in that assertion, it is merely something they can put forward to support a complaint by them that Fairway were in breach of the contract between the defendants and Fairway. However, as far as the negligence that resulted in the drownings is concerned, any such default by Fairway would have been merely acausa sine qua non and not a causa causans.
In terms of legal causation, there was only one act of negligence in this case: it was the defendants’ act of putting to sea in a boat which they knew to be unseaworthy and which was overloaded with unsupervised young people. Once the defendants are shown to have been aware of the danger involved in that act, they are no more entitled to shed any part of their responsibility on to Fairway, on the ground that Fairway supplied an unseaworthy boat, than they would be entitled to saddle another person with part of the liability if the unseaworthiness of which they had knowledge had been caused by an earlier act done by that other person, e.g., a negligent collision or a malicious injury caused by him.
The direct and proximate cause of this accident was the decision of the defendants, acting through Mr. Hugman, to put to sea with passengers when they had a clear warning that the boat was unfit for the task. The defendants were the sole initiators of the causative negligence. Because that negligence derives from the defendants’ knowledge of the risk to which the passengers were being subjected, the plaintiff could not have joined Fairway as defendants successfully. It follows for the same reason, since Fairway cannot rank as a concurrent wrongdoer, that the defendants are not entitled to transfer to Fairway any part of their liability in negligence to the plaintiff. I would dismiss the appeal.
Connolly v. South of Ireland Asphalt
[1977] I.R. 99
O’Higgins C.J. S.C.
While travelling on his motor-cycle along Monastery Road, Clondalkin, on the night of the 21st January, 1973, the late Jonathan Wade fell off his machine on to the roadway and was run into and killed by a motor vehicle owned and driven by the defendant. His fall from the motor-cycle occurred immediately opposite the entrance to premises owned by the third party and used by them for the purpose of their business. The roadway where he fell and the entrance to the third party’s premises immediately beside it were broken into several pot-holes and were covered by ice. Proceedings were taken in the High Court by the widow of the late Jonathan Wade against the defendant claiming damages by reason of his death. These proceedings were compromised between the parties on terms which recognised that the late Jonathan Wade had been guilty of a degree of contributory negligence and the settlement was approved by the High Court; no question arises in relation thereto.
Under the provisions of the Civil Liability Act, 1961, the defendant claimed a contribution from the third party and, after the settlement of the plaintiff’s claim, the defendant’s claim for a contribution was heard by Mr. Justice Murnaghan sitting without a jury. Mr. Justice Murnaghan decided that the defendant was not entitled to claim a contribution from the third party, and an appeal has been brought by the defendant to this Court against that decision. The defendant claims to be entitled to a contribution from the third party under the provisions6 of s. 21, sub-s. 1, of the Act of 1961. The application of that sub-section to this case and to the defendant’s claim against the third party involves a consideration of whether the third party can be said to be “liable in respect of the same damage” in the same way as the defendant was liable. The “damage”here is the loss of the life of the late Jonathan Wade and “liable” means, in the circumstances, legally liable to the plaintiff.
Is the third party liable in respect of this death in the same manner as the defendant was? Put in another way, the question is whether the plaintiff, while conceding contributory negligence on the part of her husband, could succeed in an action brought against the third party alone in recovering damages for his deathsuch damages being reduced only on account of the contributory negligence of the plaintiff’s husband. Could such an action have succeeded if the plaintiff had brought it, let us suppose, because the identity of the motorist who had collided with her husband had never been discovered? The answer to this question must be considered in the light of the evidence adduced before the learned trial judge and the facts as found by him on such evidence. Let us examine these facts.
It appears that the third party’s premises in Monastery Road, Clondalkin, were situated on the left-hand side as one travelled from the Naas Road towards Clondalkin. This was the direction in which the plaintiff’s husband was travelling. These premises were approached from the roadway by an entrance which was some 50 yards wide and which narrowed to a gateway set some distance back from the road. The third party’s business entailed the constant use of large lorries, both laden and unladen, which travelled to and from these premises over this entrance and the roadway immediately adjoining. As a result of this traffic of heavy lorries, portion of this entrance and the immediately adjoining roadway was damaged in such a manner that a line of pot-holes appeared on the Dublin (or Naas Road) side of the entrance to the third party’s premises. These pot-holes or breaks had appeared on numerous occasions prior to the fatality; in wet weather they became filled with rain water which was splashed around by the wheels of passing vehicles.
On the night of the accident rain water, so splashed, had turned into ice by reason of a heavy frost, and an icy patch from one to two feet in width extended from the edge of the entrance out on to the roadway in the immediate vicinity of this line of pot-holes. Therefore, on the night of the accident the position was that anyone travelling on this road towards Clondalkin would be using a road which, in the vicinity of the third party’s premises, was broken along its left edge into a line of seven pot-holes, and which was covered at that place with a sheet of ice from one to two feet in width and extending out on to the roadway. It appears from the evidence that some of the pot-holes were covered with ice while others contained broken ice. In that condition it seems obvious that this portion of the road was unsafe and dangerous in certain circumstances. Perhaps it was not dangerous for a motorist, or in daylight, but very probably it was dangerous for a motor cyclist or for a pedal cyclist who travelled thereon at night not observing either the holes or the ice. It seems reasonably foreseeable that such a cyclist could very easily over-balance or fall if a wheel of his bicycle skidded on the ice or entered one of the holes.
In his very careful analysis of the evidence, this is what the learned trial judge found had happened to the plaintiff’s husband. The judge found that the deceased over-balanced and fell on to the roadway as a result of coming in contact with this danger on the road. The judge’s finding in this respect is amply supported both by the evidence of the three Gardaà officers in the patrol car which was stationary opposite the scene of the accident, and by the condition of the roadway and the proper inference to be drawn therefrom. While he was on the roadway and occupied in picking himself up and recovering his bicycle, the plaintiff’s husband was driven into and killed by the defendant’s vehicle which approached the plaintiff’s husband from the direction from which he had travelled. The learned trial judge rejected, as he was fully entitled to do, the defendant’s explanation of his failure to avoid colliding with the deceased as being due to his vehicle skidding on the icy patch on the roadway. The learned judge concluded that the defendant was not keeping a proper look-out and that he failed to see the deceased ahead of him on the road as he ought to have done. On the judge’s findings which, of course, I accept, the collision between the defendant’s vehicle and the deceased was not due to the condition of the roadway but to the defendant’s own negligence.
These facts, as found by the learned trial judge, seem to me to establish negligence on the part of the deceased (which was not in issue) and on the part of the defendant, in the absence of either of which there would have been no fatality and no damage. These facts also establish that, despite the existence of this negligence in the case of either or both, there would have been no fatality and no damage had the roadway not been dangerous and had not the condition of the roadway caused the deceased to fall from his motor-cycle.
It is on these facts that the question of the third party’s possible liability to the plaintiff ought to be considered. In the statement of his claim against the third party, the defendant alleged a liability both in nuisance and in negligence. It seems to me appropriate that the question should be considered under each of these headings.
It has been said that actionable nuisance is incapable of exact definition. The term nuisance contemplates an act or omission which amounts to an unreasonable interference with, disturbance of, or annoyance to another person in the exercise of his rights. If the rights so interfered with belong to the person as a member of the public, the act or omission is a public nuisance. If these rights relate to the ownership or occupation of land, or of some easement, profit, or other right enjoyed in connection with land, then the acts or omissions amount to a private nuisance. In this case we are concerned with the allegation that the third party were guilty of causing a public nuisance.
The third party used heavy lorries for the purpose of their business and the lorries travelled, laden and unladen, to and from the premises of the third party over the junction of the entrance with the roadway. This, in itself, was a lawful exercise of the third party’s right to carry on their business and to use for that purpose lorries of their own choosing. However, what the third party did resulted in damage to the roadway upon which these lorries travelled; the damage was caused at the point where the entrance joined the public road on the Dublin side of the third party’s premises. It was clear that at this point the lorries used could not be supported by the road surface, either because of their weight or their number. The, result was that breaks and holes appeared, not rarely, but on numerous occasions. Were the third party entitled to carry on regardless of the damage so caused merely because of their proprietary rights? Sic utere tuo ut alienum non laedas is a maxim which expresses the view that people should have regard to the rights and conveniences of others in the way they use what is theirs. While it may lack preciseness, it has here a sufficient application to prescribe a limit to what it was permissible for the third party to do in pursuance of their legitimate business interests. In my view the third party were not entitled to exercise their rights without regard to whether damage was being or would be caused to the public road.
Damage was caused not only to the third party’s own entrance but also to the roadway, and this consisted of the seven holes already described. In my view the question is whether this damage, so caused, constituted a danger to members of the public using the roadway. That the breaks or holes initiated on the third party’s own property appears to me to be immaterial. It is well established that an excavation or interference with one’s own land can be regarded as actionable where the land is so adjacent to the roadway as to constitute a danger to a person who, while using that roadway, turns into or travels thereon and thereby suffers damage: Barnes v. Ward 7; Hardcastle v. South Yorkshire Railway 8; Carshalton U.D.C. v. Burrage. 9
Here the damage to the road surface extended from the third party’s premises out on to the roadway itself. That this damage could constitute a danger to a person using a motor-cycle on that roadway at night is, in my view, not open to question. Once the holes appeared it was to be expected that in wet weather they would retain water which in turn would be splashed by passing traffic. In winter time this led inevitably to the added hazard of an icy patch being formed contiguous to the line of pot-holes. The learned trial judge was satisfied on the evidence that either the pot-holes or one or more of them or this ice caused the deceased to get into difficulties on his cycle and to fall. This in my view is a finding that the deceased’s fall was caused by the danger on the roadway created by the acts and omissions of the third party.
The deceased, having been caused to fall on the public road, was struck and killed by the defendant’s passing car. Not only was he killed because he had fallen in the path of an approaching car but, in my view, the likelihood of such a misfortune happening to him was present from the very moment he was caused to fall.
In my view, the result is that the third party, having so damaged the surface of their own entrance and the adjoining roadway as to create a danger on the roadway, were guilty of committing a public nuisance thereon. The plaintiff, being the widow of the deceased, suffered particular damage because of this nuisance in that it was a factor contributing to his death. On this account she could have maintained an action against the third party in respect of the damage she suffered.
With regard to negligence very little need be said. The third party’s operations caused breaks in the road surface and these breaks were left unrepaired. This was no sudden happening but came about gradually. As the road surface was broken by the pressure of lorry traffic it should have been obvious that a serious road hazard was being created. Nevertheless, nothing was done to remedy the situation. Anyone who renders a road unsafe must contemplate that people using the road may be injured. In my view the third party were negligent in causing the roadway to break and in failing to repair it. It was negligence also to ignore the added risk of splashed water in winter time turning into ice, and so permitting the condition of affairs to exist which confronted the deceased on the night of the accident. In my view what happened was clearly foreseeable by those who caused or permitted this condition of affairs to exist. On this ground of negligence also I am of opinion that the plaintiff could have held the third party liable to her in respect of the death of her husband.
In my view this appeal should be allowed and the defendant should be held entitled to a contribution against the third party.
Kenny J.
On the evening of Sunday the 21st January, 1973, there was a heavy fall of rain. When it stopped, the weather became bitterly cold and there was very heavy frost on the roads near Dublin. At about midnight or shortly after it Jonathan Wade, a well-known artist, was riding a motor scooter on Monastery Road: he was coming from the Naas Road and going towards Clondalkin. The lights on his scooter had not been turned on. Mr. Wade was riding about three feet out from the edge of the highway on which there was no kerb and was travelling at a very slow speed. Monastery Road is 20 feet wide and, as it leads to Clondalkin, has heavy traffic on it at all times.
The third party had offices and land on Mr. Wade’s left which adjoined the highway. There was a wide opening to the gate of the third party’s premises into which heavy lorries went frequently. These heavy lorries, which were laden and unladen, had created seven pot-holes most of which were partly on the highway and partly on the opening which led to the gate. The combined length of the seven pot-holes was about 28 feet and they varied in depth from 2 inches to 6 inches. Water collected in them and was splashed out by the wheels of traffic which might have to travel near the edge of the highway.
On the night when Mr. Wade was killed, water had splashed out on to the highway and had become ice on the road. This patch of ice extended one or two feet on to the highway measured from an imaginary line across the opening which led to the gate. The place where the accident happened was lit by two electric lights placed at the north and south points where the opening began. The lights were dull and did not give good vision.
A Garda patrol car was travelling on Monastery Road in the Naas direction and the Guards in it saw Mr. Wade coming in the opposite direction. They gave evidence that Mr. Wade was off balance as if he had got on to rough ground and was trying to hold himself on his scooter. He did not succeed and fell on the road. He then tried to pick himself and his scooter up. It seems to me certain (and the trial judge so held) that Mr. Wade’s scooter skidded on the ice on the road. The defendant was driving a car at about 30 m.p.h. in the same direction as Mr. Wade was going. The wheels on the left side of his car did not go into the pot-holes or cross the ice. He did not apply his brakes before he struck and killed Mr. Wade. After the accident the defendant said on a number of occasions: “It’s my fault,” “I hope they shoot me for this” and “I did not see him.”
The trial judge stated his findings of fact with admirable clarity and rightly held that the defendant was grossly negligent in failing to see Mr. Wade and in not putting on his brakes. He also held (and I entirely agree with his finding) that Mr. Wade was negligent because he did not see the pot-holes and ice and failed to steer his scooter so as to avoid them.
Mr. Wade’s widow began an action against the defendant only and claimed damages for negligence. The defendant issued a third-party notice against the third party and delivered a statement of claim in which he pleaded that the third party had been negligent and had created a public nuisance which caused or contributed to the accident. The action by Mr. Wade’s widow against the defendant was settled for £25,000 on the morning of the day when it was listed for hearing. As Mr. Wade was survived by a widow and four young children, this figure was a compromise; counsel on this appeal have agreed that it took into account the certainty that a jury would have held that Mr. Wade was guilty of some degree of contributory negligence. The defendant’s claim for contribution against the third party was then heard without a jury by the trial judge, who dismissed it. He held that he did not have to decide finally whether the third party should reasonably have foreseen what happened because, even if the third party were negligent, “I would in these circumstances as between the defendant and the third party have found the defendant 100% at fault.”
Section 21 of the Civil Liability Act, 1961, provides:
“(1) Subject to the provisions of this Part, a concurrent wrongdoer (for this purpose called the claimant) may recover contribution from any other wrongdoer who is, or would if sued at the time of the wrong have been, liable in respect of the same damage (for this purpose called the contributor), so, however, that no person shall be entitled to recover contribution under this Part from any person entitled to be indemnified by him in respect of the liability in respect of which the contribution is sought.
(2) In any proceedings for contribution under this Part, the amount of the contribution recoverable from any contributor shall be such as may be found by the court to be just and equitable having regard to the degree of that contributor’s fault, and the court shall have power to exempt any person from liability to make contribution or to direct that the contribution to be recovered from any contributor shall amount to a complete indemnity.”
Section 2 of the Act of 1961 includes a number of relevant definitions.”Wrong” is defined as meaning “a tort, breach of contract or breach of trust, whether the act is committed by the person to whom the wrong is attributed or by one for whose acts he is responsible, and whether or not the act is also a crime, and whether or not the wrong is intentional.” The word “wrongdoer” is defined as meaning “a person who commits or is otherwise responsible for a wrong” and “concurrent wrongs” is defined as meaning “wrongs committed by persons in respect of which they are concurrent wrongdoers.”
I have no doubt that a defendant is entitled to recover contribution from a person who is not sued in the original action only if the plaintiff in the action could have succeeded in proceedings against the person from whom the contribution is claimed. The words in the section “or would if sued at the time of the wrong have been, liable in respect of the same damage” establish this. Therefore, it is necessary to consider whether Mr. Wade’s widow would have succeeded against the third party in an action based on negligence and public nuisance.
Negligence causing death or personal injury is a legal wrong. It is a breach of a duty owed generally. The duty arises when a reasonable human being should have foreseen that his action or omission to act will cause death or injury. Therefore, to make a defendant liable for negligence causing death or personal injury, he must have failed to foresee what a reasonable man would have foreseen. This foreseeability relates not only to what is done or omitted to be done but also to the consequences of doing or not doing what a reasonable man should do. Professor Heuston (the Regius Professor of Law in the University of Dublin) has pointed out in successive editions of Salmond on Torts (in which he has most helpfully almost re-written the whole section dealing with negligence) that the concept of reasonable foresight is used in seeking the answer to two distinct questions,i.e., was the defendant under any duty of care at all and, if so, did he observe the standard required in the circumstances of the case? The concept now extends, in addition to the two mentioned by Professor Heuston, to the result of the failure of the defendant to foresee the consequences of his act or omission to act: Overseas Tankship (U.K.) Ltd. v. The Miller Steamship Co. Pty. 10 [The Wagon Mound (No. 2)]. The most striking feature of the case law on this vexed topic is the variety of terms usedsee Lord Reid’s speech in that case. Montaigne was not the only one who wrote that most of the occasions of the troubles of the world are grammatical.
What should the directors and employees of the third party, as reasonable men, have foreseen in this case? They should have foreseen (a) that the pot-holes which their lorries had made would become full of water in January; (b) that cars, motor bicycles, motor scooters and bicycles would cause water to be splashed across this busy road; (c) that in January there was likely to be severe frost and that, at night at least, the water splashed would become a sheet of ice; (d) that motor bicycles, motor scooters and bicycles would be in great danger of skidding or falling sideways on this patch of ice; (e) that riders of these would be thrown on to the road surface; (f) that lorries or cars following these might run into the riders of these vehicles.
When an accident has happened there is a constant temptation for judges to attribute to the reasonable man a degree of foresight which an Old Testament prophet would have envied. One must not attribute to the reasonable human being a superhuman degree of foresight. Should the directors and employees have anticipated, in addition to the matters I have mentioned, that a driver of a car travelling behind a motor-cyclist who was crossing this icy patch and who had fallen would drive with gross negligence and so kill or injure the motor-cyclist? I do not think that they should but, on the better authorities, this is not a defence to a claim which Mr. Wade’s widow could have made against the third party.
No two accidents are alike and the fact that a defendant did not foresee the exact way in which an accident happened does not excuse him. There are numerous cases on this topic, but I propose to confine myself to three because they are decisions of the House of Lords and of the Privy Council and so of the highest authority. In Miller v. South of Scotland Electricity Board 11 Lord Keith of Avonholm said at p. 34 of the report:
“It has been pointed out in other cases that it is not necessary to foresee the precise accident that happened and similarly it is not necessary, in my opinion, to postulate foreseeability of the precise chain of circumstances leading up to an accident. There does not seem to me to be anything fantastic or highly improbable in the series of happenings that are alleged to have led to the accident here. If it is reasonably probable that an accident may happen from some act of neglect or commission that may be enough to discharge the initial onus on the pursuer, though it would remain, of course, to show that the pursuer was within the class of persons to whom a duty was owed. The question is:Was what happened so remote that it could not be reasonably foreseeable?”
Hughes v. Lord Advocate 12 was not cited to the trial judge or to us; it is so relevant to this case that I propose to outline the facts of it. A child aged 8 years was in company with another boy in Russell Road, Edinburgh. Near the edge of the roadway there was a manhole 9 feet deep. Post Office employees had opened the manhole to work on the telephone cable. They placed a sheltered tent over it and put four paraffin lamps on its corners. At 5 p.m. all of them had left the site for a tea break. The shelter and lamps were thus unattended. The employees had removed the ladder from the manhole and left it beside the shelter; and they had pulled a tarpaulin cover over the entrance to the shelter and left a space of about 2 feet between the lower edge of the tarpaulin and the ground. The lamps were left burning. The boys took one of the lamps and the ladder into the tent to explore. One of them tripped over the lamp which fell into the manhole and caused a violent explosion in which both of them were seriously burned. The cause of the explosion was that paraffin from the lamp had escaped and formed a vapour which was ignited by the lamp. There was coercive expert evidence that the escape of vapour and its ignition by the lamp was highly improbable and could not have been foreseen by anyone. The House of Lords held that the happening of the accident of the type which did occur was reasonably foreseeable even though the way in which it happened (the explosion) could not possibly have been foreseen, and that this did not absolve the defendant from liability. The analogy of this authority to the instant case is striking. Here the third party should have foreseen that a motor-cyclist, the rider of a motor scooter or of a pedal bicycle, would slip or slide on the ice path and fall and, possibly, sustain slight injuries. Although the third party could not have foreseen that a motorist would drive with gross negligence, in my opinion, they are liable. It is a matter of regret that this case was not cited to the trial judge as, if it had been, he might have decided this issue in another way.
The trial judge held that the defendant was 100% negligent, and I understand this to mean that he thought that the third party could not have foreseen that the accident would happen in the way it did. If he meant that the third party’s negligence was not a cause of the accident, it is sufficient to say that this was not mentioned in the argument in this Court. As it was not mentioned, I do not intend to enter into the question of causationa problem which has vexed the best minds of humanity for 2,400 years and the legal discussion of which has been thoroughly obscured by the use of such Latin jargon as causa causans, causa sine qua non, remota causa.
The third authority is the advice of a particularly distinguished Privy Council in The Wagon Mound (No. 2) 13 which was a case based on negligence and nuisance in which Her Majesty was advised that foreseeability of the injury is a necessary element in the measure of damages recoverable in a case of nuisance, and that Hughes v. Lord Advocate 14 was a correct decision.
Therefore, I am of opinion that the third party were negligent, that their acts and omissions to act contributed to the accident, and that they are liable to make a contribution to the damages paid by the defendant.
I think that the third party are also liable in nuisance. In modern conditions of fast-moving traffic, a sheet of ice on a busy highway is a public nuisance for which the person creating it is liable in damages. In McKenna v. Lewis and Laoighis County Council 15 (which was not cited to the trial judge or to us) the former Supreme Court unanimously held that an excavation on land adjoining a highway which lies so close to the highway that a person accidentally straying off the road could fall into it is a danger to persons using the road and so a nuisance.
Sharp v. Powell 16 was relied on to establish that the ice patch was not a nuisance. In that case a servant of the defendant washed his van in a public street. Because of a severe frost and a blockage in a drain, the water did not get away but spread over the street and became a sheet of ice on which the plaintiff’s horse slipped and was injured. The Court of Common Pleas held that the defendant could not reasonably be expected to foresee that water would accumulate and freeze at the spot where the accident happened. I think that the court attributed a remarkable lack of foresight to the defendant’s servant, and I agree with the remarks of Lord Reid at p. 637 of the report of The Wagon Mound (No. 2) 13:”It may be that today the defendant’s servant would be expected to be more wide awake and observant but given the finding of fact regarding foreseeability the rest followed.” The decision in Sharp v. Powell 16 is not authority for the proposition that a patch of ice created by a defendant in a highway cannot be a nuisance.
Counsel for the third party argued forcefully that it is an offence for anyone to interfere with the highway and that his clients could do nothing as they could not repair the highway. There are two good answers to this contention. The pot-holes were partly on the premises owned by the third party and partly on the highway. The bigger area of each of them was on the property of the third party and they could and should have repaired these. If they had done so, the portion of the pot-holes in the highway would have been minute and the quantity of water in them would have been so much smaller that it would probably not have caused the ice patch. Secondly, the pot-holes beside the highway but not in it were themselves a nuisance because water could accumulate in them and spread on to the road and form an icy patch. He also submitted that a private individual cannot have a cause of action in relation to damage to the highway. But the pot-holes themselves did not cause or contribute to the accident: it was the ice formed from water splashed from the pot-holes which constituted the nuisance. The damage to the highway caused by the third party was merely the reason why the ice formed. This claim by the defendant, while based in part on the pot-holes, rested mainly on the effect which they had on the highway by the formation of the patch of ice. Reliance was also placed on the pot-holes on the property of the third party as being part of the nuisance.
I am of opinion that the defendant is entitled to contribution from the third party on the ground of nuisance. The principles on which contribution is to be assessed, the meaning of “fault” in s. 21, sub-s. 2, of the Act of 1961, and the amount of the contribution were not discussed in argument at all and so we cannot give any decision on these questions at the moment.
Parke J.
In my opinion the appeal should be allowed and the third party held to be liable in negligence and in nuisance.
Kielthy v. Ascon Ltd
[1970] IR 122
O’Dalaigh C.J. Supreme Court
This appeal is taken by the defendants against the verdict and judgment in the plaintiff’s favour in her claim under Part IV of the Civil Liability Act, 1961, in respect of the death of her husband while in the employment of the defendants as a carpenter’s helper.
The learned trial judge, Mr. Justice Butler, for the purpose of determining the issue of the defendants’ liability, and its extent, submitted three questions to the jury. The questions, with the jury’s answers appended, were as follows:
“1. Did the deceased, Richard Kielthy, fall from the wall?
Answer: Yes.
2. If so, was the said fall caused or contributed to by the failure of the defendants to provide and maintain proper and safe means of passage on the building site?
Answer: Yes.
3. Was the fall caused or contributed to by the negligence of the said deceased?
Answer: No.”
The defendants were building contractors who were engaged in erecting, on behalf of the Electricity Supply Board, a large transformer station on a site in the vicinity of the confluence of the rivers Barrow and Suir. The buildings to comprise the station were to be erected on three terraces at descending levels and, as the questions submitted by the trial judge to the jury indicate, the case was concerned with the means of access provided by the defendants for their workers on the building site. On the afternoon when the plaintiff’s husband was injured and died, he was on his way from the uppermost terrace to the defendant company’s office on the lowest terrace on business in connection with payment of arrears of wages. In the course of this journey he walked along the top of a wall which formed part or the structure which was being erected, and shortly afterwards he was found dead at the foot of one side of this wall. The negligence alleged by the plaintiff was that the defendants had provided and maintainemeans of access to and from the defendant company’s office on the site, the top of a concrete wall which was unsuitable and unsafe, as a result of which her husband fell from the wall and was killed.
At one stage of the case evidence, on behalf of the defendants, was directed to show that there were alternative routes to the office which were safe and which the deceased workman could have used but, when the questions came to be settled by the trial judge, counsel for the defendants conceded (as he put it) that he had accepted from the time that all the workmen had given evidence that they all used the wall and that, while there were other routes provided, this was a recognised route.
The plaintiff’s case was laid not alone in common-law negligence but also in breach of statutory duty and, in the particulars furnished at the defendants’ request, the plaintiff alleged a failure on the part of the defendants to comply (a) with the requirements of Article 6 of the Building (Safety, Health and Welfare) Regulations, 1959, and (b) with the requirements of s. 37 of the Factories Act, 1955. Counsel for the plaintiff, in addressing the jury, opened this aspect of the plaintiff’s claim as well as the claim in negligence and cited to them the terms of the article and of s. 37 of the statute. At the conclusion of counsel’s address, counsel for the defendants in the jury’s absence submitted to the judge that the article and section referred to had no application and he asked that in the circumstances the jury should be discharged. Counsel for the plaintiff conceded that he was wrong about s. 37 of the Act of 1955, but he maintained that the article applied. The trial judge, however, ruled against counsel on this latter point, but he declined to discharge the jury. Then the trial judge, having recalled the jury, explained to them that neither the section of the Factories Act nor the Building Regulations applied to the accident “good, bad, or indifferent,” and he said that they were to forget everything that counsel for the plaintiff had said about the statute and the Regulations, and that they were to forget anything they might remember about what was in the section or what was in the Regulations, and that they were to regard the case as concerned merely with common-law duty. Counsel for the plaintiff now accepts the trial judge’s ruling in respect of the Building Regulations.
The first, and major, ground advanced in support of the appeal by counsel for the defendants is that the trial judge, having held that plaintiff’s counsel was wrong in law in opening the terms of the Factories Act and of the Building Regulations to the jury, misdirected himself in law in refusing to discharge the jury. The portions of Article 6 of the Building Regulations referred to by counsel were paragraphs 8, 9 and 10 which are as follows:
“(8) Platforms, gangways, runs, staircases, other means of access and floors shall be kept free from obstruction or loose materials liable to cause workers to trip or be otherwise injured, and building materials required thereon shall be stacked or stored in such manner and in such quantities as not to cause obstruction or danger.
(9) Every gangway or run shall be closely boarded, planked or plated and shall be provided with handrails and toeboards or other effective means to prevent the fall of persons or articles therefrom.
(10) Every gangway or run shall be of a width adequate for the passage of materials and, in any case, shall not be less than seventeen inches wide for the passage of persons only and twenty-five inches for the passage of persons and materials.”
Counsel for the defendants complained of the adverse effect on the jury of the reference in paragraph 10 to the requirement that gangways or runs for the passage of persons should be not less than seventeen inches wide. In respect of s. 37 of the Factories Act, counsel’s complaint was that the opening to the jury of the terms of sub-s. 2 of the section was prejudicial to his client’s defence. Sub-section 2 reads as follows:
“Where any person is to work at a place from which he will be liable to fall a distance more than ten feet, then, unless the place is one which affords secure foothold and, where necessary, secure hand-hold, means shall be provided, so far as is reasonably practicable, by fencing or otherwise for ensuring his safety.”
It cannot be questioned that s. 37 of the Factories Act, 1955, has nothing to say to these building operations. The general safety provisions of the Act of 1955 are contained in Part III of the Act (which includes s. 37) and they are applicable to building operations only to the very limited extent specified in s. 88, sub-s. 1(c) of the Act of 1955.
The wall in question here was a foundation wall. Because the structure was being built at different levels, the height of the wall was not the same on both sides. On the northern side the height (or drop) was 3′ 4”, while on the southern side it was 6′ 6” plus a slope of 5 to 6 feet at an angle of 45say a total height (or drop) of 11′ 6” to 12′ 6”. The base of the wall was 1′ 3” in width, but it narrowed to 9 inches at the top, and this was the width of the walking surface which was available to the deceased over a distance of about 30 yards.
The deceased’s body was found on the northern side of the wall, face down, hands outstretched, palms upturned, and feet towards the wall. Death, which was instantaneous, was due to crushing of the spinal cord, following upon the dislocation of the upper cervical vertebra. In simpler language, the deceased died of a dislocated neck.
Both counsel for the defendants and the judge wavered in their attitudes as to the course which should be taken after the Regulations and the section of the statute had been opened to the jury. Counsel for the defendants, in making his objection, began by saying he was concerned at that stage that the matter should be set right, adding:”whether the right way to set it right is by your lordship discharging the jury or telling them now . . .” The judge intervened with:”What do you want me to do?” Counsel’s reply was that he would prefer to have the jury discharged, because the case had been opened on a wholly wrong footing. Counsel for the plaintiff, having conceded that he had no case under the statute, submitted that the Regulations applied but, finding the judge against him on this point, he turned to deal with the application to discharge the jury. The judge immediately intervened and said:”I am not going to discharge the jury.” Counsel for the plaintiff was agreeable to this course, and the judge next turned to counsel for the defendants to ask if that satisfied him. Counsel said that it did not satisfy him and the judge countered this by pointing out that counsel had begun by suggesting alternative courses, and the judge asked counsel if he now was asking only for the jury’s discharge. Counsel agreed that he had indicated alternative courses but said he would not now be satisfied unless the jury was discharged. In the course of the discussion which followed the judge indicated that he thought the reference to the 17 inches as a minimum width had been so implanted in the minds of the jury that no matter what he said he could not get rid of it. He then observed that he had the greatest sympathy for the plaintiff’s situation “withthis horde of witnesses up on a Friday morning.” The judge thereupon offered to try the action without a jury; counsel for the plaintiff was agreeable but counsel for defendants declined the offer and, after some further discussion, the judge decided that he would not discharge the jury and, on recalling the jury, he addressed them in the terms I have already quoted.
I would uphold the judge’s ruling that the jury should not be discharged, but I would do so on a ground not advanced in its support at the trial. I do not find it necessary to go outside the special facts of this case and the view which, in my opinion, a reasonable jury must take of them. The wall in question here was only 9 inches wide. A volume of the Irish Reports is 91/2inches high. If one places a number of volumes of the Irish Reports spine to leaf, it gives one a vivid picture of the wall which was a “recognised passage” to and from the defendants’ administration office on the site. To complete the picture, add to this the fact that on one side there is a drop of 3′ 4” and on the other side a drop of 11′ 6” to 12′ 6”. In my opinion no jury could reasonably hold otherwise than that a passage of such narrow dimensions, raised as this passage was, was not a proper and safe means of passage for the defendants’ workers on this building site. There was barely room for a worker’s two feet on the wall standing stock still. The presence of an 11 or 12 foot drop on one side would prudently require that a worker should keep away from the southern edge because of the greater peril of the drop of 11′ 6” to 12′ 6”, thus narrowing further the traversable surface. While the use of such a passage might be acceptable as a means of training athletic young people in the art of sedate and unwavering carriage, as an everyday passage to a contractor’s administrative offices on a building site for workmen whose business required that they should have resort to that office it was manifestly unsafe and inadequate. In my view the reference to the statute and the regulations, even if the jury had not disabused their minds of what they had heard, could not in law have affected the answer to the second question submitted to the jury.
I now turn to a consideration of the several other objections raised by counsel for the defendants to the trial and the verdict.
Counsel first submitted that there was no evidence that the deceased fell from the wall, that is to say, that there was no evidence to warrant the jury’s answer “Yes” to the first question. In my opinion there was evidence from which the jury could infer as a matter of probability that the deceased fell from the wall. The deceased’s foreman, Patrick Nevin, gave the deceased permission to go to the company’s office to inquire about a day’s wages which he claimed he had not been paid. The deceased was seen setting out in a direction which would eventually have taken him along the wall to the office. This was not only the most convenient way of reaching the office but, according to Nevin’s evidence, it was the way that was invariably used. Another witness, the carpenter, Denis Collins, described the wall as the”customary” way of reaching the office. All the evidence points to the probability that he went by the wall route. The position in which the deceased’s body was found twenty minutes later, far from challenging the correctness of this inference, supports it. His feet were close to the wall and his head outwards, very much where one might expect someone who had fallen from the wall to be found. There was only one unusual feature about the body which is that, while the body was face downwards, the palms of the outstretched hands were facing upwards. Whatever the explanation of this featureand none could be furnished a fall or stumble at ground level is not thereby made more likely than a fall from the wall. Indeed the injuries which the deceased suffered of their very nature were such as are more likely to have been caused by a fall from a height than by stumbling at ground level. For these reasons I am of opinion that there was ample evidence to warrant the jury’s answer to the first question.
Next it was submitted that the deceased’s employers could not be held to be negligent if, in addition to the wall passage (assuming the wall passage to be unsafe), they provided other means of access which were safe. At the trial the defendants’ counsel said he accepted that the wall passage was what he called a “recognised” route to the office. In my opinion if an employer offers without distinction a number of modes of access to the company’s office of which all, except one, are safe, he cannot be relieved of his liability because a workman happens to choose to use the one which turns out to be unsafe. His duty is not to see that some modes of access which he offers are safe but to see that all of them are safe.
Thirdly, it was submitted that the jury’s answer to the second question submitted to them should not be allowed to stand because the deceased’s employers had provided several safe modes of access to the company’s office but the deceased had chosen one which was dangerous. Much of what I have said in dealing with the defendants’ main ground of appeal is again in point here. The employer does not escape liability merely by providing safe means of access; if he also provides or “recognises”other modes of access which are not safe, he is answerable if a workman is injured while using one of such other modes of access. It should also be added that the point taken in this ground of appeal had in fact vanished from the case before the questions came to be settled; the defendants accepted that they provided or recognised the wall route and made the case that it was a safe route.
Fourthly, the defendants have complained that there should have been a finding of contributory negligence against the deceased as the wall was held not to have been a safe means of passage. At the trial the defendants made the case that their allegation of contributory negligence was as to the manner of the deceased’s user of the wall route. Understandably they chose this course in order that they might present a consistent case to the jury. They were unwilling to present the alternative case that the wall route was unsafe. Having chosen to allege negligence only as to the manner of using the wall route, the difficulty presented itself that the onus rested on them to offer evidence of negligence in the manner of user. This they were unable to do and the jury, in my opinion, therefore properly made a finding of no contributory negligence on the part of the deceased.
Fifthly, the defendants have complained that the trial judge put the plaintiff’s ease too favourably. On the question of liability I do not find that the trial judge expressed any view in favour of the plaintiff. He stated the facts and the law to be applied. Where he did express a strong view was in reference to the first questiondid the deceased fall from the wall? He told the jury that he could not see how they could come to any other conclusion and, again, that it seemed to him an inescapable conclusion from the evidence that the deceased was walking on the wall and that he did fall off. He was entitled as trial judge to express these views. He did, however, as was his duty, also make it clear to the jury that it was a matter for them. He called their attention to the two salient facts in the evidence,viz., that when last seen the deceased was going in the direction of the wall and when found dead he was at the foot of the wall. He added that if they could find evidence to support an opposite conclusion they should adopt it, or, unless the evidence satisfied them as a matter of probability, when they would not accept it. I am unable to agree that the charge was unfair to the defendants. Their defence in a sense was a static one: to invite the jury to reject what to my mind were the more probable inferences to be drawn from the undisputed evidence. Lastly, the defendants have complained of the award against them of the costs thrown away on the second day of the trial when, owing to some misunderstanding, the foreman of the jury failed to attend and the trial was adjourned. Counsel for the defendants was unwilling to continue with the trial in the absence of the foreman, and he relied upon s. 64 of the Juries Act, 1927, for submitting that the court had no power to do so. The section is as follows:
“Whenever in the course of the trial of any issue, a juror dies or is discharged by the Judge owing to his being incapable through illness or any other cause of continuing to act as a juror, the jury shall, unless the Judge otherwise directs or the number of jurors is thereby reduced below ten, be considered as remaining properly constituted for all the purposes of such trial, and such trial shall proceed and a verdict may be found accordingly.”
The section is a section which deals with the circumstances in which a jury may continue after a reduction in their numbers. First, the reduction of the jury, by up to two members, by death will not prevent the continuation of the trial unless the judge should otherwise direct. Secondly, the section contemplates that the judge may discharge a juror owing to his being incapable, through illness or any other cause, of continuing to act as a juror, and such discharge shall not prevent the continuation of the trial unless the judge should so direct or unless the discharge of the juror has had the effect of bringing the number of jurors below ten. While the section does not directly define the cases in which a judge may discharge a juror, it clearly acknowledges that he may do so where the juror is incapable of continuing to act as a juror on account of illness or any other cause. The judge, though anxious to continue with the trial, appears to have been persuaded by counsel for the defendants that the section did not apply, and counsel for the plaintiff was apparently apprehensive of the validity of the verdict of a diminished jury.
The real question is, was the foreman incapable of continuing to act as a juror through “any other cause” within the meaning of s. 64 of the Act of 1927. Incapacity is to be looked at objectively with reference to the continuance of the trial. What is the limitation of the words “any other cause”? They confer a very wide discretion on the trial judge. The ejusdem generis rule has no room for application because that rule requires that antecedent categories should establish a genus, and this cannot occur where, as here, the general words are preceded by the enumeration of but a single category. Incapacity to continue to act as a juror will, in my opinion, include the case of a juror who is not in attendance at the resumption of a trial. In any particular case a judge may well consider that he should adjourn the case for a brief or reasonable period before ordering the discharge of the absent juror but on the other hand, since continuity is a normal incident of a jury trial and delay adds to the costs of litigation, a judge may properly discharge a juror whose absence is unexplained. The unexplained absence of a juror is likely to be the most frequent cause of a check in the proceedings. Although the Interpretation Act, 1923, requires that a marginal note to a section is not to be taken as part of the Act or to be considered in relation to the construction of the Act, it is right to point out that in this instance the marginal note is quite misleading since it reads:”death or illness of juror during trial.”
My conclusion is that in this case the defendants’ counsel was wrong in his submission that the judge could not discharge the absent juror and continue with the trial; and in these circumstances I think the plaintiff is entitled, in addition to the general costs of the trial, to have the costs which were thrown away because of the adjournment which occurred on the second day of the trial.
For the reasons stated I would dismiss the appeal on all grounds.
UK Cases
Barnett v Chelsea and Kensington Hospital Management Committee
Queen’s Bench Division [1968] 1 All ER 1068
NEILD J
It remains to consider whether it is shown that the deceased’s death was caused by the negligence or whether, as the defendants have said, the deceased must have died in any event. . . .
There has been put before me a timetable which, I think, is of much importance. The deceased attended at the casualty department at 8.05 or 8.10 am. If Dr Banerjee had got up and dressed and come to see the three men and examined them and decided to admit them, the deceased . . . could not have been in bed in a ward before 11 am. I accept Dr Goulding’s evidence that an intravenous drip would not have been set up before 12 noon, and if potassium loss was suspected it could not have been discovered until 12.30. Dr Lockett, dealing with this, said ‘If … had not been treated until after 12 noon the chances of survival were not good’.
Without going in detail into the considerable volume of technical evidence which has been put before me, it seems to me to be the case that when death results from arsenical poisoning it is brought about by two conditions; on the one hand dehydration and on the other disturbance of the enzyme processes. If the principal condition is one of enzyme disturbance—as I am of the view that it was here—then the only method of treatment which is likely to succeed is the use of the specific or antidote which is commonly called BAL. Dr Goulding said this in the course of his evidence:
`The only way to deal with this is to use the specific BAL. I see no reasonable prospect of the deceased being given BAL before the time at which he died,’
and at a later point in his evidence:
`I feel that even if fluid loss had been discovered death would have been caused by the enzyme disturbance. Death might have occurred later.’
I regard that evidence as very moderate, and that it might be a true assessment of the situation to say that there was no chance of BAL being administered before the death of the deceased.
For these reasons, I find that the plaintiff has failed to establish, on the grounds of probability, that the defendants’ negligence caused the death of the deceased.
Sienkiewicz v Greif (UK) Ltd
Supreme Court [2011] UKSC 10, [2011] 2 All ER 857
LORD PHILLIPS:
Principles of causation in relation to disease
12 Many diseases are caused by the invasion of the body by an outside agent. Some diseases are caused by a single agent. Thus malaria results from a single mosquito bite. The extent of the risk of getting malaria will depend upon the quantity of malarial mosquitoes to which the individual is exposed, but this factor will not affect the manner in which the disease is contracted nor the severity of the disease once it is contracted. The disease has a single, uniform trigger and is indivisible.
13 The contraction of other diseases can be dose related. Ingestion of the agent that causes the disease operates cumulatively so that, after a threshold is passed, it causes the onset of the disease. Lung cancer caused by smoking is an example of such a disease, where the disease itself is indivisible. The
severity of the disease, once it has been initiated, is not related to the degree of exposure to cigarette smoke.
14 More commonly, diseases where the contraction is dose related are divisible. The agent ingested operates cumulatively first to cause the disease and then to progress the disease. Thus the severity of the disease is related to the quantity of the agent that is ingested. Asbestosis and silicosis are examples of such diseases, as are the conditions of vibration white finger and industrial deafness, although the insults to the body that cause these conditions are not noxious agents. For this reason it is important to distinguish between asbestosis and mesothelioma when considering principles of causation.
15 Mesothelioma is an indivisible disease . . . is uncertainty as to whether its contraction is related to the amount of asbestos fibres ingested.
16 It is a basic principle of the law of tort that the claimant will only have a cause of action if he can prove, on balance of probabilities, that the defendant’s tortious conduct caused the damage in respect of which compensation is claimed. He must show that, but for the defendant’s tortious conduct he would not have suffered the damage. This broad test of balance of probabilities means that in some cases a defendant will be held liable for damage which he did not, in fact, cause. Equally there will be cases where the defendant escapes liability, notwithstanding that he has caused the damage, because the claimant is unable to discharge the burden of proving causation.
17 There is an important exception to the ‘but for’ test. Where disease is caused by the cumulative effect of the inhalation of dust, part of which is attributable to breach of duty on the part of the defendant and part of which involves no breach of duty, the defendant will be liable on the ground that his breach of duty has made a material contribution to the disease: see Bonnington Castings Ltd v Wardlaw [1956] 1 All ER 615, [1956] AC 613. The disease in that case was pneumoconiosis. That disease is divisible. The severity of the disease depends upon the quantity of silica inhaled. The defendant did not, however, argue that, if held liable, this should only be to the extent that the dust for which it was responsible had contributed to the plaintiff’s symptoms. It was held liable for 100 per cent of the disease. There have, however, been a series of cases at first instance and in the Court of Appeal in which it has been recognised that where there has been a number of exposures of a claimant to bodily insults that have cumulatively caused a divisible disease, responsibility should be apportioned so that an individual
defendant is liable for no more than his share of the disease. This apportionment may necessarily be a rough and ready exercise: see Mustill J’s analysis in Thompson v Smith’s Shiprepairers (North Shields) Ltd [1984] 1 All ER 881 at 904-910, [1984] QB 405 at 437-444, and the cases cited in McGregor on Damages (18th edn, 2010) paras 8-010 to 8-016.
Fairchild v Glenhaven Funeral Services Ltd
House of Lords [2002] UKHL 22, [2002] 3 All ER 305
LORD BINGHAM OF CORNHILL: .
2 The essential question underlying the appeals may be accurately expressed in this way. If (1) C was employed at different times and for differing periods by both A and B, and (2) A and B were both subject to a duty to take reasonable care or to take all practicable measures to prevent C inhaling asbestos dust because of the known risk that asbestos dust (if inhaled) might cause a mesothelioma, and (3) both A and B were in breach of that duty in relation to C during the periods of C’s employment by each of them with the result that during both periods C inhaled excessive quantities of asbestos dust, and (4) C is found to be suffering from a mesothelioma, and (5) any cause of C’s mesothelioma other than the inhalation of asbestos dust at work can be effectively discounted, but
(6) C cannot (because of the current limits of human science) prove, on the balance of probabilities, that his mesothelioma was the result of his inhaling asbestos dust during his employment by A or during his employment by B or during his employment by A and B taken together, is C entitled to recover damages against either A or B or against both A and B? To this question (not formulated in these terms) the Court of Appeal (Brooke, Latham and Kay LJJ), in a reserved judgment of the court ([2001] EWCA Civ 1881, [2002] 1
WLR 1052), gave a negative answer. It did so because, applying the conventional ‘but for’ test of tortious liability, it could not be held that C had proved against A that his mesothelioma would probably not have occurred but for the breach of duty by A, nor against B that his mesothelioma would probably not have occurred but for the breach of duty by B, nor against A and B that his mesothelioma would probably not have occurred but for the breach of duty by both A and B together. So C failed against both A and B. The crucial issue on appeal is whether, in the special circumstances of such a case, principle, authority or policy requires or justifies a modified approach to proof of causation.
3 It is common ground that in each of the three cases under appeal conditions numbered
(1) to (5) above effectively obtained. During his working life the late Mr Fairchild worked for an employer (whose successor was wrongly identified as the first-named defendant) who carried out sub-contract work for the Leeds City Council in the early 1960s and may have built packing cases for the transportation of industrial ovens lined with asbestos. He also worked for a builder, in whose employment he cut asbestos sheeting both to repair various roofs and while renovating a factory for Waddingtons plc. In the course of his work Mr Fairchild inhaled substantial quantities of asbestos dust containing asbestos fibre which caused him to suffer a mesothelioma of the pleura, from which he died on 18 September 1996 at the age of 60. Waddingtons plc accepted at trial that it had exposed Mr Fairchild to the inhalation of asbestos fibres by a breach of the duty owed to him under s 63 of the Factories Act 1961. (Waddingtons plc was not an employer, but nothing turns on this distinction with the other cases.) It thereby admitted that he had been exposed to a substantial quantity of dust or had been exposed to dust to such an extent as was likely to be injurious to him. After the death of Mr Fairchild his widow brought this action, originally against three defendants (not including the builder). She discontinued proceedings against the first-named defendant, and on 1 February 2001 Curtis J dismissed her claim against Waddingtons plc and the Leeds City Council. The Court of Appeal dismissed her appeal against that decision in the judgment already referred to, finding it unnecessary (because of its decision on causation) to reach a final decision on all aspects of her common law claim against the Leeds City Council. She challenges that causation decision on appeal to the House.
[….
7 From about the 1960s, it became widely known that exposure to asbestos dust and fibres could give rise not only to asbestosis and other pulmonary diseases, but also to the risk of developing a mesothelioma. This is a malignant tumour, usually of the pleura, sometimes of the peritoneum. In the absence of occupational exposure to asbestos dust it is a very rare tumour indeed, afflicting no more than about one person in a million per year. But the incidence of the tumour among those occupationally exposed to asbestos dust is about 1,000 times greater than in the general population, and there are some 1,500 cases reported annually. It is a condition which may be latent for many years, usually for 30-40 years or more; development of the condition may take as short a period as ten years, but it is thought that that is the period which elapses between the mutation of the first cell and the manifestation of symptoms of the condition. It is invariably fatal, and death usually occurs within one to two years of the condition being diagnosed. The mechanism by which a normal mesothelial cell is transformed into a mesothelioma cell is not known. It is believed by the best medical opinion to involve a multi-stage process, in which six or seven genetic changes occur in a normal cell to render it malignant. Asbestos acts in at least one of those stages and may (but this is uncertain) act in more than one. It is not known what level of exposure to asbestos dust and fibre can be tolerated without significant risk of developing a mesothelioma, but it is known that those living in urban environments (although without occupational exposure) inhale large numbers of asbestos fibres without developing a mesothelioma. It is accepted that the risk of developing a mesothelioma increases in proportion to the quantity of asbestos dust and fibres inhaled: the greater the quantity of dust and fibre inhaled, the greater the risk. But the condition may be caused by a single fibre, or a few fibres, or many fibres: medical opinion holds none of these possibilities to be more probable than any other, and the condition once caused is not aggravated by further exposure. So if C is employed successively by A and B and is exposed to asbestos dust and fibres during each employment and develops a mesothelioma, the very strong probability is that this will have been caused by inhalation of asbestos dust containing fibres. But C could have inhaled a single fibre giving rise to his condition during employment by A, in which case his exposure by B will have had no effect on his condition; or he could have inhaled a single fibre giving rise to
his condition during his employment by B, in which case his exposure by A will have had no effect on his condition; or he could have inhaled fibres during his employment by A and B which together gave rise to his condition; but medical science cannot support the suggestion that any of these possibilities is to be regarded as more probable than any other. There is no way of identifying, even on a balance of probabilities, the source of the fibre or fibres which initiated the genetic process which culminated in the malignant tumour. It is on this rock of uncertainty, reflecting the point to which medical science has so far advanced, that the three claims were rejected by the Court of Appeal and by two of the three trial judges.
Principle
8 In a personal injury action based on negligence or breach of statutory duty the claimant seeks to establish a breach by the defendant of a duty owed to the claimant, which has caused him damage. For the purposes of analysis, and for the purpose of pleading, proving and resolving the claim, lawyers find it convenient to break the claim into its constituent elements: the duty, the breach, the damage and the causal connection between the breach and the damage. In the generality of personal injury actions, it is of course true that the claimant is required to discharge the burden of showing that the breach of which he complains caused the damage for which he claims and to do so by showing that but for the breach he would not have suffered the damage.
9 The issue in these appeals does not concern the general validity and applicability of that requirement, which is not in question, but is whether in special circumstances such as those in these cases there should be any variation or relaxation of it. The overall object of tort law is to define cases in which the law may justly hold one party liable to compensate another. Are these such cases? A and B owed C a duty to protect C against a risk of a particular and very serious kind. They failed to perform that duty. As a result the risk eventuated and C suffered the very harm against which it was the duty of A and B to protect him. Had there been only one tortfeasor, C would have been entitled to recover, but because the duty owed to him was broken by two tortfeasors and not only one, he is held to be entitled to recover against neither, because of his inability to prove what is scientifically unprovable. If the mechanical application of generally accepted rules leads to such a result, there must be room to question the appropriateness of such an approach in such a case . . .
13 I do not . . . consider that the House is acting contrary to principle in reviewing the applicability of the conventional test of causation to cases such as the present. Indeed, it would seem to me contrary to principle to insist on application of a rule which appeared, if it did, to yield unfair results. And I think it salutary to bear in mind Lord Mansfield’s aphorism in Blotch v Archer (1774) 1 Cowp 63 at 65, 98 ER 969 at 970 quoted with approval by the Supreme Court of Canada in Snell v Farrell:
`It is certainly a maxim that all evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted.’
[
21 This detailed review of McGhee’s case permits certain conclusions to be drawn. First, the House was deciding a question of law. Lord Reid expressly said so ([1972] 3 All ER 1008 at 1009, [1973] 1 WLR 1 at 3). The other opinions, save perhaps that of Lord Kilbrandon, cannot be read as decisions of fact or as orthodox applications of settled law. Secondly, the question of law was whether, on the facts of the case as found, a pursuer who could not show that the defender’s breach had probably caused the damage of which he complained could nonetheless succeed. Thirdly, it was not open to the House to draw a factual inference that the breach probably had caused the damage: such an inference was expressly contradicted by the medical experts on both sides; and once that evidence had been given the crux of the argument before the Lord Ordinary and the First Division and the House was whether, since the pursuer could not prove that the breach had probably made a material contribution to his contracting dermatitis, it was enough to show that the breach had increased the risk of his contracting it. Fourthly, it was expressly held by three members of the House ([1972] 3 All ER 1008 at 1011, 1014, 1018, [1973] 1 WLR 1 at 5, 8, 12-13 per Lord Reid, Lord Simon and Lord Salmon respectively) that in the circumstances no distinction was to be drawn between making a material contribution to causing the disease and materially increasing the risk of the pursuer contracting it. Thus the proposition expressly rejected by the Lord Ordinary, the Lord President and Lord Migdale was expressly accepted by a majority of the House and must be taken to represent the ratio of the decision, closely tied though it was to the special facts on which it was based. Fifthly, recognising that the pursuer
faced an insuperable problem of proof if the orthodox test of causation was applied, but regarding the case as one in which justice demanded a remedy for the pursuer, a majority of the House adapted the orthodox test to meet the particular case. The authority is of obvious importance in the present appeal since the medical evidence left open the possibility, as Lord Reid pointed out ([1972] 3 All ER 1008 at 1010, [1973] 1 WLR 1 at 4) that the pursuer’s dermatitis could have begun with a single abrasion, which might have been caused when he was cycling home, but might equally have been caused when he was working in the brick kiln; in the latter event, the failure to provide showers would have made no difference. In McGhee’s case, however, unlike the present appeals, the case was not complicated by the existence of additional or alternative wrongdoers.
22 In Wilsher v Essex Area Health Authority [1988] 1 All ER 871, [1988] AC 1074 . . . the House was right to allow the defendants’ appeal . . . It is one thing to treat an increase of risk as equivalent to the making of a material contribution where a single noxious agent is involved, but quite another where any one of a number of noxious agents may equally probably have caused the damage. But much difficulty is caused by the following passage in Lord Bridge’s opinion in which, having cited the opinions of all members of the House in McGhee’s case, he said:
`The conclusion I draw from these passages is that McGhee v National Coal Board laid down no new principle of law whatever. On the contrary, it affirmed the principle that the onus of proving causation lies on the pursuer or plaintiff. Adopting a robust and pragmatic approach to the undisputed primary facts of the case, the majority concluded that it was a legitimate inference of fact that the defenders’ negligence had materially contributed to the pursuer’s injury. The decision, in my opinion, is of no greater significance than that and the attempt to extract from it some esoteric principle which in some way modifies, as a matter of law, the nature of the burden of proof of causation which a plaintiff or pursuer must discharge once he has established a relevant breach of duty is a fruitless one.’ (See [1988] 1 All ER 871 at 881-882, [1988] AC 1074 at 1090.)
This is a passage to which the Court of Appeal ([2002] 1 WLR 1052 at [103]) very properly gave weight, and in argument on these appeals counsel for the respondents strongly relied on it as authority for their major contention that a claimant can only succeed if he proves on the balance of probabilities that the default of the particular defendant had caused the damage of which he complains. As is apparent from the conclusions expressed in [21], above, I cannot for my part accept this passage in Lord Bridge’s opinion as accurately reflecting the effect of what the House, or a majority of the House, decided in McGhee’s case, which remains sound authority. I am bound to conclude that this passage should no longer be treated as authoritative.
32 This survey shows, as would be expected, that though the problem underlying cases such as the present is universal the response to it is not. Hence the plethora of decisions given in different factual contexts. Hence also the intensity of academic discussion, exemplified by the articles of the late Professor Fleming (Probabilistic Causation in Tort Law’ 68 Canadian Bar Review, No 4, December 1989, 661) and Professor Robertson (`The Common Sense of Cause in Fact’ (1996-1997) 75 Tex L Rev 1765). In some jurisdictions, it appears, the plaintiff would fail altogether on causation grounds, as the Court of Appeal held that the present appellants did. Italy, South Africa and Switzerland may be examples (see Unification of Tort Law: Causation (2000) pp 90, 102 and 120). But it appears that in most of the jurisdictions considered the problem of attribution would not, on facts such as those of the present cases, be a fatal objection to a plaintiff’s claim. Whether by treating an increase in risk as equivalent to a material contribution, or by putting a burden on the defendant, or by enlarging the ordinary approach to acting in concert, or on more general grounds influenced by policy considerations, most jurisdictions would, it seems, afford a remedy to the plaintiff. Development of the law in this country cannot of course depend on a head-count of decisions and codes adopted in other countries around the world, often against a background of different rules and traditions. The law must be developed coherently, in accordance with principle, so as to serve, even-handedly, the ends of justice. If, however, a decision is given in this country which offends one’s basic sense of justice, and if consideration of international sources suggests that a different and more acceptable decision would be given in most other jurisdictions, whatever their legal tradition, this must prompt anxious review of the decision in question. In a shrinking world (in which the employees of asbestos companies may work for those companies in any one or more of several countries) there must be some virtue
in uniformity of outcome whatever the diversity of approach in reaching that outcome.
Policy
33 The present appeals raise an obvious and inescapable clash of policy considerations. On the one hand are the considerations powerfully put by the Court of Appeal ([2002] 1 WLR 1052 at [103]) which considered the claimants’ argument to be not only illogical but—
`also susceptible of unjust results. It may impose liability for the whole of an insidious disease on an employer with whom the claimant was employed for quite a short time in a long working life, when the claimant is wholly unable to prove on the balance of probabilities that that period of employment had any causative relationship with the inception of the disease. This is far too weighty an edifice to build on the slender foundations of McGhee v National Coal Board, and Lord Bridge has told us in Wilsher v Essex Area Health Authority that McGhee established no new principle of law at all. If we were to accede to the claimants’ arguments, we would be distorting the law to accommodate the exigencies of a very hard case. We would be yielding to a contention that all those who have suffered injury after being exposed to a risk of that injury from which someone else should have protected them should be able to recover compensation even when they are quite unable to prove who was the culprit. In a quite different context Lord Steyn has recently said in………… that our tort system sometimes results in imperfect justice, but it is the best the common law can do.’
The Court of Appeal had in mind that in ……. there was only one employer involved. Thus there was a risk that the defendant might be held liable for acts for which he should not be held legally liable but no risk that he would be held liable for damage which (whether legally liable or not) he had not caused. The crux of cases such as the present, if the appellants’ argument is upheld, is that an employer may be held liable for damage he has not caused. The risk is the greater where all the employers potentially liable are not before the court. This is so on the facts of each of the three appeals before the House, and is always likely to be so given the long latency of this condition and the likelihood that some employers potentially liable will have gone out of business or disappeared during that period. It can properly be said to be unjust to impose liability on a party who has not been shown, even on a balance of probabilities, to have caused the damage complained of. On the other hand, there is a strong policy argument in favour of compensating those who have suffered grave harm, at the expense of their employers who owed them a duty to protect them against that very harm and failed to do so, when the harm can only have been caused by breach of that duty and when science does not permit the victim accurately to attribute, as between several employers, the precise responsibility for the harm he has suffered. I am of opinion that such injustice as may be involved in imposing liability on a duty-breaking employer in these circumstances is heavily outweighed by the injustice of denying redress to a victim. Were the law otherwise, an employer exposing his employee to asbestos dust could obtain complete immunity against mesothelioma (but not asbestosis) claims by employing only those who had previously been exposed to excessive quantities of asbestos dust. Such a result would reflect no credit on the law. It seems to me, as it did to Lord Wilberforce in McGhee’s case [1972] 3 All ER 1008 at 1013, [1973] 1 WLR 1 at 7, that—
`the employers should be liable for an injury, squarely within the risk which they created and that they, not the pursuer, should suffer the consequence of the impossibility, foreseeably inherent in the nature of his injury, of segregating the precise consequence of their default.’
Conclusion
34 To the question posed in [2], above, I would answer that where conditions (1)–(6) are satisfied C is entitled to recover against both A and B. That conclusion is in my opinion consistent with principle, and also with authority (properly understood). Where those conditions are satisfied, it seems to me just and in accordance with common sense to treat the conduct of A and B in exposing C to a risk to which he should not have been exposed as making a material contribution to the contracting by C of a condition against which it was the duty of A and B to protect him. I consider that this conclusion is fortified by the wider jurisprudence reviewed above. Policy considerations weigh in favour of such a conclusion. It is a conclusion which follows even if either A or B is not before the court. It was not suggested in argument that C’s entitlement against either A or B should be for any sum less than the full
compensation to which C is entitled, although A and B could of course seek contribution against each other or any other employer liable in respect of the same damage in the ordinary way. No argument on apportionment was addressed to the House. I would in conclusion emphasise that my opinion is directed to cases in which each of the conditions specified in (1)—(6) of [2], above is satisfied and to no other case. It would be unrealistic to suppose that the principle here affirmed will not over time be the subject of incremental and analogical development. Cases seeking to develop the principle must be decided when and as they arise. For the present, I think it unwise to decide more than is necessary to resolve these three appeals which, for all the foregoing reasons, I concluded should be allowed.
35 For reasons given above, I cannot accept the view (considered in the opinion of my noble and learned friend Lord Hutton) that the decision in McGhee’s case was based on the drawing of a factual inference. Nor, in my opinion, was the decision based on the drawing of a legal inference. Whether, in certain limited and specific circumstances, a legal inference is drawn or a different legal approach is taken to the proof of causation, may not make very much practical difference. But Lord Wilberforce, in one of the passages of his opinion in McGhee’s case . . ., wisely deprecated resort to fictions and it seems to me preferable, in the interests of transparency, that the courts’ response to the special problem presented by cases such as these should be stated explicitly. I prefer to recognise that the ordinary approach to proof of causation is varied than to resort to the drawing of legal inferences inconsistent with the proven facts.
LORD HOFFMANN: . . .
60 The problem in this appeal is to formulate a just and fair rule. Clearly the rule must be based upon principle. However deserving the claimants may be, your Lordships are not exercising a discretion to adapt causal requirements to the individual case. That does not mean, however, that it must be a principle so broad that it takes no account of significant differences which affect whether it is fair and just to impose liability.
61 What are the significant features of the present case? First, we are dealing with a duty specifically intended to protect employees against being unnecessarily exposed to the risk of (among other things) a particular disease. Secondly, the duty is one intended to create a civil right to compensation for injury relevantly connected with its breach. Thirdly, it is established that the
greater the exposure to asbestos, the greater the risk of contracting that disease. Fourthly, except in the case in which there has been only one significant exposure to asbestos, medical science cannot prove whose asbestos is more likely than not to have produced the cell mutation which caused the disease. Fifthly, the employee has contracted the disease against which he should have been protected.
62 In these circumstances, a rule requiring proof of a link between the defendant’s asbestos and the claimant’s disease would, with the arbitrary exception of single-employer cases, empty the duty of content. If liability depends upon proof that the conduct of the defendant was a necessary condition of the injury, it cannot effectively exist. It is however open to your Lordships to formulate a different causal requirement in this class of case. The Court of Appeal was in my opinion wrong to say that in the absence of a proven link between the defendant’s asbestos and the disease, there was no `causative relationship’ whatever between the defendant’s conduct and the disease. It depends entirely upon the level at which the causal relationship is described. To say, for example, that the cause of Mr Matthews’ cancer was his significant exposure to asbestos during two employments over a period of eight years, without being able to identify the day upon which he inhaled the fatal fibre, is a meaningful causal statement. The medical evidence shows that it is the only kind of causal statement about the disease which, in the present state of knowledge, a scientist would regard as possible. There is no a priori reason, no rule of logic, which prevents the law from treating it as sufficient to satisfy the causal requirements of the law of negligence. The question is whether your Lordships think such a rule would be just and reasonable and whether the class of cases to which it applies can be sufficiently clearly defined.
63 So the question of principle is this: in cases which exhibit the five features I have mentioned, which rule would be more in accordance with justice and the policy of common law and statute to protect employees against the risk of contracting asbestos-related diseases? One which makes an employer in breach of his duty liable for the claimant’s injury because he created a significant risk to his health, despite the fact that the physical cause of the injury may have been created by someone else? Or a rule which means that unless he was subjected to risk by the breach of duty of a single employer, the employee can never have a remedy? My Lords, as between the employer in breach of duty and the employee who has lost his life in
consequence of a period of exposure to risk to which that employer has contributed, I think it would be both inconsistent with the policy of the law imposing the duty and morally wrong for your Lordships to impose causal requirements which exclude liability.
64 My Lords, I turn from principle to authority. The case which most closely resembles the present is McGhee v National Coal Board [1972] 3 All ER 1008, [1973] 1 WLR 1, which my noble and learned friend Lord Bingham of Cornhill has analysed in some detail. There too, the employer was under a duty (to provide washing facilities) specifically intended to protect employees against being unnecessarily exposed to the risk of (among other things) a particular disease, namely dermatitis. Secondly, the duty was one intended to create a civil right to compensation for injury relevantly connected with its breach. Thirdly, it was established that the longer the workman exerted himself while particles of dust adhered to his skin, the greater was the risk of his contracting dermatitis. Fourthly, the mechanism by which dust caused the disease was unknown, so that medical science was unable to prove whether the particular dust abrasions which caused the dermatitis were more likely than not to have occurred before or after the dust would have been removed if washing facilities had been provided. All that could be said was that the absence of facilities added materially to the risk that he would contract the disease. Fifthly, the employee contracted the disease against which he should have been protected.
65 My Lords, in these circumstances, which in my opinion reproduce the essential features of the present case, the House decided that materially increasing the risk that the disease would occur was sufficient to satisfy the causal requirements for liability . . . some members of the House said that in the circumstances there was no distinction between materially increasing the risk of disease and materially contributing to the disease, what I think they meant was that, in the particular circumstances, a breach of duty which materially increased the risk should be treated as if it had materially contributed to the disease. I would respecfully prefer not resort to legal fictions and to say that the House treated a material increase in risk as sufficient in the circumstances to satisfy the causal requirements for liability. That this was the effect of the decision seems to me inescapable.
66 The grounds upon which the House was willing to formulate a special causal requirements rule in McGhee’s case seem to me equally applicable in this case . . .
67 I therefore regard McGhee’s case as a powerful support for saying that when the five factors I have mentioned are present, the law should treat a material increase in risk as sufficient to satisfy the causal requirements for liability . . .
[LORD HOFFMANNN then pointed out that the five factors to which he had referred were not present in Wilsher and continued:]
70 I . . . think that Wilsher’s case was correctly decided. The appellants have not made any submission to the contrary. But the grounds upon which McGhee’s case was distinguished are unsatisfactory . . .
73 The question is how narrowly the principle developed in McGhee’s case and applied in this case should be confined. In my opinion, caution is advisable . . . I would suggest that the rule now laid down by the House should be limited to cases which have the five features I have described.
74 That does not mean that the principle is not capable of development and application in new situations . . . For present purposes, the McGhee principle is sufficient. I would therefore allow the appeals.
LORD RODGER OF EARL SFERRY: . . .
151 Although counsel for the respondents accepted that, if reinstated, the principle in McGhee’s case would govern the present appeals and would mean that the appeals would have to be allowed, it is worth noticing why that should be so.
152 The parallels between the cases are striking. In McGhee’s case the defenders had negligently failed to provide showers to remove sweat and dust; in these cases the defendants had negligently failed to provide protection from asbestos dust. In McGhee’s case, by removing the sweat and dust, the showers would have been intended to guard the workmen against suffering skin diseases such as dermatitis; here the protection against inhaling asbestos dust would have been intended to guard the workmen against suffering asbestos-related illnesses such as mesothelioma. In McGhee’s case the failure to provide the showers materially increased the risk of the pursuer developing dermatitis; in these cases the failure to protect against inhaling asbestos dust materially increased the risk of the claimants developing mesothelioma. In McGhee’s case the pursuer developed dermatitis due to the presence of dust and sweat on his skin, while in these cases the claimants developed mesothelioma due to inhaling asbestos dust. In McGhee’s case it was not possible in the state of medical knowledge for the pursuer to prove in
the usual way whether the dermatitis started because of a single abrasion or because of multiple abrasions. Here in the state of medical knowledge it is not possible for the claimants to prove whether the mesothelioma started from the effect of a single fibre or from the effect of multiple fibres. In McGhee’s case it was simply not possible for the pursuer to prove that his dermatitis was caused by an accumulation of abrasions; similarly, here it is simply not possible for the claimants to prove that their mesothelioma was caused by an accumulation of asbestos fibres. In McGhee’s case it was not possible for the pursuer to prove that the hypothetical single abrasion had been caused at a time after he should have had a shower and was cycling home. Here it is not possible for the claimants to prove that the hypothetical single fibre had been inhaled while they were working with any particular employer and especially while they were working with any of the defendants.
153 In one respect, of course, the cases diverge. In McGhee’s case the only possible source of the dust and sweat was the National Coal Board’s kiln and the only possible wrongdoers were the coal board. Here, by contrast, the defendants are simply some among a number of employers who negligently exposed the claimants to asbestos dust. The Court of Appeal ([2002] 1 WLR 1052 at [104]) attached some importance to this distinction. On closer inspection, however, the distinction does not appear to be material for present purposes. The important point is that in both cases the state of scientific knowledge makes it impossible for the victim to prove on the balance of probabilities that his injury was caused by the defenders’ or defendants’ wrongdoing rather than by events of a similar nature which would not constitute wrongdoing on their part. Therefore, if the principle applies to permit the pursuer to recover in McGhee’s case, it should similarly apply to allow the claimants to recover in these cases. Indeed, on one view the principle is easier to apply in the present cases than in McGhee’s case since it is not disputed that the men developed mesothelioma as a result of a tort by one of their employers. The claimants thus have all the necessary elements for a successful claim except, it is argued, proof of causation. In McGhee’s case, on the other hand, it was possible that the pursuer’s dermatitis had been prompted purely by his exposure to dust in the kiln and by his exertions there, for which the employers would not have been liable in delict. So, application of the principle was crucial to connect the pursuer’s illness not just with the defenders’ legal wrong but with any legal wrong at all. In that sense these cases are a fortiori McGhee’s case.
154 The decision in McGhee’s case undoubtedly involved a development of the law relating to causation . . .
155 As counsel for the defendants submitted, the principle in McGhee’s case involves an element of rough justice, since it is possible that a defendant may be found liable when, if science permitted the matter to be clarified completely, it would turn out that the defendant’s wrongdoing did not in fact lead to the men’s illness. That consideration weighed with the Court of Appeal ([2002] 1 WLR 1052 at [103]). It must be faced squarely. The opposing potential injustice to claimants should also be addressed squarely. If defendants are not held liable in such circumstances, then claimants have no claim, even though, similarly, if the matter could be clarified completely, it might turn out that the defendants were indeed the authors of the men’s illness. Other considerations colour the picture. The men did nothing wrong, whereas all the defendants wrongly exposed them to the risk of developing a fatal cancer, a risk that has eventuated in these cases. At best, it was only good luck if any particular defendant’s negligence did not trigger the victim’s mesothelioma. The defendants, in effect, say that it is because they are all wrongdoers that the claimants have no case. In other words: the greater the risk that the men have run at the hands of successive negligent employers, the smaller the claimants’ chances of obtaining damages. In these circumstances, one might think, in dubio the law should favour the claimants. Moreover, in McGhee’s case the House did nothing more than set the requirement of proof at the highest that the pursuer could possibly attain—hardly a relaxation in any real sense. He had proved all that he could and had established that the defenders’ wrongdoing had put him at risk of the very kind of injury which befell him. To require more would have been to say that he could never recover for his injury—unless he achieved the impossible. Finally, as was recognised in McGhee ([1972] 3 All ER 1008 at 1015, 1018, [1973] 1 WLR 1 at 9, 12 per Lord Simon and Lord Salmon respectively), if the law did indeed impose a standard of proof that no pursuer could ever satisfy, then, so far as the civil law is concerned, employers could with impunity negligently expose their workmen to the risk of dermatitis—or, far worse, of mesothelioma. The substantive duty of care would be emptied of all practical content so far as victims are concerned. In my view considerations of these kinds justified the House in developing the approach of Viscount Simonds and Lord Cohen in Nicholson’s case [[1957] 1 All ER 776, [1957] 1 WLR 613] to fashion and apply the principle in McGhee’s case. A fortiori they justify the application of
that principle in the present case where the risk to the men was so much worse.
156 I derive support for that conclusion from what has been done in other legal systems. In the course of the hearing counsel for both sides referred to authorities from a number of different jurisdictions. It would be impossible to do justice to all of them in this opinion. Broadly speaking, they appear to me to demonstrate two things: first, that other systems have identified the need to adopt special rules or principles to cope with situations where the claimant cannot establish which of a number of wrongdoers actually caused his injury; secondly, that there are considerable divergences of view and indeed uncertainty as to the proper area within which any such special rules or principles should apply . . .
[LORD RODGER then referred to the position in other legal systems, including Roman law, and continued:]
168 At the very least, the cross-check with these systems suggests that it is not necessarily the hallmark of a civilised and sophisticated legal system that it treats cases where strict proof of causation is impossible in exactly the same way as cases where such proof is possible. As I have tried to show, there are obvious policy reasons why, in certain cases at least, a different approach is preferable in English law too. The present are among such cases. Following the approach in McGhee’s case I accordingly hold that, by proving that the defendants individually materially increased the risk that the men would develop mesothelioma due to inhaling asbestos fibres, the claimants are taken in law to have proved that the defendants materially contributed to their illness.
169 While that is sufficient for the decision of the appeals, Mr Stewart urged that, if minded to apply some version of the principle in McGhee’s case, the House should define its scope. He pointed out that the speeches in McGhee’s case had left doubt as to the scope of the principle that the House had been applying and the decision of the Court of Appeal in Wilsher’s case had shown only too clearly that it could be extended too far. It is indeed plain that, as Lord Nicholls of Birkenhead has observed, considerable restraint is called for in using the principle. Identifying, at an abstract level, the defining characteristics of the cases where it is, none the less, proper to apply the principle is far from easy. The common law naturally and traditionally shies away from such generalisations especially in a developing area of the law. But, having regard to the cases cited by counsel and also, in particular, to the
cases and textbooks on the German law referred to in van Gerven Tort Law, pp 444-447 and 459-461, I would tentatively suggest that certain conditions are necessary, but may not always be sufficient, for applying the principle. All the criteria are satisfied in the present cases.
170 First, the principle is designed to resolve the difficulty that arises where it is inherently impossible for the claimant to prove exactly how his injury was caused. It applies, therefore, where the claimant has proved all that he possibly can, but the causal link could only ever be established by scientific investigation and the current state of the relevant science leaves it uncertain exactly how the injury was caused and, so, who caused it. McGhee’s case and the present cases are examples. Secondly, part of the underlying rationale of the principle is that the defendant’s wrongdoing has materially increased the risk that the claimant will suffer injury. It is therefore essential not just that the defendant’s conduct created a material risk of injury to a class of persons but that it actually created a material risk of injury to the claimant himself. Thirdly, it follows that the defendant’s conduct must have been capable of causing the claimant’s injury. Fourthly, the claimant must prove that his injury was caused by the eventuation of the kind of risk created by the defendant’s wrongdoing. In McGhee’s case, for instance, the risk created by the defenders’ failure was that the pursuer would develop dermatitis due to brick dust on his skin and he proved that he had developed dermatitis due to brick dust on his skin. By contrast, the principle does not apply where the claimant has merely proved that his injury could have been caused by a number of different events, only one of which is the eventuation of the risk created by the defendant’s wrongful act or omission. Wilsher’s case is an example. Fifthly, this will usually mean that the claimant must prove that his injury was caused, if not by exactly the same agency as was involved in the defendant’s wrongdoing, at least by an agency that operated in substantially the same way. A possible example would be where a workman suffered injury from exposure to dusts coming from two sources, the dusts being particles of different substances each of which, however, could have caused his injury in the same way. Without having heard detailed argument on the point, I incline to the view that the principle was properly applied by the Court of Appeal in Fitzgerald v Lane [1987] 2 All ER 455, [1987] QB 781. Sixthly, the principle applies where the other possible source of the claimant’s injury is a similar wrongful act or omission of another person, but it can also apply where, as in McGhee’s case, the other possible source of the
injury is a similar, but lawful, act or omission of the same defendant. I reserve my opinion as to whether the principle applies where the other possible source of injury is a similar but lawful act or omission of someone else or a natural occurrence.
171 For these reasons I was in favour of allowing the appeals and of making the appropriate orders in each of the cases.
Durham v BAI (Run Off) Ltd
Supreme Court [2012] 3 All ER 1161
LORD MANCE
[58] Lord Phillips in his [dissenting] judgment addresses the basis of Fairchild’s case in the light of Barker v Corus (UK) Ltd, the Act and Sienkiewicz’s case. He accepts that, if Fairchild’s case is now correctly to be understood as a special rule deeming employers who have exposed an employee to asbestos to have caused any subsequently suffered mesothelioma, then the insurance policies should apply (para [109] . . .). But he concludes that Fairchild’s case must be understood as creating liability not for the disease, but ‘for the creation of the risk of causing the disease’. It
follows in his view that employers and employees gain no assistance from the special rule in asserting that mesothelioma suffered by any person was caused or initiated in any particular policy period. On this basis, even though the insurances respond to injuries caused or initiated during their periods, the employers and employees fail for want of proof.
[59] It is not fruitful to repeat the exercise undertaken in Barker v Corus (UK) Ltd of examining in detail the significance of the speeches in Fairchild’s case. The House was not agreed about this in Barker’s case, but the majority speeches of Lords Hoffmann, Scott and Walker were at pains to reject any analysis of Fairchild’s case as proceeding upon a fiction that each exposure had caused or materially contributed to the disease: see [2006] 3 All ER 785 at [31], [61] and [104], [2006] 2 AC 572; they each also referred to the liability created by Fairchild’s case as being not for causing the disease, but for materially increasing the risk of the mesothelioma which was in fact suffered: see [31], [36] and [40], [53], [61] and [113]. Lord Rodger (dissenting) perceived the majority to be misinterpreting Fairchild’s case by failing to acknowledge that it was based on an equation of materially increasing risk with materially contributing to causation, an equation which he thought had been accepted as sufficient causation in Bonnington Castings Ltd v Wardlaw [1956] 1 All ER 615, [1956] AC 613 and McGhee v National Coal Board [1972] 3 All ER 1008, [1973] 1 WLR 1. It is on the apparently bright-line distinction said to have been drawn by the majority in Barker’s case between materially contributing to increasing the risk of, and causing, a disease that Lord Phillips now founds his judgment in these appeals.
[61] However, on further analysis, the distinction identified at [58]—[59], above proves more elusive. Even in Barker’s case itself, Lord Walker described exposing the employee to the risk of mesothelioma as being `equated with causing his injury’ and the result as ‘an explicit variation of the ordinary requirement as to causation’ (see [104]), and spoke of the rule as one ‘by which exposure to the risk of injury is equated with legal responsibility for that injury’ (at [109]). However, it is conceivable that he meant that the ordinary requirement of causation of the disease was entirely replaced by another liability-creating rule. It is in the later authority of Sienkiewicz’s case that the difficulty of drawing any clear-cut distinction between creating a risk and causation of the disease becomes most apparent. Lord Phillips there stated that ‘the rule in its current form’ [i.e. after the 2006
Act] was that the person responsible for the exposure ‘and thus creating a “material increase in risk” of the victim contracting the disease will be held to be jointly and severally liable for causing the disease’ (see [1]). Later, he said that the law was presently contained in Fairchild’s case and Barker’s case which had ‘developed the common law by equating “materially increasing the risk” with “contributing to the cause” in specified and limited circumstances’ (see [70]). That was the analysis of Fairchild’s case advanced by Lord Rodger in Barker v Corus (UK) Ltd ([2006] 3 All ER 785 at [73] and [83], [2006] 2 AC 572) but rejected there by the majority. Lord Brown in Sienkiewicz’s case spoke of a ‘more relaxed approach to causation’ ([2011] 2 All ER 857 at [178], [2011] 2 AC 229) and flexibility in the approach to causation (at [187]). I referred to Fairchild’s case and Barker’s case as involving a ‘special rule of causation’ (at [188]), and Lord Kerr referred to them as involving a ‘modification of the previously applicable legal rules in relation to the causation element in employers’ liability claims’ (at [196]) and to adjustments in the burden of proof (at [198] and [200]). Lord Rodger was, on the other hand, loyal to the majority view in Barker’s case by referring to liability as based on ‘materially increas[ing] the risk’ (at [113]), and Lord Dyson was cautious in speaking of materially increasing the risk of contracting the disease as ‘sufficient to satisfy the causal requirements for liability’ (see [207]).
[62] Lord Phillips has at para [123] . . . set out a passage from an extra-judicial commentary written by Lord Hoffmann in Perspectives on Causation (2011) p 8. In it, Lord Hoffmann describes the two ways in which the changes introduced by Fairchild’s and Barker’s cases could be characterised, one as changing ‘the causal requirements for an action for damages for mesothelioma . . . all that is necessary is to prove that the risk has been increased and that the specific exposure may have provided the actual agent’; the other as `creat[ing], exceptionally, a cause of action for the increased risk of mesothelioma, rather than for the disease itself’. Lord Hoffmann notes that the House in Barker’s case (Lord Rodger dissenting) adopted the second explanation of what had happened in Fairchild’s case. But in the next sentence, not quoted by Lord Phillips, Lord Hoffmann went on: ‘Parliament almost immediately reversed this decision by a statute giving effect to the first explanation, which had been advocated by Lord Rodger in his dissenting speech.’ Lord Hoffmann’s extra-judicial (or judicial) words cannot by themselves alter the true effect of a statute, but his comments do again show
that the suggested distinction is more fluid than might at first appear.
[63] It is relevant to look more closely at what Barker’s case decides. In Barker’s case, Lord Hoffmann spoke of Fairchild’s case as applying ‘an exceptional and less demanding test for the necessary causal link between the defendant’s conduct and the damage’ (see [2006] 3 All ER 785 at [1], [2006] 2 AC 572) and of ‘the requirement of a sufficient causal link between the defendant’s conduct and the claimant’s injury’ (see [17]). In his note in Perspectives on Causation, he picked up this language with references to the `causal requirements’ of the relevant rule and to the issues in cases of mesothelioma and analogous situations as involving the ‘causal requirements for an action for damages for mesothelioma’. Lady Hale in Barker’s case also viewed the common law rules governing the measure of recovery as ‘closely linked to the common law’s approach to causation’, and said that there was `no reason in principle why the former rules should not be modified as the latter approach is courageously developed to meet new situations’ (see [122]). At [123] and [124], she made clear that in her view the issue in Barker’s case could be seen as arising from the expanded perceptions or developed concept of causation which the law had accepted.
[64] These citations all suggest that it is both possible and appropriate to characterise the position achieved by the common law after Barker v Corus (UK) Ltd as one concerned with the issue of the ‘causal requirements’ or `causal link’, as between the defendant’s conduct and the disease, which the common law requires in order for there to be an action ‘for mesothelioma’. But analysis of the rule arrived at after Fairchild’s case and Barker’s case justifies further propositions. Despite the apparent clarity of the suggested distinction between liability for a risk and for a disease, no cause of action at all exists unless and until mesothelioma actually develops. Neither the exposure to asbestos nor the risk that this may one day lead to mesothelioma or some other disease is by itself an injury giving rise to any cause of action: see Rothwell v Chemical & Insulating Co Ltd, Re Pleural Plaques Litigation [2007] 4 All ER 1047, [2008] 1 AC 281; the House there decided that not even the emergence of pleural plaques ‘marking’ the past exposure to asbestos constituted injury for the purpose of giving a cause of action. In order to fall within the principle in Fairchild’s case and Barker’s case, the development of mesothelioma is a pre-condition: see Barker’s case [2006] 3 All ER 785 at [48], [53], [2006] 2 AC 572 per Lord Hoffmann and Lord Scott respectively. Lady Hale went further, stressing that she in fact agreed with
Lord Rodger’s view that ‘the damage which is the “gist” of these actions is the mesothelioma and its physical and financial consequences. It is not the risk of contracting mesothelioma’
[65] In reality, it is impossible, or at least inaccurate, to speak of the cause of action recognised in Fairchild’s case and Barker’s case as being simply `for the risk created by exposing’ someone to asbestos. If it were simply for that risk, then the risk would be the injury; damages would be recoverable for every exposure, without proof by the claimant of any (other) injury at all. That is emphatically not the law: see Rothwell’s case, and the statements in Barker’s case itself, cited above. The cause of action exists because the defendant has previously exposed the victim to asbestos, because that exposure may have led to the mesothelioma, not because it did, and because mesothelioma has been suffered by the victim. As to the exposure, all that can be said (leaving aside the remote possibility that mesothelioma may develop idiopathically) is that some exposure to asbestos by someone, something or some event led to the mesothelioma. In the present state of scientific knowledge and understanding, there is nothing that enables one to know or suggest that the risk to which the defendant exposed the victim actually materialised. What materialised was at most a risk of the same kind to which someone, who may or may not have been the defendant, or something or some event had exposed the victim. The actual development of mesothelioma is an essential element of the cause of action. In ordinary language, the cause of action is ‘for’ or ‘in respect of the mesothelioma, and in ordinary language a defendant who exposes a victim of mesothelioma to asbestos is, under the rule in Fairchild’s case and Barker’s case, held responsible ‘for’ and ‘in respect of both that exposure and the mesothelioma.
[66] This legal responsibility may be described in various ways . . . is over-simple to describe it as being for the risk. Another way is to view a defendant responsible under the rule as an ‘insurer’, but that too is hardly a natural description of a liability which is firmly based on traditional conceptions of tort liability as rooted in fault. A third way is to view it as responsibility for the mesothelioma, based on a ‘weak’ or ‘broad’ view of the `causal requirements’ or ‘causal link’ appropriate in the particular context to ground liability for the mesothelioma. This third way is entirely natural. It was adopted by Lords Reid and Wilberforce in McGhee v National Coal Board, by Lord Hoffmann, Lady Hale and (possibly) Lord Walker in Barker’s case and by Lord Hoffmann in his extra-judicial commentary. It
seems to have received the perhaps instinctive endorsement of a number of members of this court, including myself, in Sienkiewicz’s case. Ultimately, there is no magic about concepts such as causation or causal requirements, wherever they appear. They have the meanings assigned to them and understood in ordinary usage in their context. A logician might disagree with a reference to causation or a causal link in a particular context, but that is not the test of meaning: see Lord Wilberforce’s words in McGhee’s case [1972] 3 All ER 1008 at 1012 . . . The present appeals concern the meanings we assign to the concept of causation, first in the context of considering employers’ liability to their employees and then in considering the scope of employers’ insurance cover with respect to such liability . . .
[69] Ultimately, the present appeals raise the questions how the present employers’ liability insurance policies respond as a matter of construction in circumstances within the rule in Fairchild’s case and Barker’s case . . . The intention under the present insurances must be taken to have been that they would respond to whatever liability the insured employers might be held to incur within the scope of the risks insured and within the period in respect of which they were insured . . .
[71] Concluding, as I have done, that the present insurances covered employers’ liability for injuries or diseases ’caused’ during the relevant insurance periods, the question is whether they cover employers’ liability for mesothelioma arising under the rule in Fairchild’s case and Barker’s case from having exposed employees to asbestos during such periods. It is not in dispute that, if the rule is characterised as a rule of ‘deemed’ causation, then the policies must respond . . .
[72] The argument, accepted by Lord Phillips, is that the rule in Fairchild’s case and Barker’s case is not one of deemed causation of or, therefore, liability for the disease, but one of liability for the risk created by the exposure . . . I regard this distinction as too simple. The liability arises only because of the incurring of the disease and is for the disease. A condition of such liability is that the employer (negligently) exposed the victim to asbestos. The insurance policies, read as operating on a causation basis, are aimed at covering liability generated by employers’ activities during their insurance periods . . . ; unless liability for mesothelioma flowing from negligent exposure during an insurance period is covered by the policies, this aspect of employers’ activities will not in practice be covered at all.
[73] In my view, these considerations justify a conclusion that, for the
purposes of the insurances, liability for mesothelioma following upon exposure to asbestos created during an insurance period involves a sufficient `weak’ or ‘broad’ causal link for the disease to be regarded as ’caused’ within the insurance period. It would, I think, have been anomalous and unjust if the law by ‘deeming’ there to have been causation of the disease could have created policy liability (which is common ground), but the law by insisting that the liability in respect of mesothelioma was for the risk of causation achieved a quite different result. As I have sought to show, it is not in any event accurate to treat the liability as being either solely or strictly for the risk. The risk is no more than an element or condition necessary to establish liability for the mesothelioma. The reality, reinforced by provisions in the 2006 [Compensation] Act, is that the employer is being held responsible for the mesothelioma.
[74] For this purpose, the law accepts a weak or broad causal link. The link is to exposure which may but cannot be shown on the ordinary balance of probabilities to have played a role in the actual occurrence of the disease. But for the purposes of the policies the negligent exposure of an employee to asbestos can properly be described as having a sufficient causal link or being sufficiently causally connected with subsequently arising mesothelioma for the policies to respond. The concept of a disease being ’caused’ during the policy period must be interpreted sufficiently flexibly to embrace the role assigned to exposure by the rule in Fairchild’s case and Barker’s case. Viewing the point slightly more broadly, if (as I have concluded) the fundamental focus of the policies is on the employment relationship and activities during the insurance period and on liability arising out of and in course of them, then the liability for mesothelioma imposed by the rule in my opinion fulfils precisely the conditions under which these policies should and do respond.
Gregg v Scott
House of Lords [2005] UKHL 2, [2005] 4 All ER 812
LORD NICHOLLS OF BIRKENHEAD (dissenting)
5 . . . I must mention the salient facts of this appeal . . . At the risk of over-simplification they can be summarised as follows. The defendant Dr Scott negligently diagnosed as innocuous a lump under the left arm of the claimant Mr Malcolm Gregg when in fact it was cancerous (non-Hodgkin’s lymphoma). This led to nine months’ delay in Mr Gregg receiving treatment. During this period his condition deteriorated by the disease spreading elsewhere. The deterioration in Mr Gregg’s condition reduced his prospects of disease-free survival for ten years from 42%, when he first consulted Dr Scott, to 25% at the date of the trial. The judge found that, if treated promptly, Mr Gregg’s initial treatment would probably have achieved remission without an immediate need for high dose chemotherapy. Prompt treatment would, at least initially, have prevented the cancer spreading to the left pectoral region.
6 However, the judge found also that, although Mr Gregg’s condition deteriorated and in consequence his prospects were reduced in this way, a better outcome was never a probability. It was not possible to conclude on the balance of probability that, in the absence of the negligence, Mr Gregg’s medical condition would have been better or that he would have avoided any particular treatment. Before the negligence Mr Gregg had a less than evens chance (45%) of avoiding the deterioration in his condition which ultimately occurred. The delay did not extinguish this chance but reduced it by roughly
half. The judge assessed this reduction at 20%. That was the extent to which the negligence reduced Mr Gregg’s prospects of avoiding the deterioration in his condition which ultimately occurred. The facts can be found more fully stated in the judgments of the Court of Appeal ([2002] EWCA Civ 1471, (2003) 71 BMLR 16) and in the speech of my noble and learned friend Lord Phillips of Worth Matravers.
7 On these findings the trial judge, Judge Inglis, dismissed the claim. He considered he was driven to this conclusion by the reasoning of your Lordships’ House in Hotson v East Berkshire Area Health Authority [1987] 2 All ER 909, [1987] AC 750. The Court of Appeal by a majority (Simon Brown and Mance LJJ, Latham LJ dissenting) dismissed Mr Gregg’s appeal.
Past facts and future prospects
8 In order to set the question now before the House in its legal perspective I must next say something about the common law approach to proof of actionable damage, that is, damage which the law regards as founding a claim for compensation. It is trite law that in the ordinary way a claimant must prove the facts giving rise to a cause of action against the defendant. Where the claim is based on negligence the facts to be proved include those constituting actionable damage as well as those giving rise to the existence of a duty of care and its breach.
9 In the normal way proof of the facts constituting actionable damage calls for proof of the claimant’s present position and proof of what would have been the claimant’s position in the absence of the defendant’s wrongful act or omission. As to what constitutes proof, traditionally the common law has drawn a distinction between proof of past facts and proof of future prospects. A happening in the past either occurred or it did not. Whether an event happened in the past is a matter to be established in civil cases on the balance of probability. If an event probably happened no discount is made for the possibility it did not. Proof of future possibilities is approached differently. Whether an event will happen in the future calls for an assessment of the likelihood of that event happening, because no one knows for certain what will happen in the future.
10 This distinction between past and future is applied also when deciding what would have happened in the past or future but for a past happening such as the defendant’s negligent act. What would have happened in the past but for something which happened in the past is, at least generally, a question
decided by the courts on the all-or-nothing basis of the balance of probability. On this the authorities are not altogether consistent, but this seems to be the generally accepted practice. In contrast, what would have happened in the future but for something which happened in the past calls for an assessment of likelihood . . .
13 This sharp distinction between past events and future possibilities is open to criticism. Whether an event occurred in the past can be every bit as uncertain as whether an event is likely to occur in the future. But by and large this established distinction works well enough. It has a comfortable simplicity which accords with everyday experience of the difference between knowing what happened in the past and forecasting what may happen in the future.
14 In practice the distinction is least satisfactory when applied to hypothetical events (what would have happened had the wrong not been committed). The theory underpinning the all-or-nothing approach to proof of past facts appears to be that a past fact either happened or it did not and the law should proceed on the same footing. But the underlying certainty, that a past fact happened or it did not, is absent from hypothetical facts. By definition hypothetical events did not happen in the past, nor will they happen in the future. They are based on false assumptions. The defendant’s wrong precluded them from ever materialising.
Loss of an opportunity or chance as actionable damage
15 It is perhaps not surprising therefore that it is principally in the field of hypothetical past events that difficulties have arisen in practice. Sometimes, whether a claimant has suffered actionable damage cannot fairly be decided on an all-or-nothing basis by reference to what, on balance of probability, would have happened but for the defendant’s negligence. Sometimes this would be too crude an approach. What would have happened in the absence of the defendant’s negligence is altogether too uncertain for the all-or-nothing approach to be satisfactory. In some cases what the claimant lost by the negligence was the opportunity or chance to achieve a desired result whose achievement was outside his control and inherently uncertain. The defendant’s wrong consisted of depriving the claimant of a chance he would otherwise have had to achieve a desired outcome.
16 Then, the greater the uncertainty surrounding the desired future outcome, the less attractive it becomes to define the claimant’s loss by whether or not, on balance of probability, he would have achieved the desired
outcome but for the defendant’s negligence. This definition of the claimant’s loss becomes increasingly unattractive because, as the uncertainty of outcome increases, this way of defining the claimant’s loss accords ever less closely with what in practice the claimant had and what in practice he lost by the defendant’s negligence.
17 In order to achieve a just result in such cases the law defines the claimant’s actionable damage more narrowly by reference to the opportunity the claimant lost, rather than by reference to the loss of the desired outcome which was never within his control. In adopting this approach the law does not depart from the principle that the claimant must prove actionable damage on the balance of probability. The law adheres to this principle but defines actionable damage in different, more appropriate terms. The law treats the claimant’s loss of his opportunity or chance as itself actionable damage. The claimant must prove this loss on balance of probability. The court will then measure this loss as best it may. The chance is to be ignored if it was merely speculative, but evaluated if it was substantial: see Davies v Taylor [1972] 3 All ER 836 at 838, [1974] AC 207 at 212, per Lord Reid.
18 Some familiar examples will suffice. A woman who was wrongly deprived of the chance of being one of the winners in a beauty competition was awarded damages for loss of a chance. The court did not attempt to decide on balance of probability the hypothetical past event of what would have happened if the claimant had been duly notified of her interview: Chaplin v Hicks [1911] 2 KB 786, [1911-13] All ER Rep 224. When a solicitor’s failure to issue a writ in time deprived a claimant of the opportunity to pursue court proceedings damages were not assessed on an all¬or-nothing basis by reference to what probably would have been the outcome if the proceedings had been commenced in time. The court assessed what would have been the claimant’s prospects of success in the proceedings which the solicitor’s negligence prevented him from pursuing: Kitchen v Royal Air Forces Association [1958] 2 All ER 241, [1958] 1 WLR 563. When an employer negligently supplied an inaccurate character reference, the employee did not need to prove that, but for the negligence, he would probably have been given the new job. The employee only had to prove he lost a reasonable chance of employment, which the court would evaluate: Spring v Guardian Assurance plc [1994] 3 All ER 129 at 154, [1995] 2 AC 296 at 327.
19 In Allied Maples Group Ltd v Simmons & Simmons (a firm) [1995] 4 All
ER 907, [1995] 1 WLR 1602 a solicitor’s negligence deprived the claimant of an opportunity to negotiate a better bargain. The Court of Appeal applied the `loss of chance’ approach. Stuart-Smith LJ ([1995] 4 All ER 907 at 915, [1995] 1 WLR 1602 at 1611) regarded the case as one of those where ‘the plaintiff’s loss depends on the hypothetical action of a third party, either in addition to action by the plaintiff . . . or independently of it’. It is clear that Stuart-Smith LJ did not intend this to be a precise or exhaustive statement of the circumstances where loss of a chance may constitute actionable damage and his observation should not be so understood.
Medical negligence
20 Against this background I turn to the primary question raised by this appeal: how should the loss suffered by a patient in Mr Gregg’s position be identified? The defendant says ‘loss’ is confined to an outcome which is shown, on balance of probability, to be worse than it otherwise would have been. Mr Gregg must prove that, on balance of probability, his medical condition after the negligence was worse than it would have been in the absence of the negligence. Mr Gregg says his ‘loss’ includes proved diminution in the prospects of a favourable outcome. Dr Scott’s negligence deprived him of a worthwhile chance that his medical condition would not have deteriorated as it did . . .
Identifying a lost chance in medical negligence cases
34 I come next to a further twist in the story. It concerns an additional complication. It is a difficult part of this appeal. With ‘loss of chance’ cases such as Chaplin v Hicks [1911] 2 KB 786, [1911-13] All ER Rep 224 identifying the ‘chance’ the claimant lost is straightforward enough . . .
35 The position with medical negligence claims is different. The patient’s actual condition at the time of the negligence will often be determinative of the answer to the crucially important hypothetical question of what would have been the claimant’s position in the absence of the negligence. Hotson v East Berkshire Area Health Authority [1987] 2 All ER 909, [1987] AC 750 is an instance of this. The relevant factual question concerning Stephen Hotson’s condition immediately prior to the negligence was whether his fall from the tree had left sufficient blood vessels intact to keep his left femoral epiphysis alive. The answer to this question of actual fact ipso facto provided
the answer to the vital hypothetical question: would avascular necrosis have been avoided if Stephen Hotson’s leg had been treated promptly? The answer to the first question necessarily provided the answer to the second question, because the second question is no more than a mirror image of the first. Built into the formulation of the first question was the answer to the second question.
36 This is not always so. Many cases are not so straightforward. Sometimes it is not possible to frame factual questions about a patient’s condition which are (a) susceptible of sure answer and also (b) determinative of the outcome for the patient. As already noted, limitations on scientific and medical knowledge do not always permit this to be done. There are too many uncertainties involved in this field.
37 The present case is a good example. Identifying the nature and extent of Mr Gregg’s cancer at the time of the mistaken diagnosis (the first question), so far as this could be achieved with reasonable certainty, did not provide a simple answer to what would have been the outcome had he been treated promptly (the second question). There were several possible outcomes. Recourse to past experience in other cases, that is statistics, personalised so far as possible, was the best that could be done. These statistics expressed the various possible outcomes in percentage terms of likelihood . . .
41 . . . The question in the present, ‘Gregg’ type of case concerns how the law should proceed when, a patient’s condition at the time of the negligence having been duly identified on the balance of probability with as much particularity as is reasonably possible, medical opinion is unable to say with a reasonable degree of certainty what the outcome would have been if the negligence had not occurred.
42 In principle, the answer to this question is clear and compelling. In such cases, as in the economic ‘loss of chance’ cases, the law should recognise the manifestly unsatisfactory consequences which would follow from adopting an all-or-nothing balance of probability approach as the answer to this question. The law should recognise that Mr Gregg’s prospects of recovery had he been treated promptly, expressed in percentage terms of likelihood, represent the reality of his position so far as medical knowledge is concerned. The law should be exceedingly slow to disregard medical reality in the context of a legal duty whose very aim is to protect medical reality. In these cases a doctor’s duty to act in the best interests of his patient involves maximising the patient’s recovery prospects, and doing so whether the
patient’s prospects are good or not so good. In the event of a breach of this duty the law must fashion a matching and meaningful remedy. A patient should have an appropriate remedy when he loses the very thing it was the doctor’s duty to protect. To this end the law should recognise the existence and loss of poor and indifferent prospects as well as those more favourable.
[43] Application of the all-or-nothing balance of probability approach in the ‘Gregg’ type of cases would not achieve this object. In such cases the law should therefore put aside this approach when considering what would have happened had there been no negligence. It cannot be right to adopt a procedure having the effect that, in law, a patient’s prospects of recovery are treated as non-existent whenever they exist but fall short of 50%. If the law were to proceed in this way it would deserve to be likened to the proverbial ass. Where a patient’s condition is attended with such uncertainty that medical opinion assesses the patient’s recovery prospects in percentage terms, the law should do likewise. The law should not, by adopting the all-or¬nothing balance of probability approach, assume certainty where none in truth exists: see Deane J in Commonwealth of Australia v Amann Aviation Pty Ltd (1991) 104 ALR 1 at 42, (1991) 174 CLR 64 at 124. The difference between good and poor prospects is a matter going to the amount of compensation fairly payable, not to liability to make payment at all. As Dore J said Herskovits v Group Health Cooperative of Puget Sound (1983) 664 P 2d 474 at 477:
`To decide otherwise would be a blanket release from liability for doctors and hospitals any time there was less than a 50% chance of survival, regardless of how flagrant the negligence.’
44 The way ahead must surely be to recognise that where a patient is suffering from illness or injury and his prospects of recovery are attended with a significant degree of medical uncertainty, and he suffers a significant diminution of his prospects of recovery by reason of medical negligence whether of diagnosis or treatment, that diminution constitutes actionable damage. This is so whether the patient’s prospects immediately before the negligence exceeded or fell short of 50%. ‘Medical uncertainty’ is uncertainty inherent in the patient’s condition, uncertainty which medical opinion cannot resolve. This is to be contrasted with uncertainties arising solely from differences of view expressed by witnesses. Evidential uncertainties of this character should be resolved in the usual way.
45 This approach would represent a development of the law. So be it. If the common law is to retain its legitimacy it must remain capable of development. It must recognise the great advances made in medical knowledge and skills. It must recognise also the medical uncertainties which still exist. The law must strive to achieve a result which is fair to both parties in present-day conditions. The common law’s ability to develop in this way is its proudest boast . . .
LORD HOFFMANN: . . .
64 The question which has given rise to this appeal is whether Dr Scott’s negligence caused injury to Mr Gregg . . . The expert witnesses treated a cure as meaning survival for more than ten years . . . What the delay [did], according to the experts, was to reduce the chances of survival for more than ten years . . . from 42% to 25% . . .
Loss of chance
72 .. submission was that reduction in the prospect of a favourable outcome (“loss of a chance”) should be a recoverable head of damage. There are certainly cases in which it is. Chaplin v Hicks [1911] 2 KB 786, [1911¬13] All ER Rep 224 is a well-known example. The question is whether the principle of that case can apply to a case of clinical negligence such as this.
73 The answer can be derived from three cases in the House of Lords: Hotson v East Berkshire Area Health Authority [1987] 2 All ER 909, [1987] AC 750, Wilsher v Essex Area Health Authority [1988] 1 All ER 871, [1988] AC 1074, and Fairchild v Glenhaven Funeral Services Ltd [2002] 3 All ER 305, [2003] 1 AC 32
74 In Hotson’s case the claimant was a boy who broke his hip when he fell out of a tree. The hospital negligently failed to diagnose the fracture for five days. The hip joint was irreparably damaged by the loss of blood supply to its cartilage. The judge found that the rupture of the blood vessels caused by the fall had probably made the damage inevitable but there was a 25% chance that enough had remained intact to save the joint if the fracture had been diagnosed at the time. He and the Court of Appeal awarded the claimant damages for loss of the 25% chance of a favourable outcome.
75 The House of Lords unanimously reversed this decision. They said that the claimant had not lost a chance because, on the finding of fact, nothing
could have been done to save the joint. The outcome had been determined by what happened when he fell out of the tree. Either he had enough surviving blood vessels or he did not. That question had to be decided on a balance of probability and had been decided adversely to the claimant . . .
78 ………. rule was restrictively defined in terms which make it inapplicable in this case.
79 What these cases show is that, as Helen Reece points out in an illuminating article (Tosses of Chances in the Law’ (1996) 59 MLR 188) the law regards the world as in principle bound by laws of causality. Everything has a determinate cause, even if we do not know what it is. The blood-starved hip joint in Hotson’s case, the blindness in Wilsher’s case, the mesothelioma in Fairchild’s case; each had its cause and it was for the plaintiff to prove that it was an act or omission for which the defendant was responsible. The narrow terms of the exception made to this principle in Fairchild’s case only serves to emphasise the strength of the rule. The fact that proof is rendered difficult or impossible because no examination was made at the time, as in Hotson’s case, or because medical science cannot provide the answer, as in Wilsher’s case, makes no difference. There is no inherent uncertainty about what caused something to happen in the past or about whether something which happened in the past will cause something to happen in the future. Everything is determined by causality. What we lack is knowledge and the law deals with lack of knowledge by the concept of the burden of proof.
80 Similarly in the present case, the progress of Mr Gregg’s disease had a determinate cause. It may have been inherent in his genetic make-up at the time when he saw Mr Scott, as Hotson’s fate was determined by what happened to his thigh when he fell out of the tree. Or it may, as Mance LJ suggests, have been affected by subsequent events and behaviour for which Dr Scott was not responsible. Medical science does not enable us to say. But the outcome was not random; it was governed by laws of causality and, in the absence of a special rule as in Fairchild’s case, inability to establish that delay in diagnosis caused the reduction in expectation in life cannot be remedied by treating the outcome as having been somehow indeterminate . . .
82 One striking exception to the assumption that everything is determined by impersonal laws of causality is the actions of human beings. The law treats human beings as having free will and the ability to choose between different courses of action, however strong may be the reasons for them to
choose one course rather than another. This may provide part of the explanation for why in some cases damages are awarded for the loss of a chance of gaining an advantage or avoiding a disadvantage which depends upon the independent action of another person: see Allied Maples Group Ltd v Simmons & Simmons [1995] 4 All ER 907, [1995] 1 WLR 1602 and the cases there cited.
83 But the true basis of these cases is a good deal more complex. The fact that one cannot prove as a matter of necessary causation that someone would have done something is no reason why one should not prove that he was more likely than not to have done it. So, for example, the law distinguishes between cases in which the outcome depends upon what the claimant himself (McWilliams v Sir William Arrol & Co [1962] 1 All ER 623, [1962] 1 WLR 295) or someone for whom the defendant is responsible (Bolitho v City and Hackney Health Authority [1997] 4 All ER 771, [1998] AC 232) would have done, and cases in which it depends upon what some third party would have done. In the first class of cases the claimant must prove on a balance of probability that he or the defendant would have acted so as to produce a favourable outcome. In the latter class, he may recover for loss of the chance that the third party would have so acted. This apparently arbitrary distinction obviously rests on grounds of policy. In addition, most of the cases in which there has been recovery for loss of a chance have involved financial loss, where the chance can itself plausibly be characterised as an item of property, like a lottery ticket. It is however unnecessary to discuss these decisions because they obviously do not cover the present case . . .
….
90 . . . But a wholesale adoption of possible rather than probable causation as the criterion of liability would be so radical a change in our law as to amount to a legislative act. It would have enormous consequences for insurance companies and the National Health Service. In company with my noble and learned friends Lord Phillips of Worth Matravers and Baroness Hale of Richmond, I think that any such change should be left to Parliament .
LORD HOPE OF CRAIGHEAD ) (dissenting)
117 The key to the decision in this case lies, I think, in the way in which the appellant’s cause of action is identified. The description of it as a claim for
the loss of a chance is invited by the approach which the pleader has taken to the issue of damages. The description is apt in cases where the claim is for an economic loss or the loss of something to which the claimant has a right, such as in Chaplin v Hicks [1911] 2 KB 786, [1911-13] All ER Rep 224 and Kitchen v Royal Air Forces Association [1958] 2 All ER 241, [1958] 1 WLR 563. But that is not what this claim is about. It is, in essence, a claim for the loss and damage caused by the enlargement of the tumour due to the delay in diagnosis. It is for the loss and damage caused, in other words, by a physical injury which the appellant would not have suffered but for the doctor’s negligence. The fact that there was a physical injury has been proved on a balance of probabilities. So too has the fact that, in addition to pain and suffering, it caused a reduction in the prospects of a successful outcome. I would hold that, where these factors are present, the way is open for losses which are consequential on the physical injury to be claimed too. I do not think that those consequences of the physical injury should be treated as if they were the product of a separate cause of action from the pain and suffering. I see the reduction in the prospects of a successful outcome as one element among several in the claim for which there is a single cause—the enlargement of the tumour. This was a physical injury, the avoidance or minimisation of which was within the scope of the doctor’s duty of care when the appellant consulted him . . .
Conclusion
121 I would hold therefore that the significant reduction in the prospects of a successful outcome which the negligence caused is a loss for which the appellant is entitled to be compensated. If it is necessary to prove that this loss was caused by a physical injury, the enlargement of the tumour which the negligence caused was such an injury. But I agree with Lord Nicholls that the fact that the appellant was already suffering from illness at the date of the doctor’s negligence from which he had at that date significant prospects of recovery provides him with a cause of action for the reduction in those prospects that resulted from the negligence. I also agree with him that what has to be valued is what the appellant has lost, and that the principle on which that loss must be calculated is the same irrespective of whether the prospects were better or less than 50% . . .
170 My Lords, these reflections on the present case demonstrate, so it seems to me, that the exercise of assessing the loss of a chance in clinical negligence cases is not an easy one. Deductions cannot safely be drawn from statistics without expert assistance. I am all too well aware that I have drawn a number of deductions from the evidence in this case without expert assistance and that these are at odds with those that have been drawn by others. Even if some of my deductions can be shown to be unsound, I hope that I have demonstrated that analysis of the evidence in this case is no easy task. In contrast, the task of determining the effect of Dr Scott’s negligence on a balance of probabilities was very much easier. It is always likely to be much easier to resolve issues of causation on balance of probabilities than to identify in terms of percentage the effect that clinical negligence had on the chances of a favourable outcome. This reality is a policy factor that weighs against the introduction into this area of a right to compensation for the loss of a chance. A robust test which produces rough justice may be preferable to a test that on occasion will be difficult, if not impossible, to apply with confidence in practice . . .
190 The complications of this case have persuaded me that it is not a suitable vehicle for introducing into the law of clinical negligence the right to recover damages for the loss of a chance of a cure. Awarding damages for the reduction of the prospect of a cure, when the long term result of treatment is still uncertain, is not a satisfactory exercise. Where medical treatment has resulted in an adverse outcome and negligence has increased the chance of that outcome, there may be a case for permitting a recovery of damages that is proportionate to the increase in the chance of the adverse outcome. That is not a case that has been made out on the present appeal. I would uphold the conventional approach to causation that was applied by [the trial judge].
Conclusion
191 The judge concluded, on the data before him, that on balance of probabilities the delay in commencing Mr Gregg’s treatment that was attributable to Dr Scott’s negligence had not affected the course of his illness or his prospects of survival, which had never been as good as even. The data have now changed and Mr Gregg’s prospects of survival, despite the delay in commencing his treatment, seem good. The delay may well, however, have
meant that his path to what seems a likely cure has involved more intrusive treatment, and more pain, suffering and distress than would have been experienced had treatment commenced promptly. Those acting for Mr Gregg have, however, not sought to reopen the facts but have relied on the facts as found by the judge. On those facts I agree with Lord Hoffmann and Baroness Hale that this appeal must be dismissed.
Baker v Willoughby
House of Lords [1969] 3 All ER 1528
LORD REID: . . .
The appellant argues that the loss which he suffered from the car accident has not been diminished by his second injury. He still suffers from reduced
capacity to earn although these1 may have been to some extent increased. And he will suffer these losses for as long as he would have done because it
is not said that the second injury curtained his expectation of life.2 The respondent on the other hand argues that the second injury removed the very limb from which the earlier disability had stemmed, and that therefore no loss suffered thereafter can be attributed to the respondent’s negligence. He says that the second injury submerged or obliterated the effect of the first and that
all loss thereafter must be attributed to the second injury. The trial judge3 rejected this argument which he said was more ingenious than attractive. But
it was accepted by the Court of Appeal.
The respondent’s argument was succinctly put to your Lordships by his counsel. He could not run before the second injury; he cannot run now. But the cause is now quite different. The former cause was an injured leg but now he has no leg and the former cause can no longer operate. His counsel was inclined to agree that if the first injury had caused some neurosis or other mental disability, that disability might be regarded as still flowing from the first accident; even if it had been increased by the second accident the respondent might still have to pay for that part which he caused. I agree with that and I think that any distinction between a neurosis and a physical injury depends on a wrong view of what is the proper subject for compensation. A man is not compensated for the physical injury; he is compensated for the loss which he suffers as a result of that injury. His loss is not in having a stiff leg; it is in his inability to lead a full life, his inability to enjoy those amenities which depend on freedom of movement and his inability 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?
If it were the case that in the eye of the law an effect could only have one cause then the respondent might be right. It is always necessary to prove that any loss for which damages can be given was caused by the defendant’s negligent act. But it is commonplace that the law regards many events as having two causes; that happens whenever there is contributory negligence, for then the law says that the injury was caused both by the negligence of the defendant and by the negligence of the plaintiff. And generally it does not matter which negligence occurred first in point of time.
I see no reason why the appellant’s present disability cannot be regarded as having two causes, and if authority be needed for this I find it in Harwood v
Wyken Colliery Cos
……. These cases exemplify the general rule that a wrongdoer must take the plaintiff (or his property) as he finds him: that may be to his advantage or disadvantage. In the present case the robber is not responsible or liable for the damage caused by the respondent; he would only have to pay for additional loss to the appellant by reason of his now having an artificial limb instead of a stiff leg .
If . . . later injury suffered before the date of the trial either reduces the disabilities from the injury for which the defendant is liable, or shortens the period during which they will be suffered by the plaintiff then the defendant will have to pay less damages. But if the later injuries merely become a concurrent cause of the disabilities caused by the injury inflicted by the defendant, then in my view they cannot diminish the damages . . .
Finally, I must advert to the pain suffered and to be suffered by the appellant as a result of the car accident. If the result of the amputation was that the appellant suffered no more pain thereafter, then he could not claim for pain after the amputation which he would never suffer. But the facts with
regard to this are not clear, the amount awarded for pain subsequent to the date of the amputation was probably only a small part of the £1,600 damages and counsel for the respondent did not make a point of this. So in these circumstances we can neglect this matter . . .
LORD PEARSON: . . .
There is a plausible argument for the respondent on the following lines. The original accident, for which the respondent is liable, inflicted on the appellant a permanently injured left ankle, which caused pain from time to time, diminished his mobility and so reduced his earning capacity, and was likely to lead to severe arthritis. The proper figure of damages for those consequences of the accident, as assessed by the judge before making his apportionment, was £1,600. That was the proper figure for those consequences if they were likely to endure for a normal period and run a normal course. But the supervening event, when the robbers shot the appellant in his left leg, necessitated an amputation of the left leg above the knee. The consequences of the original accident therefore have ceased. He no longer suffers pain in his left ankle, because there no longer is a left ankle. He will never have the arthritis. There is no longer any loss of mobility through stiffness or weakness of the left ankle, because it is no longer there. The injury to the left ankle, resulting from the original accident, is not still operating as one of two concurrent causes both producing discomfort and disability. It is not operating at all nor causing anything. The present state of disablement, with the stump and the artificial leg on the left side, was caused wholly by the supervening event and not at all by the original accident. Thus the consequences of the original accident have been submerged and obliterated by the greater consequences of the supervening event.
That is the argument, and it is formidable. But it must not be allowed to succeed, because it produces manifest injustice. The supervening event has not made the appellant less lame nor less disabled nor less deprived of amenities. It has not shortened the period over which he will be suffering. It has made him more lame, more disabled, more deprived of amenities. He should not have less damages through being worse off than might have been expected.
The nature of the injustice becomes apparent if the supervening event is treated as a tort (as indeed it was) and if one envisages the appellant suing the robbers who shot him. They would be entitled, as the saying is, to ‘take the
plaintiff as they find him’. (Performance Cars Ltd v Abraham.6) They have not injured and disabled a previously fit and able-bodied man. They have only made an already lame and disabled man more lame and more disabled. Take, for example, the reduction of earnings. The original accident reduced his earnings from Ex per week to Ey per week, and the supervening event further reduced them from Ey per week to £z per week. If the respondent’s argument is correct, there is, as counsel for the appellant has pointed out, a gap. The appellant recovers from the respondent the Ex-y not for the whole period of the remainder of his working life, but only for the short period up to the date of the supervening event. The robbers are liable only for the £y-z
from the date of the supervening event onwards. In the Court of Appeal7 an ingenious attempt was made to fill the gap by holding that the damages recoverable from the later tortfeasors (the robbers) would include a novel head of damage, viz., the diminution of the appellant’s damages recoverable from the original tortfeasor (the respondent). I doubt whether that would be an admissible head of damage; it looks too remote. In any case it would not help the appellant, if the later tortfeasors could not be found or were indigent and uninsured. These later tortfeasors cannot have been insured in respect of the robbery which they committed.
I think a solution of the theoretical problem can be found in cases such as this by taking a comprehensive and unitary view of the damage caused by the original accident. Itemisation of the damages by dividing them into heads and sub-heads is often convenient, but is not essential. In the end judgment is given for a single lump sum of damages and not for a total of items set out under heads and sub-heads. The original accident caused what may be called a ‘devaluation’ of the plaintiff, in the sense that it produced a general reduction of his capacity to do things, to earn money and to enjoy life. For that devaluation the original tortfeasor should be and remain responsible to the full extent, unless before the assessment of the damages something has happened which either diminishes the devaluation (e.g. if there is an unexpected recovery from some of the adverse effects of the accident) or by shortening the expectation of life diminishes the period over which the plaintiff will suffer from the devaluation. If the supervening event is a tort, the second tortfeasor should be responsible for the additional devaluation caused by him . . .
BARONESS HALE OF RICHMOND: . . .
223 Until now, the gist of the action for personal injuries has been damage to the person. My negligence probably caused the loss of your leg: I pay you the full value of the loss of the leg (say £100,000). My negligence probably did not cause the loss of your leg. I do not pay you anything. Compare the loss of a chance approach: my negligence probably caused a reduction in the chance of your keeping that leg: I pay you the value of the loss of your leg, discounted by the chance that it would have happened anyway. If the chance of saving the leg was very good, say 90%, the claimant still gets only 90% of his damages, say £90,000. But if the chance of saving the leg was comparatively poor, say 20%, the claimant still gets £20,000. So the claimant ends up with less than full compensation even though his chances of a more favourable outcome were good. And the defendant ends up paying substantial sums even though the outcome is one for which by definition he cannot be shown to be responsible.
224 Almost any claim for loss of an outcome could be reformulated as a claim for loss of a chance of that outcome. The implications of retaining them both as alternatives would be substantial. That is, the claimant still has the prospect of 100% recovery if he can show that it is more likely than not that the doctor’s negligence caused the adverse outcome. But if he cannot show that, he also has the prospect of lesser recovery for loss of a chance. If . . . it would in practice always be tempting to conclude that the doctor’s negligence had affected his chances to some extent, the claimant would almost always get something. It would be a ‘heads you lose everything, tails I win something’ situation. But why should the defendant not also be able to redefine the gist of the action if it suits him better?
225 The appellant in this case accepts that the proportionate recovery effect must cut both ways. If the claim is characterised as loss of a chance, those with a better than evens chance would still only get a proportion of the full value of their claim. But I do not think that he accepts that the same would
apply in cases where the claim is characterised as loss of an outcome. In that case there is no basis for calculating the odds. If the two are alternatives available in every case, the defendant will almost always be liable for something. He will have lost the benefit of the 50% chance that causation cannot be proved. But if the two approaches cannot sensibly live together, the claimants who currently obtain full recovery on an adverse outcome basis might in future only achieve a proportionate recovery. This would surely be a case of two steps forward, three steps back for the great majority of straightforward personal injury cases. In either event, the expert evidence would have to be far more complex than it is at present. Negotiations and trials would be a great deal more difficult. Recovery would be much less predictable both for claimants and for defendants’ liability insurers. There is no reason in principle why the change in approach should be limited to medical negligence. Whether or not the policy choice is between retaining the present definition of personal injury in outcome terms and redefining it in loss of opportunity terms, introducing the latter would cause far more problems in the general run of personal injury claims than the policy benefits are worth.
226 Much of the discussion in the cases and literature has centred round cases where the adverse outcome has already happened. The patient has lost his leg. Did the doctor’s negligence cause him to lose the leg? If not, did it reduce the chances of saving the leg? But in this case the most serious of the adverse outcomes has not yet happened, and (it is to be hoped) may never happen. The approach to causation should be the same for both past and future events. What, if anything, has the doctor’s negligence caused in this case? We certainly do not know whether it has caused this outcome, because happily Mr Gregg has survived each of the significant milestones along the way. Can we even say that it reduced the chances of a successful outcome, given that Mr Gregg has turned out to be one of the successful minority at each milestone? This is quite different from the situation in Hotson’s case, where the avascular necrosis had already happened . . . Mr Gregg faced a risk of an adverse outcome which happily has not so far materialised, serious though the effects of his illness, treatment and prognosis have been. The complexities of attempting to introduce liability for the loss of a chance of a more favourable outcome in personal injury claims have driven me, not without regret, to conclude that it should not be done . . .
Jobling v Associated Dairies Ltd
House of Lords [1981] 2 All ER 752
LORD WILBERFORCE: . . .
In an attempt to solve the present case, and similar cases of successive causes of incapacity according to some legal principle, a number of arguments have been invoked.
1. Causation arguments. The unsatisfactory character of these is demonstrated by the case of Baker v Willoughby [1970] AC 467, [1969] 3 All ER 1528. I think that it can now been seen that Lord Reid’s theory of concurrent causes even if workable on the particular facts of Baker v Willoughby (where successive injuries were sustained by the same limb) is as a general solution not supported by the authority he invokes (Harwood v Wyken Colliery Co [1913] 2 KB 158) or workable in other cases . . .
2. The ‘vicissitudes’ argument. This is that since, according to accepted doctrine, allowance, and if necessary some discount, has to be made in assessing loss of future earnings for the normal contingencies of life, amongst which ‘illness’ is normally enumerated, so, if one of these contingencies becomes actual before the date of trial, this actuality must be taken into account. Reliance is here placed on the apophthegm ‘the court should not speculate when it knows’. This argument has a good deal of attraction. But it has its difficulties: it raises at once the question whether a discount is to be made on account of all possible ‘vicissitudes’ or only on account of ‘non-culpable’ vicissitudes (i.e. such that if they occur there will be no cause of action against anyone, the theory being that the prospect of being injured by a tort is not a normally foreseeable vicissitude) or only on account of ‘culpable’ vicissitudes (such as per contra). And if this distinction is to be made how is the court to act when a discounted vicissitude happens before trial? Must it attempt to decide whether there was culpability or not? And how is it to do
this if, as is likely, the alleged culprit is not before it? This actual distinction between ‘culpable’ and ‘non-culpable’ events was made, with supporting argument, in the Alberta case of Penner v Mitchell [1978] 5 WWR 328. One may add to it the rider that, as pointed out by Dickson J in the Supreme Court of Canada in Andrews v Grand & Toy Alberta Ltd (1978) 83 DLR (3d) 452 at 470, there are in modern society many public and private schemes which cushion the individual against adverse circumstances. One then has to ask whether a discount should be made in respect of (a) such cases or (b) cases where there is no such cushion. There is indeed in the ‘vicissitude’ argument some degree of circularity, since a discount in respect of possible events would only be fair if the actual event, discounted as possible, were to be taken into account when happening. But the whole question is whether it should be. One might just as well argue from what happens in ‘actual’ cases to what should happen in discountable cases.
In spite of these difficulties, the ‘vicissitude’ argument is capable in some, perhaps many, cases of providing a workable and reasonably just rule, and I would certainly not discountenance its use, either in the present case or in others.
The fact, however, is that to attempt a solution of these and similar problems, where there are successive causes of incapacity in some degree, on classical lines (`the object of damages for tort is to place the plaintiff in as good a position as if etc’; ‘the defendant must compensate for the loss caused by his wrongful act, no more’; ‘the defendant must take the plaintiff as he finds him etc’) is, in many cases, no longer possible. We do not live in a world governed by the pure common law and its logical rules. We live in a mixed world where a man is protected against injury and misfortune by a whole web of rules and dispositions, with a number of timid legislative interventions. To attempt to compensate him on the basis of selected rules without regard to the whole must lead either to logical inconsistencies or to over- or under-compensation. As my noble and learned friend Lord Edmund-Davies has pointed out, no account was taken in Baker v Willoughby of the very real possibility that the plaintiff might obtain compensation from the Criminal Injuries Compensation Board. if he did in fact obtain this compensation he would, on the ultimate decision, be over-compensated.
In the present case, and in other industrial cases, there seems to me no justification for disregarding the fact that the injured man’s employer is insured (indeed since 1972 compulsorily insured) against liability to his
employees. The state has decided, in other words, on a spreading of risk. There seems to me no more justification for disregarding the fact that the plaintiff (presumably; we have not been told otherwise), is entitled to sickness and invalidity benefit in respect of his myelopathy, the amount of which may depend on his contribution record, which in turn may have been affected by his accident. So we have no means of knowing whether the plaintiff would be over-compensated if he were, in addition, to receive the assessed damages from his employer, or whether he would be under-compensated if left to his benefit. It is not easy to accept a solution by which a partially incapacitated man becomes worse off in terms of damages and benefit through a greater degree of incapacity. Many other ingredients, of weight in either direction, may enter into individual cases. Without any satisfaction I draw from this the conclusion that no general, logical or universally fair rules can be stated which will cover, in a manner consistent with justice, cases of supervening events, whether due to tortious, partially tortious, non-culpable or wholly accidental events. The courts can only deal with each case as best they can in a manner so as to provide just and sufficient but not excessive compensation, taking all factors into account. I think that this is what Baker v Willoughby did, and indeed that Lord Pearson reached his decision in this way; the rationalisation of the decision, as to which I at least have doubts, need and should not be applied to other cases. In the present case the Court of Appeal reached the unanswerable conclusion that to apply Baker v Willoughby to the facts of the present case would produce an unjust result, and I am willing to accept the corollary that justice, so far as it can be perceived, lies the other way and that the supervening myelopathy should not be disregarded. If rationalisation is needed, I am willing to accept the ‘vicissitudes’ argument as the best available. I should be more firmly convinced of the merits of the conclusion if the whole pattern of benefits had been considered, in however general a way. The result of the present case may be lacking in precision and rational justification, but so long as we are content to live in a mansion of so many different architectures this is inevitable.
I would dismiss the appeal.
LORD KEITH OF KINKEL: . . .
latent undetected condition which later develops into a disabling illness and the case where the inception of the illness occurs wholly at a later date. In the former case, so it was maintained, the illness would properly fall to be taken into account in diminution of damages, on the principle that the tortfeasor takes his victim as he finds him, but in the latter case it would not. There is no trace of the suggested distinction in any of the authorities, and in my opinion it is unsound and apt to lead to great practical difficulties, providing ample scope for disputation among medical men. What would be the position, it might be asked, of an individual having a constitutional weakness making him specially prone to illness generally, or as hereditary tendency to some specific disease?
I am . . . of opinion that the majority in Baker v Willoughby were mistaken in approaching the problems common to the case of a supervening tortious act and to that of supervening illness wholly from the point of view of causation. While it is logically correct to say that in both cases the original tort and the supervening event may be concurrent causes of incapacity, that does not necessarily, in my view, provide the correct solution. In the case of supervening illness, it is appropriate to keep in view that this is one of the ordinary vicissitudes of life, and when one is comparing the situation resulting from the accident with the situation, had there been no accident, to recognise that the illness would have overtaken the plaintiff in any event, so that it cannot be disregarded in arriving at proper compensation, and no more than proper compensation.
Additional considerations come into play when dealing with the problems arising where the plaintiff has suffered injuries from two or more successive and independent tortious acts. In that situation it is necessary to secure that the plaintiff is fully compensated for the aggregate effects of all his injuries. As Lord Pearson noted in Baker v Willoughby [1970] AC 467 at 495, [1969] 3 All ER 1528 at 1535 it would clearly be unjust to reduce the damages awarded for the first tort because of the occurrence of the second tort, damages for which are to be assessed on the basis that the plaintiff is already partially incapacitated. I do not consider it necessary to formulate any precise juristic basis for dealing with this situation differently from the case of supervening illness. It might be said that a supervening tort is not one of the ordinary vicissitudes of life, or that it is too remote a possibility to be taken into account, or that it can properly be disregarded because it carries its own remedy. None of these formulations, however, is entirely satisfactory. The
fact remains that the principle of full compensation requires that a just and practical solution should be found. In the event that damages against two successive tortfeasors fall to be assessed at the same time, it would be highly unreasonable if the aggregate of both awards were less than the total loss suffered by the plaintiff. The computation should start from an assessment of that total loss. The award against the second tortfeasor cannot in fairness to him fail to recognise that the plaintiff whom he injured was already to some extent incapacitated. In order that the plaintiff may be fully compensated, it becomes necessary to deduct the award so calculated from the assessment of the plaintiff’s total loss and award the balance against the first tortfeasor. If that be a correct approach, it follows that, in proceedings against the first tortfeasor alone, the occurrence of the second tort cannot be successfully relied on by the defendant as reducing the damages which he must pay. That, in substance, was the result of the decision in Baker v Willoughby, where the supervening event was a tortious act, and to that extent the decision was, in my view, correct.
Before leaving the case, it is right to face up to the fact that, if a non-tortious supervening event is to have the effect of reducing damages but a subsequent tortious act is not, there may in some cases be difficulty in ascertaining whether the event in question is or is not of a tortious character, particularly in the absence of the alleged tortfeasor. Possible questions of contributory negligence may cause additional complications. Such difficulties are real, but are not sufficient, in my view, to warrant the conclusion that the distinction between tortious and non-tortious supervening events should not be accepted. The court must simply do its best to arrive at a just assessment of damages in a pragmatical way in the light of the whole circumstances of the case.
My Lords, for these reasons I would dismiss the appeal.
LORD BRIDGE OF HARWICH: . . .
The vicissitudes principle itself, it seems to me, stems from the fundamental proposition of law that the object of every award of damages for monetary loss is to put the party wronged so far as possible in the same position, no better and no worse, as he would be in if he had not suffered the wrong in respect of which he claims. To assume that an injured plaintiff, if not injured, would have continued to earn his full wages for a full working life, is very probably to over-compensate him. To apply a discount in respect of possible
future loss of earnings arising from independent causes may be to under-compensate him. When confronted by future uncertainty, the court assesses the prospects and strikes a balance between these opposite dangers as best it can. But, when the supervening illness or injury which is the independent cause of loss of earning capacity has manifested itself before trial, the event has demonstrated that, even if the plaintiff had never sustained the tortious injury, his earnings would now be reduced or extinguished. To hold the tortfeasor, in this situation, liable to pay damages for a notional continuing loss of earnings attributable to the tortious injury is to put the plaintiff in a better position than he would be in if he had never suffered the tortious injury. Put more shortly, applying well-established principles for the assessment of damages at common law, when a plaintiff injured by the defendant’s tort is wholly incapacitated from earning by supervening illness or accidental injury, the law will no longer treat the tort as a continuing cause of any loss of earning capacity…
Chester v Afshar
House of Lords [2004] UKHL 41, [2004] 4 All ER 587
LORD STEYN:
A neurosurgeon advised her to undergo an elective lumbar surgical procedure. The procedure entails a 1%-2% chance of serious neurological damage arising from the operation. The claimant was entitled to be informed of this fact. In breach of the common law duty of care the surgeon failed to inform the claimant of the risk. The claimant reluctantly agreed to the operation. Three days after her consultation with the surgeon the claimant underwent the surgery. The claimant sustained serious neurological damage. In the result the very injury about which she should have been warned occurred. The surgeon had not been negligent in performing the operation: he did not increase the risks inherent in the surgery. On the other hand, if the claimant had been warned she would not have agreed to the operation. Instead she would have sought further advice on alternatives. The judge found that if the claimant had been properly warned the operation would not have taken place when it did, if at all. The judge was unable to find whether if the claimant had been duly warned she would with the benefit of further medical advice have given or refused consent to surgery. What is clear is that if she had agreed to surgery at a subsequent date, the risk attendant upon it would have been the same, ie 1%-2%. It is therefore improbable that she would have sustained neurological damage.
12 On these facts the judge found that the claimant had established a causal link between the breach and the injury she had sustained and held that the defendant was liable in damages. In a detailed and careful judgment the Court of Appeal (Hale LJ, Sir Christopher Slade and Sir Denis Henry ([2002] EWCA Civ 724, [2002] 3 All ER 552, [2003] QB 356)) upheld the conclusion of the judge.
13 Counsel for the surgeon submitted that it is contrary to general principles of tort law to award damages when a defendant’s wrong has not been proved to have increased the claimant’s exposure to risk. He argued that in order to establish causation in a case of a surgeon’s failure to warn a patient of a significant risk of injury, the patient must prove both that she would not have consented to run the relevant risk then and there, and that she would not, ultimately, have consented to run the relevant risk. The only qualification was the case where a claimant could prove an accelerated onset of injury. That the claimant could not do on the facts of the case. On analysis it was an all or nothing case. Counsel said that the injury that the claimant sustained was just a coincidence, a piece of abominable bad luck, like lightning striking a person. This was a powerful argument and persuasively
presented.
14 The legal context requires consideration of a number of other relevant factors. First, the nature of the correlative rights and duties of the patient and surgeon must be kept in mind. The starting point is that every individual of adult years and sound mind has a right to decide what may or may not be done with his or her body. Individuals have a right to make important medical decisions affecting their lives for themselves: they have the right to make decisions which doctors regard as ill advised. Surgery performed without the informed consent of the patient is unlawful. The court is the final arbiter of what constitutes informed consent. Usually, informed consent will presuppose a general warning by the surgeon of a significant risk of the surgery.
15 In the case before the House a single cause of action is under consideration, viz the tort of negligence . . .
16 A surgeon owes a legal duty to a patient to warn him or her in general terms of possible serious risks involved in the procedure. The only qualification is that there may be wholly exceptional cases where objectively in the best interests of the patient the surgeon may be excused from giving a warning. This is, however, irrelevant in the present case. In modern law medical paternalism no longer rules and a patient has a prima facie right to be informed by a surgeon of a small, but well established, risk of serious injury as a result of surgery.
17 Secondly, not all rights are equally important. But a patient’s right to an appropriate warning from a surgeon when faced with surgery ought normatively to be regarded as an important right which must be given effective protection whenever possible.
18 Thirdly, in the context of attributing legal responsibility, it is necessary to identify precisely the protected legal interests at stake. A rule requiring a doctor to abstain from performing an operation without the informed consent of a patient serves two purposes. It tends to avoid the occurrence of the particular physical injury the risk of which a patient is not prepared to accept. It also ensures that due respect is given to the autonomy and dignity of each patient . . .
19 Fourthly, it is a distinctive feature of the present case that but for the surgeon’s negligent failure to warn the claimant of the small risk of serious injury the actual injury would not have occurred when it did and the chance of it occurring on a subsequent occasion was very small. It could therefore be
said that the breach of the surgeon resulted in the very injury about which the claimant was entitled to be warned.
20 These factors must be considered in combination. But they must also be weighed against the undesirability of departing from established principles of causation, except for good reasons. The collision of competing ideas poses a difficult question of law.
21 That such problems do not necessarily have a single right answer is illustrated by the judgment of the Australian High Court in Chappel v Hart (1999) 2 LRC 341, (1998) 72 ALJR 1344. A surgeon failed to warn a patient of a small risk of an operation. She underwent the operation. In the result the very injury of which she should have been warned took place. As in the present case the position was that the patient would not have had the operation at the time and place when she did. If the patient had the operation on a subsequent occasion, the outcome would probably have been uneventful. On these facts the court decided by a majority of three (Gaudron, Gummow and Kirby JJ) to two (McHugh and Hayne JJ) that the patient was entitled to recover substantial damages from the surgeon for the physical injuries suffered as a result of the operation performed on her. The judgments are illuminating. For my part I found the dissenting judgment of McHugh J particularly powerful, and rightly counsel for the surgeon relied heavily on it. Chappel v Hart mirrors the issues and arguments in the present case. It will not serve any useful purpose to cite at length from the judgments. I also do not think a process of counting heads in a case such as Chappel v Hart is a particularly helpful exercise in regard to the issue before the House. At the very least, however, this Australian case reveals two fundamentally different approaches, the one favouring firm adherence to traditionalist causation techniques and the other a greater emphasis on policy and corrective justice.
22 The House was referred to a valuable body of academic literature which discusses problems such as arose in Chappel v Hart, and in the present case, in some detail. Not surprisingly, the authors approach the matter from slightly different angles. It is, however, fair to say that there is general support for the majority decision in Chappel v Hart, and for the view which prevailed in the Court of Appeal in the present case (see Cane ‘A Warning about Causation’ (1999) 115 LQR 21; Grubb ‘Clinical Negligence: Informed Consent and Causation’ (2002) 10 Med LRev 322; Honore ‘Medical Non-Disclosure, Causation and Risk: Chappel v Hart’ (1999) 7 Torts Law Journal 1; Jones “But For” Causation in Actions for Non-Disclosure of Risk’ (2002) 18 PN
192; Stapleton ‘Cause-in-Fact and the Scope of Liability for Consequences’ (2003) 119 LQR 388; Stanch ‘Taking the Consequences for Failure to Warn of Medical Risks’ (2000) 63 MLR 261)). The case note by the co-author of the seminal treatise on causation is particularly interesting. Professor Honore said:
`. . . does it follow that Mrs Hart should not recover? Or is this a case where courts are entitled to see to it that justice is done despite the absence of causal connection? I think it is the latter and for the following reason. The duty of a surgeon to warn of the dangers inherent in an operation is intended to help minimise the risk to the patient. But it is also intended to enable the patient to make an informed choice whether to undergo the treatment recommended and, if so, at whose hands and when. Dr Chappel violated Mrs Hart’s right to choose for herself, even if he did not increase the risk to her. Judges should vindicate rights that have been violated if they can do so consistently with the authority of statutes and decided cases. In this case the High Court did just this, in effect by making Dr Chappel, when he operated on Mrs Hart, strictly liable for any injury he might cause of the type against which he should have warned her. For Dr Chappel did cause the harm that Mrs Hart suffered, though not by the advice he failed to give her. He did so by operating on her and, though he operated with due care, he slit open her oesophagus with disastrous consequences. Morally he was responsible for the outcome of what he did . . . All the High Court has therefore done is to give legal sanction to an underlying moral responsibility for causing injury of the very sort against the risk of which the defendant should have warned her. Do the courts have power in certain cases to override causal considerations in order to vindicate a plaintiff’s rights? I believe they do though the right must be exercised with great caution.’ (See (1999) 7 Torts Law Journal 1 at 8.)
In my view Professor Honore was right to face up to the fact that Chappel v Hart—and therefore the present case—cannot neatly be accommodated within conventional causation principles. But he was also right to say that policy and corrective justice pull powerfully in favour of vindicating the patient’s right to know.
23 It is true that there is no direct English authority permitting a modification of the approach to the proof of causation in a case such as the
present. On the other hand, there is the analogy of Fairchild v Glenhaven Funeral Services Ltd . . . [2002] UKHL 22, [2002] 3 All ER 305, [2003] 1 AC 32 [p. 352, ante] which reveals a principled approach to such a problem . . . At the very least Fairchild’s case shows that where justice and policy demand it a modification of causation principles is not beyond the wit of a modern court.
24 Standing back from the detailed arguments, I have come to the conclusion that, as a result of the surgeon’s failure to warn the patient, she cannot be said to have given informed consent to the surgery in the full legal sense. Her right of autonomy and dignity can and ought to be vindicated by a narrow and modest departure from traditional causation principles.
25 On a broader basis I am glad to have arrived at the conclusion that the claimant is entitled in law to succeed. This result is in accord with one of the most basic aspirations of the law, namely to right wrongs. Moreover, the decision announced by the House today reflects the reasonable expectations of the public in contemporary society . . .
27 For these reasons as well as the reasons given by my noble and learned friends Lord Hope of Craighead and Lord Walker of Gestingthorpe I would dismiss the appeal.
McKew v Holland and Hannen and Cubitts (Scotland) Ltd
House of Lords [1969] 3 All ER 1621
LORD REID: . . .
In my view the law is clear. If a man is injured in such a way that his leg may give way at any moment he must act reasonably and carefully. It is quite possible that in spite of all reasonable care his leg may give way in circumstances such that as a result he sustains further injury. Then that second injury was caused by his disability which in turn was caused by the defender’s fault. But if the injured man acts unreasonably he cannot hold the defender liable for injury caused by his own unreasonable conduct. His unreasonable conduct is novus actus interveniens. The chain of causation has been broken and what follows must be regarded as caused by his own
conduct and not by the defender’s fault or the disability caused by it. Or one may say that unreasonable conduct of the pursuer and what follows from it is not the natural and probable result of the original fault of the defender or of the ensuing disability. I do not think that foreseeability comes into this. A defender is not liable for a consequence of a kind which is not foreseeable. But it does not follow that he is liable for every consequence which a reasonable man could foresee. What can be foreseen depends almost entirely on the facts of the case, and it is often easy to foresee unreasonable conduct or some other novus actus interveniens as being quite likely. But that does not mean that the defender must pay for damage caused by the novus actus. It only leads to trouble . . . if one tries to graft on to the concept of foreseeability some rule of law to the effect that a wrongdoer is not bound to foresee something which in fact he could readily foresee as quite likely to happen. For it is not at all unlikely or unforeseeable that an active man who has suffered such a disability will take some quite unreasonable risk. But if he does he cannot hold the defender liable for the consequences.
So in my view the question here is whether the second accident was caused by the appellant doing something unreasonable. It was argued that the wrongdoer must take his victim as he finds him and that that applies not only
to a thin skull8 but also to his intelligence. But I shall not deal with that argument because there is nothing in the evidence to suggest that the appellant is abnormally stupid. This case can be dealt with equally well by asking whether the appellant did something which a moment’s reflection would have shown him was an unreasonable thing to do.
He knew that this left leg was liable to give way suddenly and without warning. He knew that this stair was steep and that there was no handrail. He must have realised, if he had given the matter a moment’s thought, that he could only safely descend the stair if he either went extremely slowly and carefully so that he could sit down if his leg gave way, or waited for the assistance of his wife and brother-in-law. But he chose to descend in such a way that when his leg gave way he could not stop himself. I agree with what the Lord Justice-Clerk says at the end of his opinion and I think that this is sufficient to require this appeal to be dismissed.
But I think it right to say a word about the argument that the fact that the appellant made to jump when he felt himself falling is conclusive against him. When his leg gave way the appellant was in a very difficult situation. He had to decide what to do in a fraction of a second. He may have come to a
wrong decision; he probably did. But if the chain of causation had not been broken before this by his putting himself in a position where he might be confronted with an emergency, I do not think that he would put himself out of court by acting wrongly in the emergency unless his action was so utterly unreasonable that even on the spur of the moment no ordinary man would have been so foolish as to do what he did. In an emergency it is natural to try to do something to save oneself and I do not think that his trying to jump in this emergency was so wrong that it could be said to be . . . more than an error of judgment. But for the reasons already given I would dismiss this appeal.
Reeves v Metropolitan Police Commissioner
House of Lords [1999] UKHL 35, [1999] 3 All ER 897
LORD HOFFMANN:
My Lords, on 23 March 1990 Martin Lynch hanged himself in his cell in Kentish Town police station. He had been remanded in custody on charges of credit fraud and was also under investigation for handling stolen vehicles. He had made two previous attempts at suicide. One had been in a cell at Clerkenwell Magistrates’ Court three months earlier. The second was in a cell at Brent Magistrates’ Court that very morning. On each occasion he had tried to strangle himself with his belt. After the first incident, the police noted on his record that he was a suicide risk. When he was brought back to Kentish Town police station after the second incident, he was seen by a doctor. She found no other evidence of mental disturbance but gave instructions that, as a suicide risk, he should be frequently observed. An hour later, at 1.57 pm, a policeman looked through the open wicket hatch in his cell door and saw that he was lying on his bed. A few minutes later he used his shirt as a ligature to
hang himself by pushing it through the wicket hatch and securing it to the door. He was found by another policeman at 2.05 pm. Despite attempts at resuscitation, he died a week later.
The police and prison service have long been aware that prisoners are more than usually likely to attempt suicide or self-injury . . . The risk of suicide is particularly high among prisoners on remand facing a new environment and an uncertain future . . .
The plaintiff in this action is Mrs Sheila Reeves, who had lived with Mr Lynch for some years and had a child by him. She sues the Commissioner of Police of the Metropolis under the Fatal Accidents Act 1976 for negligently causing Mr Lynch’s death. The trial judge (Judge White) found that having regard to the fact that the police knew that Mr Lynch was a suicide risk, they owed him a duty to take reasonable care to prevent him from committing suicide while being held in custody. He also found that the police had been negligent and in breach of this duty by failing to shut the wicket hatch after he had been put in the cell. There has been no appeal against these two findings.
The judge found, however, that the breach of duty by the police did not cause Mr Lynch’s death. He was of sound mind and his judgment was not impaired. The sole cause of his death was therefore his deliberate act in killing himself. The judge thought that this result could be expressed in Latin either by the maxim volenti non fit injuria (Mr Lynch had consented to the injury he received) or by saying that his suicide was a novus actus interveniens…
Mrs Reeves appealed to the Court of Appeal ([1998] 2 All ER 381, [1999] QB 169). By a majority, the appeal was allowed. Lord Bingham of Cornhill CJ and Buxton LJ said that, as the police did not deny that they owed Mr Lynch a duty to take reasonable care to prevent him from committing suicide or that their breach of duty had enabled him to commit suicide, they could not say that their breach of duty was not a cause of his death. ‘So to hold,’ said Lord Bingham CJ ([1998] 2 All ER 381 at 403-404, [1999] QB 169 at 196) `would be to deprive the duty of meaningful content.’ . . .
The commissioner appeals to your Lordships’ House. Mr Pannick QC argued two points on his behalf. The first was the question of causation: was the breach of duty by the police a cause of Mr Lynch’s death? The way he put the answer was to say that the deliberate act of suicide, while of sound mind, was a novus actus interveniens which negatived the causal connection
between the breach of duty and the death. He said at first that he was going to argue the application of the maxim volenti non fit injuria as a separate point. But when it came down to it, he accepted that if the breach of duty was a cause of the death, he could not succeed on volenti non fit injuria. I think that is right. In the present case, volenti non fit injuria can only mean that Mr Lynch voluntarily caused his own death to the exclusion of any causal effect on the part of what was done by the police. So I think it all comes to the same thing: was the breach of duty by the police a cause of the death?
The other point argued by Mr Pannick was contributory negligence. The question of public policy or ex turpi causa non oritur actio, which had not found favour with any member of the Court of Appeal, was not pursued.
On the first question, Mr Pannick relied upon the general principle stated in Hart and Honore Causation in the Law (2nd edn, 1985) p. 136: `. . . the free, deliberate and informed act or omission of a human being, intended to exploit the situation created by defendant, negatives causal connection.’ (Authors’ emphasis). However, as Hart and Honore pp. 194-204 also point out there is an exception to this undoubted rule in the case in which the law imposes a duty to guard against loss caused by the free, deliberate and informed act of a human being. It would make nonsense of the existence of such a duty if the law were to hold that the occurrence of the very act which ought to have been prevented negatived causal connection between the breach of duty and the loss. This principle has been recently considered by your Lordships’ House in Empress Car Co (Abertillery) Ltd v National Rivers Authority [1998] 1 All ER 481, [1998] 2 WLR 350. In that case, examples are given of cases in which liability has been imposed for causing events which were the immediate consequence of the deliberate acts of third parties but which the defendant had a duty to prevent or take reasonable care to prevent.
Mr Pannick accepted this principle when the deliberate act was that of a third party. But he said that it was different when it was the act of the plaintiff himself. Deliberately inflicting damage on oneself had to be an act which negatived causal connection with anything which had gone before.
This argument is based upon the sound intuition that there is a difference between protecting people against harm caused to them by third parties and protecting them against harm which they inflict upon themselves. It reflects the individualist philosophy of the common law. People of full age and sound understanding must look after themselves and take responsibility for their
actions. This philosophy expresses itself in the fact that duties to safeguard from harm deliberately caused by others are unusual and a duty to protect a person of full understanding from causing harm to himself is very rare indeed. But, once it is admitted that this is the rare case in which such a duty is owed, it seems to me self-contradictory to say that the breach could not have been a cause of the harm because the victim caused it to himself.
Morritt LJ drew a distinction between a prisoner who was of sound mind and one who was not. He said that when a prisoner was of sound mind, ‘I find it hard to see how there is any material increase in the risk in any causative sense’ (see [1998] 2 All ER 381 at 398, [1999] QB 169 at 190). In Kirkham v Chief Constable of the Greater Manchester Police [1990] 3 All ER 246 at 259, [1990] 2 QB 283 at 289-290 Lloyd LJ said much the same. It seems to me, however, they were really saying that the police should not owe a person of sound mind a duty to take reasonable care to prevent him from committing suicide. If he wants to take his life, that is his business. He is a responsible human being and should accept the intended consequences of his acts without blaming anyone else. Volenti non fit injuria. The police might owe a general moral duty not to provide any prisoner with a means of committing suicide, whether he is of sound mind or not. Such a duty might even be enforceable by disciplinary measures. But the police did not owe Mr Lynch, a person of sound mind, a duty of care so as to enable him or his widow to bring an action in damages for its breach.My Lords, I can understand this argument, although I do not agree with it. It is not, however, the position taken by the commissioner. He accepts that he owed a duty of care to Mr Lynch to take reasonable care to prevent him from committing suicide. Mr Lynch could not rely on a duty owed to some other hypothetical prisoner who was of unsound mind. The commissioner does not seek to withdraw this concession on the ground that Mr Lynch has been found to have been of sound mind. For my part, I think that the commissioner is right not to make this distinction. The difference between being of sound and unsound mind, while appealing to lawyers who like clear-cut rules, seems to me inadequate to deal with the complexities of human psychology in the context of the stresses caused by imprisonment. The duty, as I have said, is a very unusual one, arising from the complete control which the police or prison authorities have over the prisoner, combined with the special danger of people in prison taking their own lives.
Mr Pannick also suggested that the principle of human autonomy might be
infringed by holding the commissioner liable. Autonomy means that every individual is sovereign over himself and cannot be denied the right to certain kinds of behaviour, even if intended to cause his own death. On this principle, if Mr Lynch had decided to go on hunger strike, the police would not have been entitled to administer forcible feeding. But autonomy does not mean that he would have been entitled to demand to be given poison, or that the police would not have been entitled to control his environment in non-invasive ways calculated to make suicide more difficult. If this would not infringe the principle of autonomy, it cannot be infringed by the police being under a duty to take such steps. In any case, this argument really goes to the existence of the duty which the commissioner admits rather than to the question of causation . . .
LORD HOBHOUSE OF WOODBOROUGH (dissenting)
…My Lords, in relation to … let me take two hypothetical situations, neither unduly fanciful. Suppose that the detainee is a political agitator whose primary motivation is to further a political cause. Such persons are liable to see self-destruction, in circumstances which they hope will attract as much publicity and media attention as possible, as an appropriate means of advancing their political cause. Can such a person, having taken advantage of a careless oversight by the police and carried out his purpose, vicariously bring an action against the police and recover
damages from them? Or suppose a detainee who and whose family are in serious financial difficulties and who, knowing what the Court of Appeal decided in the present case, says to himself ‘the best way for me to help those I love is to commit suicide’ and then carries out that purpose by taking advantage of a careless oversight. As Mr Pannick QC said in argument, he might even leave a suicide note for his wife telling her this. In cases such as these it would be surprising if the courts were to say that, notwithstanding the determinative, rational and deliberate choice of the deceased, that choice had not become the only legally relevant cause of the death. It would also in my judgment be contrary to principle . . .
I give these examples to illustrate the need to identify a dividing line unless one is to say that even in such cases the deliberate voluntary choice of the deceased, the quasi-plaintiff, can never break the chain of causation. The view accepted by the majority of the Court of Appeal reduces all such questions to an examination of the scope of the duty of care or remoteness (which in the context of the law of negligence is effectively the same thing: see Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd [1961] 1 All ER 404, [1961] AC 388). The reason why this is contrary to principle is that it is a basic rule of English law that a plaintiff cannot complain of the consequences of his own fully voluntary conduct—his own `free, deliberate and informed’ act: see Hart and Honore Causation in the Law (2nd edn, 1985) p. 136 (authors’ emphasis). This principle, overlooked by the plaintiff, is to be found in a variety of guises in most branches of the law. In the law of tort it overlaps with other principles and invites recourse to expressions (usually Latin maxims) not all of which have a consistent usage .
………
A number of principles are involved. First there is the fundamental principle of human autonomy. Where a natural person is not under any disability, that person has a right to choose his own fate. He is constrained in so far as his choice may affect others, society or the body politic. But, so far as he himself alone is concerned, he is entitled to choose. The choice to commit suicide is such a choice. A corollary of this principle is, subject to the important qualification to which I will refer, the principle that a person may not complain of the consequences of his own choices. This both reflects
coherent legal principle and conforms to the accepted use of the word cause: the person’s choice becomes, so far as he is concerned, the cause. The autonomy of the individual human confers the right and the responsibility.
To qualify as an autonomous choice, the choice made must be free and unconstrained—i.e. voluntary, deliberate and informed. If the plaintiff is under a disability, either through lack of mental capacity or lack of excess of age, the plaintiff will lack autonomy and will not have made a free and unconstrained choice. Child plaintiffs come into this category. Both as a matter of causation and the attribution of responsibility, their conduct does not (without more) remove the responsibility of the defendant or transfer the responsibility to the child plaintiff: see Yachuk v Oliver Blais Co Ltd [1949] 2 All ER 150, [1949] AC 386. Similarly, plaintiffs suffering from a temporary or a more serious loss of mental capacity (see Kirkham v Chief Constable of the Greater Manchester Police [1990] 3 All ER 246, [1990] 2 QB 283, Pallister v Waikato Hospital Board [1975] 2 NZLR 725 and Pigney v Pointers Transport Services Ltd [1957] 2 All ER 807, [1957] 1 WLR 1121), will not have made the requisite free and unconstrained choice. Where the plaintiff’s lack of mental capacity has been caused by the defendant’s breach of duty, the entitlement to recover is all the stronger. On the same basis choices made under constraint of circumstances, such as those made by rescuers or persons placed in immediate danger, will not carry with them the consequence that the choice was the sole cause of the subsequent injury to the plaintiff nor will it result in his bearing the sole responsibility for his injury: see Haynes v Harwood [1935] 1 KB 146, [1934] All ER Rep 103: cf Cutler v United Dairies (London) Ltd [1933] 2 KB 297, [1933] All ER Rep 594. The same applies if the plaintiff’s choice was vitiated by misinformation or lack of information. . . . In the context of employment, the question of the reality of the employee’s assent and his acceptance of risk has been the subject of many decisions; perhaps the most illuminating discussion for present purposes is to be found in Imperial Chemical Industries Ltd v Shatwell [1964] 2 All ER 999 esp at 1008-1009, [1965] AC 656 esp at 680-681 per Lord Hodson where he stresses that the plaintiff’s conduct cannot be described as voluntary unless he truly had a free choice . . . These qualifications are fundamental and are the basis of the decisions where a plaintiff has been held entitled still to sue notwithstanding his having made a choice which led to the event of which he complains.
The simplest way in which to express the relevant principles, both the basic
principle of autonomy and the qualification, is in terms of causation. Both as a matter of the ordinary use of language and as a matter of law it is correct to say that the plaintiff’s voluntary choice was the cause of his loss
Lamb v London Borough of Camden
Court of Appeal [1981] EWCA Civ 7, [1981] 2 All ER 408
LORD DENNING MR
The truth is that all these three, duty, remoteness and causation, are all devices by which the courts limit the range of liability for negligence or nuisance. As I said recently in Compania Financiera Soleada SA v Hamoor Tanker Corpn Inc, The Borag [1981] 1 All ER 856 at 861, [1981] 1 WLR 274 at 281: `. . . it is not every consequence of a wrongful act which is the subject of compensation. The law has to draw a line somewhere.’
Sometimes it is done by limiting the range of the persons to whom duty is owed. Sometimes it is done by saying that there is a break in the chain of causation. At other times it is done by saying that the consequence is too remote to be a head of damage. All these devices are useful in their way. But ultimately it is a question of policy for the judges to decide . . .
Looking at the question as one of policy, I ask myself: whose job was it to do something to keep out the squatters? And, if they got in, to evict them? To my mind the answer is clear. It was the job of the owner of the house, Mrs Lamb, through her agents . . .
On broader grounds of policy, I would add this: the criminal acts here, malicious damage and theft, are usually covered by insurance. By this means the risk of loss is spread throughout the community. It does not fall too heavily on one pair of shoulders alone. The insurers take the premium to cover just this sort of risk and should not be allowed, by subrogation, to pass it on to others . . . It is commonplace nowadays for the courts, when considering policy, to take insurance into account . . .
So here, it seems to me, that, if Mrs Lamb was insured against damage to the house and theft, the insurers should pay the loss. If she was not insured, that is her misfortune.
Taking all these policy matters into account, I think the council are not liable for the acts of these squatters.
I would dismiss this appeal.
OLIVER LJ
……
The views which Lord Reid there expressed are not reflected in the speeches of the others of their Lordships in the case, and were, I think, obiter, since there was no scope for argument on the assumed facts that the damage which occurred was not the very thing that was likely to happen. But, obiter or no, Lord Reid’s opinion must be at least of the very highest persuasive authority. For my part, however, I very much doubt whether he was, in what he said regarding the likelihood of the act of a third party, intending to bring back into the test of remoteness some further philosophical consideration of nexus
or direct or indirect causation. As it seems to me, all that Lord Reid was saying was this, that, where as a matter of fact the consequence which the court is considering is one which results from, or would not have occurred but for, the intervention of some independent human agency over which the tortfeasor has no control it has to approach the problem of what could be reasonably foreseen by the tortfeasor, and thus of the damage for which he is responsible, with particular care. The immediate cause is known: it is the independent human agency; and one has therefore to ask: on what basis can the act of that person be attributed back to the tortfeasor? It may be because the tortfeasor is responsible for his actions or because the third party act which has precipitated the damage is the very thing that the tortfeasor is employed to prevent. But what is the position in the absence of some such consideration? Few things are less certainly predictable than human behaviour, and if one is asked whether in any given situation a human being may behave idiotically, irrationally or even criminally the answer must always be that that is a possibility, for every society has its proportion of idiots and criminals. It cannot be said that you cannot foresee the possibility that people will do stupid or criminal acts, because people are constantly doing stupid or criminal acts. But the question is not what is foreseeable merely as a possibility but what would the reasonable man actually foresee if he thought about it, and all that Lord Reid seems to me to be saying is that the hypothetical reasonable man in the position of the tortfeasor cannot be said to foresee the behaviour of another person unless that behaviour is such as would, viewed objectively, be very likely to occur.
Now if this is right, it does raise a difficulty over the official referee’s finding. If the likelihood of human behaviour is an element in reasonable foreseeability the official referee’s disposition to say that the invasion of squatters was reasonably foreseeable is inconsistent with his actual finding of fact that squatting was unlikely, and that is the only actual finding. What I think, with respect, he was doing in this passage of his judgment was confusing ‘foreseeable’ with ‘reasonably foreseeable’. That indeed would be consistent with the passage from Lord Reid’s speech on which he was relying as stating the principle. Lord Reid said in terms that foreseeability ‘as a possibility’ was not sufficient and I think that what the official referee has done is to treat that as meaning, in the context, ‘reasonable foreseeability as a possibility’. In the context in which, as I think, Lord Reid was using the expression ‘as a possibility’ (that is to say, as meaning ‘only a bare possibility and no more’) that seems to me to be a contradiction in terms, and for the reasons which I have endeavoured to explain it was not what Lord Reid intended and it was not what he said. The critical finding here is, to my mind, that the incursion of squatters was in fact unlikely.
Given this finding, it seems to me that, accepting Lord Reid’s test as correct (which counsel for the plaintiff challenges), it must be fatal to the plaintiff’s contentions on this appeal, because it constitutes in effect a finding that the damage claimed is not such as could be reasonably foreseen. And that, indeed, seems to me to accord with the common sense of the matter . . .
I should perhaps add that I do not dissent from the view of Lord Denning MR that the test expressed by Lord Reid (with, as I think, the intention of restricting the ambit of the duty in tort) was incorrect, in that it was not exhaustive and did not go far enough in that direction. To apply a straight test of foreseeability or likelihood to hypothetical circumstances which could arise in relation to the acts of independent third parties in the case of, for instance, carelessness on the part of servants of the Home Office does, as Lord Denning MR points out, produce some astonishing results. Suppose that as a result of the carelessness of a prison officer a prisoner escapes and commits a crime of the same type as that for which he is in custody a fortnight later and 400 miles away from the place at which he escaped. Is it any less foreseeable that he will do so than that he will steal his rail fare from a house adjoining the prison? And is the Home Office to be liable without limit until the prisoner is apprehended? Does it make any difference if he is, at the date of his escape, on remand or due for parole? Happily, such hypothetical questions do not, on the view that I take, have to be answered in the instant case, but whether or not it is right to regard questions of remoteness according to some flexible test of the policy of the law from time to time (on which I prefer at the moment to express no view) I concur with Lord Denning MR in regarding the straight test of foreseeability, at least in cases where the acts of independent third parties are concerned, as one which can, unless subjected to some further limitation, produce results which extend the ambit of liability beyond all reason. Speaking for myself, I would respectfully regard Lord Reid’s test as a workable and sensible one, subject only to this, that I think that he may perhaps have understated the degree of likelihood required before the law can or should attribute the free act of a responsible third person to the tortfeasor. Such attribution cannot, as I think, rationally be made simply on the basis of some geographical or temporal proximity, and even ‘likelihood’ is a somewhat uncertain touchstone. It may be that some more stringent standard is required. There may, for instance, be circumstances in which the court would require a degree of likelihood amounting almost to inevitability before it fixes a defendant with responsibility for the act of a third party over whom he has and can have no control. On the official referee’s finding, however, that does not arise here, and the problem can be left for a case in which it directly arises.
WATKINS LJ: . . .
I feel bound to say with respect that what Lord Reid said in the Dorset Yacht case does nothing to simplify the task of deciding for or against remoteness, especially where the fresh damage complained of has been caused by the intervening act of a third party. It may be that in respect of such an act he is to be understood as saying, without using his remarkable and usual clarity of expression, that damage is inevitably too remote unless it can reasonably be foreseen as likely to occur. If that be so, it could be said that he was not intending to depart from the Wagon Mound test save in cases involving intervening human action to which he would apply a rather stricter than usual test by placing acts which are not likely to occur within the realm of remoteness .
. . . has in some quarters been criticised on the basis that it would have been more in accordance with principle to have treated the plaintiff’s unreasonable conduct as contributory negligence. I do not agree. I prefer to regard the decision in McKew as a good example of a determination to bring realistic consideration to bear on the question of fresh damage arising from an event or act occurring subsequently to the initial negligent act in the context of remoteness of damage.
It seems to me that if the sole and exclusive test of remoteness is whether the fresh damage has arisen from an event or act which is reasonably foreseeable, or reasonably foreseeable as a possibility, or likely or quite likely to occur, absurd, even bizarre, results might ensue in actions for damages for negligence. Why, if this test were to be rigidly applied to the facts in the Dorset Yacht case, one can envisage the Home Office being found liable for the damage caused by an escaped borstal boy committing a burglary in John o’ Groats. This would plainly be a ludicrous conclusion.
I do not think that words such as, among others, ‘possibility’, ‘likely’ or `quite likely’ assist in the application of the test of reasonable foreseeability. If the crisply stated test which emanates from The Wagon Mound (No. 2) is to be festooned with additional words supposedly there for the purpose of amplification or qualification, an understandable application of it will become impossible.
In my view the Wagon Mound test should always be applied without any of the gloss which is from time to time being applied to it.
But when so applied it cannot in all circumstances in which it arises conclude consideration of the question of remoteness, although in the vast majority of cases it will be adequate for this purpose. In other cases, the present one being an example of these in my opinion, further consideration is necessary, always providing, of course, a plaintiff survives the test of reasonable foreseeability.
This is because the very features of an event or act for which damages are claimed themselves suggest that the event or act is not on any practical view of it remotely in any way connected with the original act of negligence. These features will include such matters as the nature of the event or act, the time it occurred, the place where it occurred, the identity of the perpetrator and his intentions, and responsibility, if any, for taking measures to avoid the occurrence and matters of public policy.
A robust and sensible approach to this very important area of the study of remoteness will more often than not produce, I think, an instinctive feeling that the event or act being weighed in the balance is too remote to sound in damages for the plaintiff. I do not pretend that in all cases the answer will come easily to the inquirer. But that the question must be asked and answered in all these cases I have no doubt.
To return to the present case, I have the instinctive feeling that the squatters’ damage is too remote. I could not possibly come to any other conclusion, although on the primary facts I, too, would regard that damage or something like it as reasonably foreseeable in these times.
We are here dealing with unreasonable conduct of an outrageous kind. It is notorious that squatters will take the opportunity of entering and occupying any house, whether it be damaged or not, which is found to be unoccupied for more than a very temporary duration. In my opinion this kind of antisocial and criminal behaviour provides a glaring example of an act which inevitably, or almost so, is too remote to cause a defendant to pay damages for the consequences of it.
Accordingly, I would hold that the damage caused by the squatters in the present case is too remote to be recovered from these defendants . . .
Molloy v. Gallagher and Others.
[1933] IR 8
Supreme Court.
KENNEDY C.J. :
23. Nov.
The judgment of the Court will be read by Mr. Justice FitzGibbon.
FITZGIBBON J. :
This action was brought by the plaintiff to recover damages for conspiracy to injure her, and deprive her of the position of Assistant Teacher in the National School of Lisduff in the County of Mayo.
The defendants were Bridget Egan, the Principal Teacher in the school; Margaret Egan, her sister-in-law, the First Assistant Teacher; the Rev. Canon Gallagher, the Manager of the school; and Henry Morris, now a Deputy Chief Inspector, but at the date of the matters with which the action is concerned, Divisional Inspector for the Sligo Division under the Minister for Education.
The trial before O’Byrne J. and a jury occupied six days, in the course of which the defendant, Margaret Supreme Court.
Egan, died, and her name was struck out of the record. The questions submitted to the jury, with the answers thereto, are as follows:
“1. Did the defendants and Margaret Egan (since deceased), or any two or more of them, conspire together for the purpose of procuring the removal of the plaintiff from her employment as a teacher in Lisduff National School?” Answer:”Yes.”
“2. Who were the parties to the said conspiracy?”
“(a) Was Canon Gallagher?” Answer: “No.”
“(b) Was Bridget Egan?” Answer:”Yes.”
“(c) Was Mr. Morris?” Answer:”No.”
“3. Did the parties to the said conspiracy in fact secure the removal of the plaintiff from her said employment?” Answer:”Yes.”
“4. Assess damages.” Answer:”£1,000.”
At the close of the plaintiff’s case counsel for the defendant, Bridget Egan, applied for a direction on the ground that there was no evidence of the conspiracy alleged, and that the acts complained of were done in the execution of a public duty, and therefore were protected by the Public Authorities Protection Act. At the close of the defendants’ case this application was repeated, and an application on similar grounds was made on behalf of the defendant, Henry Morris.
When the findings of the jury had been announced, counsel on behalf of Bridget Egan applied for judgment, contending, as has been again contended here, that as the pleadings alleged a conspiracy between four people and as two of them had been exonerated, no judgment could be given against either of the others, notwithstanding a finding of conspiracy between them.
It is unnecessary to deal with the case of the defendant Henry Morris, as he had been discharged by the verdict, but before considering the application to set aside the findings of the jury it is convenient to dispose of the contention that Bridget Egan was entitled to a direction in her favour at any stage of the case.
It has already been decided that the wilful doing of an illegal act, with intent to injure another, cannot be within the protection of a statute which was passed to protect public authorities in the performance, or attempted performance, of their public duties. It cannot be within the performance of his public duty by a public official to conspire maliciously to injure a fellow-servant, and if the jury had found upon evidence sufficient to sustain their finding, that all or any of the defendants had maliciously conspired to procure the removal of the plaintiff from her position and had effected their object, such a finding would have negatived the defence which purported to rely upon an act done in the execution, or intended execution, of a public duty.
The other ground of Bridget Egan’s application is equally unsound. It has long been settled that the gist of an action in respect of a conspiracy to injure is the damage sustained, and that the existence of the conspiracy is matter of inducement or aggravation, and there is even authority for the proposition that in an action upon the case in the nature of a conspiracy against several, all but one may be acquitted, and nevertheless the verdict and judgment against the one are good: Savill v. Roberts (1); Murielv. Tracy (2); Pollard v. Evans (3); Skinner v. Gunton (4).Here, the jury have found at least a conspiracy betweentwo, the Egans, and accordingly, in our opinion, it is clear that upon the findings, as they stand, judgment could not have been entered for Bridget Egan.
The point upon which the main controversy turned is whether there was evidence proper to be submitted to the jury in support of their findings in answer to the questions 1, 2 (b), and 3. It is clear that if any one of these findings be set aside, the verdict and judgment for the plaintiff cannot stand.
During and since the hearing we have read and re-read every word of the great mass of evidence, the taking of which occupied the Judge and jury for several days, but having regard to the clear conclusion at which the Court has arrived upon the answer of the jury to the third question, the grounds of which can be briefly stated, it is unnecessary to examine the evidence in detail to see whether there was sufficient evidence to support the findings upon questions 1 and 2 (b).
In our opinion, when the jury found that neither the Rev. Canon Gallagher, nor Henry Morris, the Divisional Inspector, was a party to the alleged conspiracy, it became impossible, upon the evidence in the case, to sustain a finding that the conspiracy between the Egansassuming it to have existed “secured the removal of the plaintiff from her employment.”
The dismissal of the plaintiff was the result of a report by the Divisional Inspector, Henry Morris, upon an inquiry, officially ordered by the Minister for Education, and held
by him and a District Inspector, one George O’Byrne, on the 3rd, 8th, 9th, 10th and 11th of March, 1927. The report is dated March 25th, 1927, and the final paragraph is in these words:”For Miss Molloy there is no possible alternative way of settling this quarrel, but by her leaving this school, a punishment she has fully merited.” The Inspector, who has been exonerated by the finding of the jury from all charges of participation in any conspiracy to procure the removal of the plaintiff from her post, arrived at that conclusion after a most exhaustive hearing of charges and counter-charges, 199 in all, of which 54 were made against the plaintiff by her colleagues, and 145 were made by her against them. It is worthy of note that the inquiry had its inception in complaints by the plaintiff herself.
The notice to the plaintiff that she would no longer be recognised as an Assistant Teacher in the school and that her salary was withdrawn was conveyed to her in a letter from the Office of National Education, dated November 2nd, 1927:
“MADAM,
“I am directed to inform you that the report of the inquiry, held by the Divisional Inspector in regard to the serious dissensions which have existed for a considerable period between you and the other members of the teaching staff of the above-named school, has been under consideration.
“I am to remind you that the injurious results to education generally and to the training of the children in this school in particular, arising from the discreditable ‘scenes’ which have taken place in the schoolroom were brought under the notice of this Department in June, 1926, in connection with the report of an incidental visit to the school by the Divisional Inspector, and it was intimated to the Manager in the official letter of August 9th, 1926, a copy of which was forwarded to you and to the other teachers, that a special investigation would be held by the Divisional Inspector into the matter. In view, however, of representations made to the Department, the Inquiry was deferred with the object of affording an opportunity of resumption of amicable relations; but, as subsequent events did not give any reason to expect that the dissensions would cease, the Inquiry was proceeded with.
“The report of the Inquiry shows that you have persistently ignored and flouted the authority of the Principal Teacher, and that the bickering and unedifying quarrels between yourself and the other two teachers for the past three years have been the source of grave scandal to the pupils and to the neighbourhood. It is clear that your conduct in the school has been mainly responsible for the serious condition of affairs.
“I am, accordingly, to inform you that upon a review of all the circumstances of the case it has been decided that you cannot continue to be recognised as Assistant Teacher in this school, and salary will be withdrawn from you in that capacity as from November 4th, 1927.
“I am to state that the question has been under consideration as to whether you are a suitable person for recognition elsewhere as a National School teacher, and to say that, subject to the Rules and Regulations, this Department will be prepared to sanction your appointment on trial in another school.
“I am, Madam,
“Your obedient servant,
“P. O’BROLCHAIN.”
Letters were addressed on the same date to the defendant Bridget Egan, who was censured, and to Margaret Egan, who was severely reprimanded and fined £25, the Inspector having reported that he “should be very willing to see her more severely punished if the Department thought that such action was justified by the evidence.”
As the Inspector founded his recommendation that the plaintiff should be dismissed, in the main upon her own admissions as to her conduct, and also upon the attempts to justify her admitted acts of insubordination, and as he submitted all the documents, including the charges and counter-charges, and the replies thereto of the respective parties, to the Department, by whom action was taken, the conclusion that the removal of the plaintiff from her appointment was due, not to any conspiracy between the Egans, but to the decision of a public Department founded upon the impartial report of a public official, giving his recommendation, based upon the plaintiff’s own conduct as proved or admitted in the inquiry which he was officially directed to hold, is inevitable. No serious attempt has been made, even if it were open upon the pleadings in the present case, to challenge the propriety of the findings of Mr. Morrisassuming, as the jury have found, that he was not a party to the conspiracyor that of the jury which exonerated him from the charge of conspiracy. Mr. Wood made a gallant, but hopeless, attempt to extract from the answer of the jury to the third question an implied finding that the removal of the plaintiff from her employment was brought about by false evidence, given at the inquiry before Morris by the two Egans in pursuance of the conspiracy between them. No such issue was raised by the pleadings, or in the course of the trial. In the pleadings and throughout the trial the plaintiff based her case upon the participation of Morris in the conspiracy, as an essential link in the chain between the alleged design to bring about her dismissal from her office and the damage resulting from the carrying into execution of that design. The cross-examination of Morris was directed to establish the charge that he was a party to the conspiracy, and there was no suggestion that he was or could have been the innocent victim of a different conspiracy, viz.: one to procure an adverse report from him by concocted false evidence.
There is a very close analogy between the present action and a proceeding to recover damages for malicious prosecution. In fact, the old action upon the case for a conspiracy was frequently adopted by persons who claimed damages for malicious prosecution, or for malicious institution of proceedings in bankruptcy. Sir Frederick Pollock thus commenced the section of his work on Torts which deals with “Conspiracy” (7th ed., p. 313): “The modern action for malicious prosecution has taken the place of the old writ of conspiracy and the action on the case grounded thereon, out of which it seems to have developed,”and Mr. Bigelow (1) says that “the law of conspiracy, in its civil aspect, has been treated as a branch of the law of malicious prosecution, and with that subject it has, indeed, in one of its features, a close connection. Civil actions for conspiracy were formerly instituted, in most cases, for redress on account of unlawful combinations for instituting criminal prosecutions of the grade of felony.”
Just as, in the action to recover damages for malicious prosecution, the plaintiff had to establish that the proceedings had terminated in his favour, so it appears to us that the plaintiff must establish that her removal was due to the malicious action of the two Egans, or possibly of the defendant Bridget Egan alone, in setting the machinery of the Department in motion against her. So far from establishing that her removal was brought about by the Egans, the report of the Inspector, and the oral evidence given by him at the trial, demonstrate that she was removed solely on account of her own “deliberate and prolonged insubordination.”
Assuming that the prosecution of the inquiry before the Inspectors was brought about by a malicious conspiracy on the part of the Egans to have the plaintiff removed and the evidence in support of this assumption is very scant indeednot only did the prosecution not terminate favourably to her, but its unfavourable termination is shown to have been due to her own misconduct in office and not to the alleged conspiracy.
In our opinion there is no evidence to justify the finding of the jury that the conspiracy between the Egans caused the plaintiff’s removal from office. We will not attempt to consider the other question argued, viz.: whether the evidence justifies the finding that such a conspiracy existed. We have assumed in the plaintiff’s favour that it did, but even on that assumption we find ourselves unable to maintain the verdict.
Having expressed the opinion that the plaintiff’s removal by the Department was justified on the report of their Inspector, we think it is only fair to her to point out that there has never been any suggestion that she was otherwise than highly efficient as a teacher, and that the Department, in the same letter which notified her that she could no longer be recognised as an assistant at Lisduff, stated that it would be prepared to sanction her appointment on trial in another school. Her removal was due, not to any incompetence on her part, but to the invincible incompatibility of temperament between her and the particular colleagues with whom she was associated.
In the result, the finding of the jury in answer to question 3 and the assessment of damages will be set aside, and verdict and judgment will be entered for the defendant, Bridget Egan.
Hayes -v- Minister for Finance
[2007] IESC 8 (23 February 2007)
Hardiman J.
Kearns J.
Finnegan J.
JUDGMENT of Mr. Justice Kearns delivered the 23rd day of February, 2007
The plaintiff is a young woman who suffered multiple severe personal injuries in a road traffic accident which occurred on the 6th day of August, 1994 at or near Kilfeakle in the County of Tipperary. The accident occurred shortly before 9 p.m. when road and weather conditions were perfect. On that occasion the plaintiff was a pillion passenger on a 500 cc motorcycle driven by her then boyfriend Ian Lynch when at a bend in the road the motorcycle crossed a continuous white line on to its incorrect side. There was at that time a motor car driven by Mr. James Kearns which was coming in the opposite direction. Mr. Kearns observed that the motorcycle was approaching at speed and was out on the white line. He slowed and pulled into the left at the entrance to a farm house and was all but stopped when the motorcycle hit the front of his car. This was a forceful impact and both the motor cycle driver and pillion passenger were thrown some considerable distance beyond the car. It is quite clear that the driving of Mr. Kearns in no way caused or contributed to either the accident or injuries sustained by either the driver of the motorcycle or the plaintiff pillion passenger.
No claim of any sort was brought against Mr. Kearns, but the defendant/appellant was sued because it is alleged that the motorbike driven by Ian Lynch was at the time being chased at high speed by a garda vehicle “which caused the motorcyclist to go out of control and to panic as a result of being chased, being followed and being pursued” so that it is alleged that the accident complained of was caused or contributed to by the negligence and breach of statutory duty of the defendant, his servants or agents.
The matter came on for hearing in the High Court (Finlay Geoghegan, J.) sitting in Limerick, and at the conclusion of the hearing the learned trial judge in an ex tempore judgment concluded that the cause of the speed at which the motorbike was being driven at the time of the accident was the pursuit of the bike by the garda vehicle.
Before considering the judgment of the learned trial judge in more detail, it is necessary to set out the background circumstances which culminated in the accident at Kilfeakle.
On the evening in question, two members of the Thurles Garda Station, Garda Anne Meehan and Sergeant (then Garda) Michael Dempsey, had set up a radar speed check on the Urlingford-Cashel road. They were sitting in an Opel Vectra standard issue patrol car about a mile and a half outside Urlingford and facing towards Urlingford. The vehicle was in plain view of traffic coming from Urlingford once that traffic crested a hill. Garda Meehan was sitting behind the wheel of the patrol car and Sergeant Dempsey had the radar gun in his hand. They first heard and then saw a motorbike approaching at speed from Urlingford. Garda Dempsey noted the speed of the motorbike on the radar gun to be 80 miles per hour. The motorcycle did not stop at the speed check and in fact increased his speed. Garda Meehan turned the patrol car and followed the motorbike. While this was happening, Sergeant Dempsey radioed back to the communications control centre in Thurles seeking assistance and stating that the bike had failed to stop. They were informed that a garda presence would come to Horse and Jockey which was some six or seven miles down the road. Sergeant Dempsey also radioed ahead to Cashel for the purpose of setting up a road-block or check-point there. In evidence Garda Meehan stated it took them some time to get the bike back into view again because they had started from a stationary position. The motorcycle had anything up to half a mile of a start on the garda vehicle. The blue flashing light was operating on the garda vehicle, but the siren was inoperative at the time. While pursuing the bike, the garda vehicle at no stage caught up with it. In evidence, Garda Meehan stated she had no idea who was on the bike, beyond noting there were two people who had helmets and black leather clothing. They had received no information to suggest that those on the motorcycle had been involved in any criminal conduct, though Garda Meehan stated in evidence that her “gut instinct” was that some serious crime might have taken place and that it was highly unusual for a speeding vehicle not to stop at a speed trap.
No garda presence came to Horse and Jockey, but a garda road-block was set up on the Dublin side of Cashel. However, Garda Meehan stated that the motorcycle swerved to the right of the garda patrol car which constituted the road-block, driving completely on the incorrect side of the roadway for that purpose, then swerved back onto its correct side of the main roadway through Cashel. As it passed the road-block the pillion passenger was observed to throw both hands in the air, suggesting to the pursuing gardaí that the pillion passenger wanted at that point to get off the bike.
The garda vehicle followed in the same manner and pursued the motorcycle through the town of Cashel, though it never got close enough to permit the gardaí to identify the registration number of the bike. At the end of the town the motorcycle made a right turn and then a left turn onto the Tipperary/Limerick road. Mr Lynch and the plaintiff had earlier travelled on the bike from Limerick to Kilkenny and always intended to take this route when returning to Limerick. Once the bike went out on to the Tipperary road Garda Dempsey radioed ahead for a check-point to be set up at the next town which was Tipperary.
Shortly after leaving Cashel, the gardaí lost sight of the motorbike because their car came in behind an articulated truck and they were unable to overtake the truck for quite some distance. They eventually succeeded in overtaking it and, coming out of Golden and from an elevated position, they caught sight of the tail light of the bike going around a corner at a time when the bike was about one mile ahead of them. Not long after that, they came around a left hand bend and observed that the motorcycle had crashed into the front of a vehicle travelling from the opposite direction.
It seems clear from the evidence that the road deteriorated significantly once the vehicles left Cashel. The vehicles were no longer on a major road, but rather on a minor road. The only evidence as to the speed of the garda vehicle on the Tipperary side of Cashel was that given by Sergeant Dempsey, who stated that the maximum speed of the garda vehicle would have been 50 miles per hour. He stated that the road was twisty and windy and was not a road upon which one could travel safely at speed. The gardaí gave evidence that they were content to tail the vehicle at this stage as they knew a road block would await the motor cycle at Tipperary.
Having heard the various witnesses, the learned trial judge made the following findings of fact:-
1) “That the motorcycle passed the initial speed trap at 80 miles per hour
2) That both gardaí were then sitting inside the car and that no signal was given to the bike to stop
3) That the gardaí had not received any information on the radio of any crime committed in the area
4) That having turned to commence the pursuit of the motorcycle, the garda members realised very quickly that the bike was increasing speed and attempting to drive away from them.”
The learned trial judged also separately found the following facts:-
1) “The gardaí followed the bike for the purpose of apprehending the driver of the bike
2) That it very quickly became clear to the gardaí that the bike was not going to stop and was increasing speed
3) As the bike increased speed, the garda car increased speed and continued in pursuit of the bike and drove at speeds of at least 100 miles per hour on the Urlingford – Cashel stretch of the road
4) That the gardaí started approximately one mile behind the bike and got to within 50 and 200 yards of the bike when coming into Cashel
5) That the garda car pursued the bike through Cashel by driving as the bike had done on the hard shoulder on the far side of the oncoming lane, circling a garda patrol car which was stopped on the oncoming lane and returning to its correct side of the road as they went down the town of Cashel
6) That the garda car must have been within approximately 150 yards of the bike as the bike turned at the top of Cashel, first right and then immediately left onto the Tipperary road. The undisputed evidence of Garda McDonnell, the garda from Cashel, is that one needed to be within this distance to have visibility of a bike going on to the Tipperary road.
7) That the garda car pursued the bike in visible proximity for approximately one mile out of Cashel on the Tipperary road towards Golden.
8) That the garda car was continuing to pursue the bike after Cashel but was held up by traffic between Cashel and Golden.
9) That the garda car was sighted by Mr Lynch as he left Cashel, and he was aware that the garda car was pursuing him on the road out of Cashel.
10) That the garda car was visible to the Plaintiff as a pillion passenger at one further point on the road after Golden.
11) That throughout the chase or pursuit, the garda car had its blue light flashing and headlights on.
12) That the garda car arrived one to one-and-a-half minutes after the accident occurred.”
These primary findings of fact are not challenged by the appellant in this appeal. The appellant’s case is that there was no breach of any duty of care by the appellant towards the plaintiff and that incorrect inferences were drawn from the primary findings of fact by the learned trial judge.
Having heard the evidence in the case the trial judge decided that the issues she had to resolve were:-
“(1) Was the chase or pursuit being given by the Garda to Mr Lynch’s bike the cause of the speed at which he was travelling at the time of the accident?
(2) If so, were the Garda in breach of a duty of care which they owed to the Plaintiff in undertaking or pursuing this chase or pursuit?”
In relation to the first of these questions, the learned trial judge concluded that “a cause of the speed at which the bike was being driven at the time of the accident was the pursuit of the bike by the garda car.”
In relation to the second question, the learned trial judge concluded as follows:-
“On the facts of this case, the offence of which the gardaí were aware, even on their account of what happened as the bike passed them, was a traffic offence. There is no evidence of any more serious offence. On those facts I have concluded that the gardaí in commencing a pursuit of a bike which was already passing them on the main Dublin-Cork road already travelling at 80 miles an hour and continuing that pursuit which included the gardaí driving on the Dublin-Cork road at a speed of 100 miles an hour was in breach of duty of care which they owed, inter alia, to the plaintiff as the pillion passenger. I further conclude that the driving of the car in the manner which it is acknowledged as was done through the town of Cashel and the continued pursuit out the narrow Tipperary road was also in breach of the duty of care owed. For these reasons I find the defendant liable to the plaintiff in these proceedings.”
Relevant legal considerations
The State no longer enjoys immunity from tortious liability in this jurisdiction. That historic anomaly was removed in the case of the negligent driving of a mechanically propelled vehicle belonging to the State by Section 170 of the Road Traffic Act, 1933 which was replaced by Section 116 of the Road Traffic Act, 1961 and later by Section 59 of the Civil Liability Act, 1961 which provides:-
“ 1) Where a wrong is committed by the use of a mechanically propelled vehicle belonging to the State, the Minister for Finance shall be liable to an action for damages in respect of damage resulting from the wrong in like manner as if the Minister for Finance were the owner of the vehicle, and the person using the vehicle shall, for the purposes of such liability, be deemed to be the servant of the Minister for Finance in so far as such person was acting in the course of his duty or employment.”
There was no dispute between the parties at trial or on the hearing of this appeal as to the existence of a duty of care on the part of the driver of a police vehicle to other road users, including a driver who may have been guilty of some sort of criminal behaviour and in respect of whom a pursuit is undertaken. In this regard counsel for the plaintiff in opening the case at trial suggested that the relevant duty of care was that outlined in the decision of the Court of Appeal in Marshall v. Osmond and another [1983] 1 QB 1034 in which Sir John Donaldson M.R described the duty owed by a police officer in pursuit of a suspect in the following terms at p. 1038:-
“I think that the duty owed by a police officer to the suspect is, as Mr. Spokes, on behalf of the plaintiff, has contended, the same duty as that owed to anyone else, namely to exercise such care and skill as is reasonable in all the circumstances. The vital words in that proposition of law are ‘in all the circumstances’, and of course one of the circumstances was that the plaintiff bore all the appearance of having been somebody engaged in a criminal activity for which there was a power of arrest.”
Counsel also made references to various provisions of the Garda Síochána Code which, while not imposing any strict legal liability on the gardaí, were relied upon as being indicative of the nature of the duty of care. The provisions contained at par 35.39 (2) and (3) of the Code are particularly relevant to the facts of this case and provide:-
“Chasing escaping vehicles:
a) The responsibility for undertaking a chase rests with the driver of the garda vehicle, unless the order is given by a radio message. The driver is also responsible for deciding whether the pursued car is to be tailed or an attempt made to stop it. The whole responsibility is with the driver alone and he is not to be interfered with in any way or urged to higher speed by anyone. A chase at speed is only justified where it is really important to arrest the occupants of the pursued car. A minor crime, traffic offence, or even the sighting of a stolen car, does not justify a chase at speed.
Stopping escaping vehicles:
a) Stopping should only be adopted as a last resort. Usually it is better to tail the suspect in the hope that he will be held up by traffic, run out of petrol or make a mistake, which will enable an arrest to be made. It is preferable to let a criminal escape rather than risk death or injury to innocent people.
b) Stopping obviously involves risk to both vehicles and their occupants. If real need arises this risk must be accepted, but it is essential that the right place and moment should be chosen so that no one else is endangered. Here again, it is a question of the skill and discretion of the driver.
c) Where a member of the Garda Síochána is pursuing a vehicle and he suspects with reasonable cause that an offence under Section 8 of the Criminal Law Act, 1976 or any offence under the said Act has been, or is being or is about to be committed, he may require the driver to stop, and may use reasonable force in order to compel him to comply with such requirement, and such force may include the placing of a barrier or other device in the path of the vehicle.
This paragraph (c) does not affect the generality of the sub-section and is not to be construed as giving a blanket permission to deal similarly with all offences or crimes.”
In the course of the appeal before this Court, further reference was made in course of submissions to a number of Canadian decisions which dealt with police pursuits, notably Doern v. Phillips Estate (1994) 2 B.C.L.R. (3d) 349 and Noel v. Botkin and others (1995) 9 B.C.L.R. (3d) 21 British Columbia Supreme Court.
In the first of these cases, the Supreme Court of British Columbia reviewed a number of Canadian decisions before concluding (at p 17):-
“It is apparent from a review of these authorities that Canadian courts have been reluctant to find negligence on the part of police officers in the lawful discharge of their duties. Nevertheless, the authorities also demonstrate that each case must be examined according to the circumstances of the case”.
On the following page, the standard or duty of care was elaborated in the following manner:-
“Based on the authorities provided, there is little doubt that the standard of care to which a police officer will be held is that of a reasonable police officer, acting reasonably and within the statutory powers imposed upon him or her, according to the circumstances of the case. In this case, it is necessary to consider whether the pursuit policy, which constituted a self- imposed standard of care, was followed. The police pursuit policy was obviously carefully and thoughtfully crafted. It was designed to assist officers and in the conduct of the activity that put them at more risk of harm than any of their other duties. Although the policy does not, in itself, constitute the standard of care, compliance with the policy, in my view, is a very important factor to consider in determining whether the standard of care has been met.”
In Noel v. Botkin, the same court summarised the question to be asked in assessing the conduct of police officers during pursuit is to enquire:-
“[W]hether they, viewed objectively from the view point of a reasonable police officer, acted reasonably and within the statutory powers conferred upon them. In considering that question, the Court must take into account that officers will be expected to perform the duties imposed on them by statute and to comply with policies adopted by the force to which they belong. A failure to comply with policy will not necessarily constitute negligence, nor will an error in judgment. Officers are exempted from compliance with certain traffic rules, provided they meet the requirements of Section 118 of the Motor Vehicle Act. There must be a recognition that officers are required to exercise judgment in balancing the competing interests of arresting wrongdoers and protecting citizens.”
Reliance was also placed by counsel on behalf of the defendant during the course of the appeal on a decision of the Scottish Court of Session in Gilfillan v. Barbour (2004) SCLR 92, in which a careful distinction was drawn between the duty of care owed by a police officer and the standard of care which that duty imposes. As Lord Reed stated in his judgment (at p 12):-
“The police officer, like any other driver, owes a duty of care to other road users: that much is indisputable. The real question, however, is not as to the existence of a duty of care, but as to the standard of care which that duty imposes: something which one might expect to depend on the circumstances. McNair J. appears to have considered that the standard of care required of the police officer was the same as the standard required of any other driver”
In deeming such reasoning to be questionable, Lord Reed stated:-
“If the ordinary driver breaks the speed limit, that is in itself a material factor in determining whether he has been negligent. In the case of a police officer, on the other hand, in circumstances in which he is exempted from obeying the speed limit, no inference of negligence can be drawn from his driving at a speed in excess of the speed limit. The only question, as it seems to me, is whether it is reasonable for him in the particular circumstances to drive at a given speed, notwithstanding the risk of possibly injuring another road user. The answer to that question must depend on the circumstances, in particular those circumstances relevant to the urgency of the police business on which he is engaged, and those circumstances relevant to the degree of risk which he is taking. For example, in deciding whether it was reasonable for a police driver to drive at a given speed, and to take the concomitant risks as regards other road users, it might be relevant to know whether he was in pursuit of an escaping murderer or in pursuit of a motorist with defective lights; whether he was trying to get an injured man to hospital in time to save his life, or trying to catch a car thief. There will of course be circumstances where the risk to other road users is so high that it would not be reasonable to take that risk, however urgent the police business might be.”
He continued as follows at page 14:-
“It also appears to me to be important, in circumstances such as those of the present case, to bear in mind that the responsibilities of a police officer on mobile patrol can involve making difficult judgments: for example, as to the urgency of responding to a call and the appropriate speed for him to adopt in doing so, bearing in mind that he has been trained in driving skills to a higher level than the ordinary driver. Such judgments may have to be made in circumstances where the potential consequences of excessive delay, or of excessive haste, may be equally grave; and where there may be little time for reflection upon the choice to be made. It is therefore important, when such a driver is alleged to have been negligent, for the court to be satisfied that his conduct went beyond a mere error of judgment within the scope of the proper performance of his duties, and amounted to conduct which can be regarded as negligent. In determining that question, the court has to consider all the circumstances, including the nature and degree of any emergency involved, in order to decide whether, in driving as he did, the driver acted reasonably or not.”
In this context, counsel for the defendant drew the attention of the court to the Road Traffic (General and Ordinary Speed Limits) Regulations, 1994 (S.I. Number 194 of 1992) and the Road Traffic (Special Speed Limits) Regulations, 1994 (S.I. Number 223 of 1994) whereby vehicles used by the Garda Síochána in the performance of their duties were exempted from the application of the regulations.
As already indicated there was no real dispute between the parties but that the legal principles elaborated above set out in fair detail the relevant duty and standard of care. The essence of the dispute, however, was whether, in the particular circumstances of this case, there was a breach of such duty, and if so, was it causative of the plaintiff’s injuries.
Submissions
In the course of the appeal, Mr. Brian R. Murray S.C., counsel for the defendant, argued that the gardaí had a duty to uphold the law and to deal with infringements, be they speeding offences or other more serious transgressions. He submitted that in the instant case, the gardaí had at all times behaved appropriately. They were perfectly justified in commencing the pursuit of a motor cycle which had passed them at 80 miles per hour and which accelerated away from the speed trap at Urlingford. There were objectively reasonable grounds for suspecting, either then, and most certainly at a later stage when the motorcycle passed the garda road-block in Cashel, that some serious offence had been committed. The garda members had radioed ahead to set up appropriate road-blocks. They had not driven at or sufficiently close to the motorcycle to cause the accident complained of. They had never even come sufficiently close to the bike in the course of the pursuit to identify its registration number, even when closing to within 150 yards of the bike when going through Cashel. He further argued that the nature of the pursuit after Cashel was quite different from that which had preceded it. At no stage was there any evidence that the garda vehicle had then travelled in excess of 50 miles per hour. Furthermore, Mr. Lynch, while he believed the garda car was still in pursuit, never saw it again from the time he left Cashel until the accident occurred some 9.6 miles beyond Cashel. The garda vehicle was well behind at that stage and that was evident from the fact that it took one and a half minutes for the garda vehicle to arrive on the scene of the accident. He submitted that this section of the pursuit was quite different because the gardaí, having set up a road-block at Tipperary, were content to remain behind the motorcycle and had no intention of doing anything which would cause danger to either the driver or the pillion passenger, nor did they do so.
Alternatively, if the gardaí were to be found negligent in these circumstances, Mr Murray submitted that the driving of Mr. Lynch at the time of the accident constituted a novus actus interveniens of such a degree as to absolve the defendant from all blame. He cited Conole v. Redbank Oyster Company limited and another [1976] I.R. 191 as authority for the proposition that one must distinguish between negligence and causative negligence. The only causative negligence in this case was the driving of Mr Lynch: this was the proximate and sole reason for the accident in the particular circumstances of this case.
He further pointed out that Mr. McMahon S.C., counsel for the plaintiff, had agreed in the course of his submissions, that once the garda vehicle got caught up behind the juggernaut shortly after leaving Cashel, the distance which then built up between the motorcyclist and the garda vehicle provided an opportunity in which the motorcyclist, had he so wished, could have stopped and allowed the pillion passenger to dismount from the motorcycle.
Further and alternatively, Mr. Murray submitted that nothing the garda patrol car had done, or failed to do, had, as a matter of fact, been causative of the accident. There was nothing in the behaviour of the garda vehicle at any stage which could or should have caused the driver of the motorcycle to behave as he did behave at the time of the accident itself. The garda vehicle must have been at least a mile away and out of sight when the collision occurred between Mr. Lynch’s motorcycle and the vehicle driven by Mr. Kearns.
For the respondent Mr McMahon submitted that the gardaí, once they had set up the roadblocks, should have desisted from any attempt to maintain a pursuit which had as its goal the apprehension of the motor cyclist. They had no hard information that any serious crime had been committed by the driver and thus had no right to engage in a chase at speed. It was foreseeable to the gardaí that the motor cyclist would continue to speed after he left Cashel because it was clear the garda vehicle was continuing to pursue him on the road to Tipperary.
Decision
The resolution of this matter has been somewhat simplified by the concession on behalf of the appellant that, in the particular circumstances of this case, the occupants of the garda vehicle did owe a duty of care both to the driver of the motorcycle and to the plaintiff.
That being so, it is not necessary to carry out the kind of detailed analysis in relation to the existence or otherwise of a duty of care which was conducted by Fennelly J in Breslin v. Corcoran and the Motor Insurers’ Bureau of Ireland [2003] 2 IR 203, though some consideration of the policy aspects of finding in favour of the existence of a duty have a relevance in this case when it comes to the question of causation.
In Breslin the first named defendant had left his vehicle unlocked with the keys in the ignition. An unknown person stole the car and, as a result of his negligent driving, collided with the plaintiff and caused him injury. This Court held in Breslin that, in determining whether the owner of the vehicle owed any duty to the person ultimately injured, that it was natural to have regard to considerations of fairness, justice and reasonableness, in addition to the elements of foreseeability and proximity and the judge of fact had to consider whether it was fair and just to impose liability and to have regard to all the relevant circumstances. The Court further held that while it was reasonably foreseeable that an unattended motor car would be stolen, it was not reasonably foreseeable that it would then be driven negligently. The Court thus followed its own decision in Glencar Explorations p.l.c. v Mayo Co. Co. (No.2) [2002] 1 IR 84 in which Keane CJ had stated at p.139:-
“There is, in my view, no reason why courts determining whether a duty of care arises should consider themselves obliged to hold that it does in every case where injury or damage to property was reasonably foreseeable and the notoriously difficult and elusive test of ‘proximity’ or ‘neighbourhood’ can be said to have been met, unless very powerful public policy considerations dictate otherwise. It seems to me that no injustice will be done if they are required to take the further step of considering whether, in all the circumstances, it is just and reasonable that the law should impose a duty of a given scope on the defendant for the benefit of the plaintiff…”
In my opinion any view of the standard of care – as distinct from the duty of care – must turn on the circumstances of the individual case. In this case that demands a recognition that the gardaí have wide ranging powers under the Road Traffic Acts in relation to the preservation of law and order and, in particular, safety on the roads. Furthermore, public policy requires that the functions of the gardaí in this regard are discretionary powers rather than duties. Thus Part IX of the Road Traffic Act, 1961, as amended, includes the power of arrest without warrant, the right to demand information, the power to stop a vehicle, the power to dispose of a vehicle temporarily, the power to detain a vehicle, the power of entry and detention of persons. Furthermore, the gardaí also have common law powers which enable them to require a person to stop, even where there is no evidence or no reasonable suspicion of a crime having been committed.
In the course of his judgment in (Director of Public Prosecutions (Stratford) v. Fagan [1994] 3 I.R. 265), Blayney J. examined the duties of the gardaí and referred to the dicta of Lord Parker C.J. in Rice v. Connolly [1966] 2 Q.B. 414 at p 419:-
“It is also in my judgment clear that it is part of the obligations and duties of a police constable to take all steps which appear to him necessary for keeping the peace, for preventing crime or for protecting property from criminal injury. There is no exhaustive definition of the powers and obligations of the police, but they are at least those, and they would further include the duty to detect crime and to bring an offender to justice.”
He further stated:-
“It is clear from these statements in regard to the duties of the police at common law that part of the duties of the gardaí are to detect and prevent crime. It follows in my opinion that if, in order adequately to detect and prevent crime, they find it necessary to require motorists to stop, the common law gives them full power to do so.”
In support of this argument, Blayney J. remarked that Section 109 (1) of the Road Traffic Act, 1961 requiring a motorist to stop does not actually give an express power to the gardaí; rather it obliges the motorist to stop when required to do so by a member of the gardaí but says nothing about the circumstances in which the gardaí have the power to stop a motorist. This is consistent with the existence of a common law power to stop motorists. Indeed, this power exists for practical reasons to allow gardaí to carry out their duties effectively and expeditiously without being concerned with the legality of their actions or that the performance of their functions may carry sanctions which in turn might deter them from their duties. Nonetheless the court stressed in Fagan’s case that these powers must be exercised bona fide and not in a capricious or arbitrary manner. I am satisfied that the silence in the legislation as regards the police power to pursue a motorist is confirmatory of a common law power to do so and that those powers must by implication include the power to operate random checks, erect road blocks and stop or pursue offending motorists.
Indeed in recent years the Oireachtas has seen fit to increase the penalties for dangerous driving and speeding. The gardaí have a clear obligation to ensure that these laws are upheld and to detect, prevent or stop any breaches thereof. In complying with these obligations it is obvious that the gardaí may owe different standards of care in a pursuit situation depending on the particular circumstances. For example, if there are good grounds for believing the perpetrator of a recent murder or bank robbery is attempting an escape, the standard of the duty owed to such a person may obviously be less than in the case of a trivial offender, particularly if the surrounding circumstances create particular risks in continuing the pursuit.
Turning to the facts of the instant case, Garda Meehan stated clearly that in all her eight years she had never seen anyone fail to stop at a speed check. Similar evidence was given by Sergeant Dempsey. The failure of the motorcyclist to stop outside Urlingford led those gardaí to form a suspicion that some sort of criminal activity had, or was, taking place so that the decision to pursue or tail the motorcyclist in the performance of their duty to detect and prevent crime can not, in my view, be seen as being in breach of any duty to those on the motor bike, notably in circumstances where the garda belief was both objectively reasonable and held bona fide. There is no allegation or evidence whatsoever of mala fides on their part in this case. I think therefore that Mr Murray is correct in describing the relevant test to justify the commencement of a pursuit as being one whereby the gardaí should have reasonable grounds for doing so and not one whereby as a precondition they should first have a report on the car radio of the commission of a crime before taking action. It would be a very unsatisfactory state of affairs to hold that the gardaí should have refrained from tailing or pursuing the speeding motorcycle when they knew it was not going to stop and notably when the driver of the motorcycle, who was already travelling well in excess of the speed limit, accelerated away from the speed trap. To so hold would be to condone a state of affairs whereby a reckless driver might evade justice altogether by simply driving more erratically or dangerously than when first observed.
I also believe the learned trial judge was in error in her inference that the pursuit was one seamless unitary process from Urlingford to Kilfeakle. It seems to me the circumstances changed more than once during the pursuit, so that the 28 mile chase divides into separate sections. The first section was that between Urlingford and Cashel. During that stretch both vehicles achieved speeds in excess of 100 miles per hour. Nonetheless, the pursuing garda vehicle never got sufficiently close to identify the registration number of the motorcycle. Nor had the gardaí any reason at that stage to believe that the driver and pillion passenger were acting other than by way of joint venture.
In and through Cashel, however, rather different circumstances obtained. Firstly, on reaching the road block, the pillion passenger threw up her hands in a gesture which conveyed to the pursuing gardaí that she wanted to get off the bike. It seems to me that once the pursuing gardaí observed this behaviour the circumstances altered to some degree (with a corresponding elevation of the standard of care) because the gesture conveyed to the occupants of the pursuing vehicle that the pillion passenger might not be, or at any rate might no longer be, part of any joint venture. The gesture was also given at a time when the motorbike and pursuing gardaí were about to pass through the main street of Cashel, where it might reasonably be expected there might be large numbers of pedestrians, bicycles or other traffic. In such circumstances, it is not difficult to conclude that a different standard of care should prevail for as long as those two considerations remained relevant. However, the critical point is that the accident did not happen in Cashel but at a point ten miles from there.
It seems to me that a completely different set of circumstances came into being when the vehicles left Cashel. Firstly, the nature of the road was different and did not lend itself to excessive speed, at least in so far as the garda vehicle was concerned. Secondly, the occupants of the garda vehicle were aware that a road block had been set up ahead in Tipperary and were content to sit in behind the motorcycle, rather than to attempt to stop it in any particular way themselves. Thirdly, the garda vehicle became trapped behind an articulated vehicle for some time, so that when the garda vehicle came upon the scene of the accident some 9.6 miles outside Cashel, the accident had already occurred some one and a half minutes beforehand. Whatever about the speed of the motorcycle immediately before the accident, the evidence at trial was that the garda vehicle never exceeded 50 miles per hour along this stretch of roadway. Unless one took the view, which I do not take, that the gardaí in the following vehicle should have opted out of any further interest in these events by halting their car, I do not believe there was any breach of duty which the occupants of the garda vehicle owed, either to the driver of the motorcycle, or to the pillion passenger, over these last few miles, even if the plaintiff is deemed to be no more than an involuntary participant in events at that stage.
Even if it had been negligent on the part of the gardaí to follow the motor bike towards Tipperary, the question would still have to be addressed as to whether the driving of Mr Lynch at or near the scene of the accident constituted a novus actus interveniens such as would have exonerated the appellant’s agents in any event. The following passage in McMahon and Binchy, Irish Law of Torts, 3rd Ed., (Dublin, 2000) (at p 77) is useful in considering the kind of actions which may amount to a novus actus interveniens by a third party (who in this instance would be Mr Lynch):-
“From the case law we may state the following propositions with some degree of confidence:
1) If the third party’s act is wholly unforeseeable then the original defendant will not be liable
2) If the third party’s act is intended by the original wrongdoer, or is as good as programmed by him, or if it is an inevitable response to the defendant’s act or is very likely, then the original defendant is still considered to be the operative cause in law. The third party’s intervention in these circumstances is not a novus actus which will break the chain of causation between the plaintiff’s damage and the defendant’s conduct. This is even more obviously true where the intervening event is not a voluntary act at all: where A pushes B against C.
3) If the third party’s action is foreseeable (though not probable or likely) then the courts will look especially closely at the nature of the intervenor’s act in addressing this problem. If the intervenor’s act is criminal or reckless in the subjective sense, then it is likely to be considered as a novus actus. Similarly if the third party’s act is intentional. …if the intervenor’s act, however, is merely careless, negligent, or perhaps even grossly negligent, it may not be considered sufficiently strong to break the chain of causation between the original defendant and the plaintiff’s injury, although much will depend on the facts of the case. In Crowley v. AIB and O’Flynn and Others [1988] ILRM 225 we have seen that a negligent omission by the third party was deemed sufficient to break the chain and relieve the defendant.”
The authors go on to suggest that the courts in recent times are more likely to settle for a ‘multiple cause’ finding and apportion losses between concurrent wrongdoers. Thus at p. 78 the authors state:-
“All this means is that the courts are less likely to find that a novus actus is the sole cause of the plaintiff’s injury nowadays. It is only in very extreme cases that the nature of the third party’s act will break the chain completely between the defendant’s original conduct and the plaintiff’s damage.”
In my view this is an extreme case. It is true to say that the motorcyclist asserted a belief that he was still being pursued by the garda vehicle as he left Cashel. Even if that was his initial belief, he must have known that the garda vehicle, which had been caught up behind the articulated truck which presumably he himself had overtaken, was nowhere near him as he came to Kilfeakle. He was not being driven at, intimidated or menaced by the garda vehicle in any way whatsoever. Indeed after a pursuit distance of 28 miles it would be difficult to surmise that Mr Lynch could have been in a ‘panicked’ condition, if indeed he ever was in the first place. As we know the garda vehicle was behind by perhaps more than a mile at the stage when the accident occurred. Did the garda vehicle in those circumstances cause or make any real contribution to what happened at the bend in the roadway? It seems to me that any sensible application of the principles laid down in Conole v. Redbank Oyster Company [1976] I.R. 191 must lead to the conclusion that the effective negligence leading to the accident was that of the motorcyclist. As Henchy J stated in the course of his judgment in Conole (at p 197):-
“However, as far as the negligence that resulted in the drownings is concerned, any such default by Fairway would have been merely a causa sine qua non and not a causa causans.
In terms of legal causation, there was only one act of negligence in this case: it was the defendants’ act of putting to sea in a boat which they knew to be unseaworthy and which was overloaded with unsupervised young people. Once the defendants
are shown to have been aware of the danger involved in that act, they are no more entitled to shed any part of their responsibility on to Fairway, on the ground that Fairway supplied an unseaworthy boat, than they would be entitled to saddle another person with part of the liability of the unseaworthiness of which they had knowledge had been caused by an earlier act done by that other person, e.g. a negligent collusion or a malicious injury caused by him.
The direct and proximate cause of this accident was the decision of the defendants, acting through Mr. Hugman, to put to sea with passengers when they had a clear warning that the boat was unfit for the task. The defendants were the sole initiators of the causative negligence.”
The distinction between a causa sine qua non and a causa causans was further addressed by this court in Kenny v M.I.B. (Unreported, Supreme Court, 3 April, 1995) in circumstances where a negligent truck driver caused injury to a child who had been thrown from the open back of a truck which then rolled over him. In the course of his judgment Blayney J stated (at p. 3):-
“While there is undoubtedly a close connection, as the learned trial judge found, between the plaintiff’s being thrown from off the truck and his injury, in my view it was no more than the causa sine qua non. The plaintiff would not have received his injury had he not been thrown off the truck, but the causa causans was the back wheel of the truck going over him. And this was made very clear by the evidence of the plaintiff’s surgeon…”
Thus if there had been some want of care in the present case in continuing to follow the motor bike towards Tipperary, I am nonetheless firmly of the view that it was not causative of the plaintiff’s injuries, nor did it contribute to them in any material way. Putting it another way, the driving of the garda vehicle may have been a causa sine qua non but the causa causans of the plaintiff’s injuries was Mr Lynch’s driving at the bend at Kilfeakle.
Nonetheless, given that the plaintiff in this case may well have been completely blameless (despite allegations of contributory negligence raised against her), it is worth considering whether policy considerations should encourage this Court to relax the requirements of establishing causation for that reason. In the instant case that would mean that the Court would have to infer that the mere fact of the garda pursuit is of itself and without more to be regarded as having made a material contribution to the plaintiff’s injuries. However, I think that would be a hazardous and dangerous course to adopt not least because there are in this case policy considerations of an even more compelling nature which require that the gardaí be permitted to carry out their discretionary powers in upholding the law without undue fear or apprehension of sanctions for so doing. A high premium is placed on road safety in modern Ireland where there is an unacceptable level of road deaths many of which are caused by speeding. To hinder the gardaí in their efforts to prevent such offences by unduly relaxing the requirement to establish causation would offend those “just and reasonable” considerations to which Keane CJ adverted when considering the duty of care in Glencar Explorations p.l.c. v Mayo County Council (No 2) [2003] 1I.R.84.
I find I must disagree with the inferences drawn by the learned trial judge in answering the questions posed for resolution at the end of the case. Indeed the form of the question is based on the assumption that the chase was one seamless and unchanging sequence from start to finish, an inference which in my view was mistaken having regard to the evidence. For the reasons already stated, I believe the standard of the duty of care varied at different points in this sequence and that there was no breach of that duty on the part of the appellant’s agents which was legally or factually causative of the accident at Kilfeakle. In this context it is important to note that Mr Lynch had always intended taking the Cashel/Tipperary road for the purpose of returning to Limerick from where he and his girlfriend had earlier travelled, so that there was no question of being forced to take the particular route by any garda action.
I am satisfied that the plaintiff’s injuries were caused entirely as a result of the reckless driving of Mr. Lynch. This recklessness was all the greater as he knew his girlfriend, who was a regular traveller on the bike with him, was pregnant at the time. He exposed his passenger to shocking danger and so admitted at the trial. It is not at all surprising that in the aftermath of the accident the plaintiff was heard to repeatedly state “I’ll kill him” in reference to Mr. Lynch. It emerged in evidence that Mr. Lynch had no insurance for his driving of the motorcycle, had been stopped on a previous occasion for having no insurance and also had a false number plate on the bike. It also was mentioned at the trial that he was subsequently convicted of various offences under the Road Traffic Act, 1961 arising from this incident. The significance of these matters lies only in demonstrating that Mr. Lynch had a motive of his own to accelerate away from the speed trap at Urlingford. It must be borne in mind also that Mr Lynch was already significantly in excess of the maximum speed limit and putting his pillion passenger at risk when first seen by the gardaí at Urlingford. In my opinion the only unbroken and seamless thread in this entire saga was the utter recklessness of Mr Lynch in his driving of the motor cycle on the evening in question. The proximate and immediate cause of the plaintiff’s injuries was the fact that at a bend marked by a continuous white line Mr. Lynch went totally onto his incorrect side of the road into a head-on collision with an approaching vehicle.
It is a tragic situation given that the plaintiff that the plaintiff, who at the time was only 20 years of age, was in the early stage of a pregnancy and suffered a miscarriage and other extremely serious injuries in this accident.
In my view however the appeal must succeed and it follows that the plaintiff’s claim must be dismissed.