Damage Model Answer

• For a successful negligence claim, the D must not only have had a duty of care and broken it, but this breach must have CAUSED the damage/injury.
• The breach must cause the damage so the courts first consider factual causation. In order to be the factual cause of the damage, the defendant must satisfy the 'but for' test which asks 'would the claimant have suffered injury/damage 'but for' the D's act or omission?' If the answer is no then factual causation is satisfied but if the damage would have occurred despite the breach then causation isnt satisfied as seen in the case of Barnett v Chelsea & Kensington Hospital Board when the claimant would've died anyway even if the doctor would've examined so the but for test was not satisfied.
• When looking at legal causation, whether there are any intervening acts such as an act of the claimant (Mckew v Hollands), an act of nature (Carslogie Steamship Co v Royal Norwegian Government) or an act of a third party (Knightly v Johns) will be considered. An intervening act can break the chain of causation if the injury/damage was a foreseeable consequence of the original negligent act or omission.
• Secondly the damage must not be too remote from the Ds actions. In order to decide this firstly, the C must prove that the damage was reasonable foreseeable, it must not be too remote (unpredictable). This was demonstrated in the Wagon Mound case where oil was negligently spilled into the ocean and caught fire due to welding works and destroyed a wharf. The damage caused by the fire here was too remote as it was not reasonably foreseeable that this would happen. It was too remote from the original negligent act.
• Not only must the damage be foreseeable, but the type of damage must be foreseeable to the defendant. It is only the type of injury that has to be foreseeable, not necessarily the precise manner in which it occurred. If the damage that occurs is of a totally different type to what is expected then it will be too remote. This was shown in the case of Doughty v Turner Asbestos.
• But when the damage that occurs is worse than expected but of the same type then it will not be too remote as in the case of Bradford v Robinson rentals where it was foreseeable that C would suffer some type of cold injury so it did not matter that frostbite was very unlikely and worse than expected.
• Finally the egg shell skull rule must be considered when discussing remoteness of damage. If the claimant has some pre-existing condition which makes the damage worse then the defendant (NAME) must take the claimant (NAME) as he/she finds them as shown in Smith v Leech Brain. The egg shell skull rule means that the defendant (NAME) will be responsible for the full extent of all injuries and damage to property
• If all three tests are proved, the court will conclude that the loss caused by the defendant (NAME) to the claimant (NAME) is not too remote.