Negligence

Davies v Radcliffe 1990

officer having regulatory, licensing power have no duty of care to depositor on

bank’s failure.

Certain point noted-

1. Foreseeability not sufficient criteria of liability, even when policy consideration

can exclude such liability

2. proximity bw parties necessary for liability

3. Not desirable to state situation where proximity may/may not be held to exist

4. preferable, law to develop categories of negligence incrementally and by analogy

with decided cases. Rather than applying general principle/donoghue in every
situation, go by precedent, be slow.

—>Indian Scenario - Pramod Malhotra v UOI 2004

rbi granted license to bank tho an inspection found several shortcomings in

functioning. Due to poor financial conditions, restrictions placed on withdrawal.
Customer sued rbi.

Decision of Yuen Kun-Yeu and Davis followed by SC. RBI not liable as
relationship bw depositor and rbi not such that reasonable to impose liability of
negligence.

Adopted an incremental approach as in davis, capro, Murphy.

Caparo v Dickman - 3 stage test and retreat from anns

(accountant, share acquisition case)

House of lord- two approaches that the court should adopt to determine duty of
care owed- 1. 3 stage test or 2. incrementally and by analogy. thus back to trad
limit on liability-retreat from anns’

3 stage test shift from gen principle of duty- where foreseeability of damage
enough to raise duty, negated only in policy grounds.

Caparo’s 3 Stage Test-

1. reasonable foreseeability of damage by deff action— doesn’t owe a duty of care

to the world, P must fall within a class of indiv put at foreseeable risk

Negligence 1
 2. proximity- differs from ann, here wider than simple physical nearness(same as
donoghue). More than simple foreseeability of harm(ex- sutradhar case)

3. if court feels it’s fair, just, reasonable that law impose duty to take reasonable
care.

here all 3 step equally imp(unlike anns where public policy not so much-hongkong
case), hence restrictive

Proximity- in anns and donoghue proximity(just means reasonable foreseeability

that D carelessness can cause P harm) didn’t add any additional req to
reasonable foreseeability, but in caparo changed it by adding as a 2nd element,
crucial, not just foresee.

Proximity- 2 Points

1. b/w D and P- when D caused direct harm, proximity clearly estb, can be estb
thru foreseeability

In failure to act, econ loss, mental trauma-recognizing duty based on

foreseeability is problematic. The law will insist on substantially closer
relation b/w parties
Home Office v Dorset Yatch Co-home office held(offender under watch of
police so duty laspe, unlike in hill v cc

Hill v CC West Yorkshire case where no prox bw police and victims of crime

family of last victim of serial killer sued or negligence for failure to catch
him and prevent

held police had no special duty of care owed to P, just to members of

public at large. Nothing to take the case outside of gen rule of denying
duty of care regarding willful wrongdoing by others

2. B/W D and source of harm- Sutradhar Case

Fair, Just and Reasonable

Barrett v Enfield London Borough Council 2002

explained just, fair, reasonable- whether to impose liability will depend on

weighing in balance the total determinant to public interest in all cases vs
the total loss P if no cause of action to individual loss.

What is fair, just and reasonable?

Negligence 2
 While assessing req of fairness, must consider relationship b/w parties-
proximity- Stovin v Wise(1996)

Q. A ship had crack, a surveyor employed by N, marine classification society,

called by master. S said good to go after temp fix. But ship sunk, P owner of
cargo got some money, limit set by convention- they claimed rest against N.

Does N has duty of care?

Marc Rich and Co AG v Bishop Rock Marine Co ltd(1996)

Proximity there, but public policy pointed to no duty of care.

Unfair to impose duty on public auth, not fair, just reasonable.

Robinson v CC of West Yorkshire Police-claim for acts in course of

invetigatng crime and catching offender will fail the 3rd stage of test

Also Murphy v Brentwood-builder not liable as damage didn’t cause

personal/other prop injury. Since both absent, remedy in contract, not
negligence. only applicable to pure econ loss

Caparo wasn’t a test, rather factors to consider . To determine duty of care-

incrementalism and analogy

3 stage test not accepted-

1. Micheal v Chief Constable of South Wales 2015- woman called police, but
call handler thought no immediate req, but when police reached, she was
murdered. Police had no duty of care, used incrementalism.

2. Robinson v CC of west yorkshire- pedestrain knocked down while arresting

criminal, rejected 3 stage test. Used incremental approach dealing w novel
claims. Liable

Duty of care chart-

Precedent?—>if no, any precedent analogous?—>if no, no duty of care. If yes, was
it reasonably foreseeable?—>if no, no duty of care. If yes, is it just, fair etc to
develop law incrementally from precedent to determine duty—> if yes, duty of care. If
no, no duty
Caparo incremental approach- cited Sutherland Shire Council v Heyman 1985-by
precedent not massive extension of prima facie duty of care- to tell what fair, just.
Not a gen rule, incremental approach

Negligence 3
 Incremental approach

M v Commissioner of Police for Metropolis- if in precedent duty of care rejected,

then difficult to estb-following precedent

3 factors in caparo to make incremental analogy from existing precedent in novel

case- foresight, proximity and imposing duty fair, just or reasonable.

Duty of care to specific problems-

situations-

1. Omissions- old man in market, collapses, no one helps, manager asks is there
any doc? nurse, she tries but fail so die. Can anyone be sued here? Any duty of
care?

no liablity for pure omissions- lord goff- Smith v Littlewoods(1987)-if no duty,

no liablity, even when act easy

Sutradhar Case v National Envi Research Council

just because someone has expert knowledge, doesn’t create duty to

whole world. Only liable for what they did, not for what they didn’t.

Omission in certain relation

Pure omission- no liablity, but some instances does create one

1. D create source of danger, even w/o fault

Q. Fire fighter didn’t know source of fire, turned off sprinkler system, created
adverse effect and spread more. Building damaged. Is there liability?
Omission- duty of firebrigade

Capital&Countless plc v Hampshire County Council(1997)

Fire fighter liable because of his act of offing. Fire service has no duty to
individual in emergency call. No right to sue fire service if negligent. Gen
private indiv can’t sue govt services.

Q. Fire brigade called for P’s neighbour. They saw fire already being
extinguished, checked no evidence of continuing danger. But then fire broke

Negligence 4
 out in P land. Sue that didn’t ensure all fire and risk eliminated. Is there any
cause of action?

Not negligent

Q. Fire broke out but fire hydrant wasn’t working and had to bring water from
mile away, damage, fire could have been stopped if water was there.
Statutaory obligation of fire brigade to ensure all necessary req avaliable.
Can they be sued?

violation of statutary obligation but no omission to act so no negligence.

2. D assumption of responsibility for P welfare

Q. Ambulance called, call accepted but took way long so situation got worse

Kent v Griffiths(2001)-taking call-assumptn of resp

diff bw ambulance and fire/police

Q. naval officer got extremely drunk and passed out, a aduty officer org him to
taken by stretcher but no one kept a watch on him to keep in safe position, so he
choked on vomit. sued naval officer and minst of defence.

Barrett v MoD(1995)

until deceased collapsed, he alone responsible. After the D assumed

responisblity by putting him in bunk, had duty of care.

Q. A jailer attacked by prisoner, despite call for help the fellow officer nearby
didn’t help. P argues he was obliged to help a fellow officer.

Costello v Chief Constable of Northumbria Police 1999

police officer assume responsiblity to have each other back. A positive

duty imposed when omission makes another officer suffer harm. Held
breach of duty, vicariously liable.

3. D status of holding a position/office(employer, owner of land)

Reasonable Man
2 question come up while examining breach of duty

Matter of law
how deff ought to have behaved? what are req std of care in that situation?

Negligence 5
 Matter of fact

how D did behave? did they fall below std?

Negligence is omission to do smth which reasonable man would or smth which

he won’t.

Blyth v Brimingham Waterwork co 1856- unexpected forst

D not judged by benchmark of what reasonably expected of him, but that of a

reasonable person.

Determining breach of duty-

1. aserctain quality of reasonable person

2. how much care reasonable person would have taken in that situation

3. whether D took less care than reasonable person

Test of reasonableness

std of care not std of perfection, reasonable. Objective not subjective

reasonable care of driver not same as doc, doc std same as other doc

Reasonable Man- not perfect but common vigilance, attributed with reasonable
knowledge with the time of breach of duty(Roe v Ministry of Health 1954. std of care
of ‘47 not ‘54 as case came up in 54)
if D is a motorist, how much care would reasonable motorist take in that situation?

Test of reasonable man is obj, Q is not what could this particular man done but what
level care his activity req. Personal idiosyncaries are gen irrelevant. std of care not
dependent on personal charactersitc of D.

Q. P agreed to give D driving lesson, D panicked and failed to control, gave her best
effort. Car at walking pace.

Nettleship v Weston 1971

D convicted for not due care. All driver held to same std(to avoid confusion)
as experienced driver. Std measured objectively, even if doing her best.
Contributary negligence estb

Negligence 6
 Birch v Paulson- D not liable, P drunk got in front of car and got injured.
Objective std is not std of perfection.

Liability even if D not genuinely at fault- eg nettleship

but in some cases reverse happened- Mansfield v Weetabix 1998(D not liable
for crashing lorry into shop as unknown to D, he had medical condition that
starved his brain of gluscose, accident because of this)

Court observed that if he had known of condition, then he will be liable.

In case of child, std of care based on reasonable child. Exception- indulged in

adult activity, child driving care, will be held to std of reasonable adult driver.

Q. a boy of age 13 playing tag and walking backwards in walkaway teasing his
friend, collided with P and P suffered injury

Orchard v Lee 2009

rejected claim, simple accident due to horse play bw 13yr. Normal activity of
child

CoA held child liable only if conduct careless to a very high degree or fall
significantly outside of norm for child’s age

nothing to suggest a 13yr old would foresee there was likely to be injury
beyond while a game of tag in play

Objective Standard

if D incapitated through no fault of his own, not liable. eg-Sudden heart attack

but certain cases prior fault doctrine, where didn’t do anything before. Like
not taking meds-liablity on D for this point

If D represents expressly/impliedely possess particular skill, reasonable

person will be someone with that skill- regardless if he actually has that skill
or not

A reasonable man- up to date with gen developments and gen practices

of that special field

not above/below std of care expected

Negligence 7
 How much care RP would take, to decide-

1. whether risk of injury reasonably foreseen?

factors-

1. the risk should not only be imaginable but also reasonable

prospect/expectation that it’ll arise- Fullowka v Royal Oak Ventures
Inc 19

2. opinion of judge on this may vary

3. point in ques- foreseeability of risk not just mere small probablity

4. not required for precise risk of injury that materalised to be reasonably

foreseeable, what is req is for gen risk to be reasonably foreseeable
Alexis v Newham LBC 2009

unsupervised students poured cleaning liq in her bottle, court held

req for reasonable foreseeability satisfied. Enough to foresee that
unsupervised might make mischief. No matter if the precise
danger not reasoably foreseeable.

student not liable

2. if yes, then how would he have responded to it?- called as negligence

calculus

4 weighing factors while deciding

1. Size of risk

the lower the likelihood, more likely reasonable person would

ignore

not just foreseeablity but also severity matters in std of care-

Perry v HARRIS 2008

Conduct of D is assesed at time of breach is test of foreseight-

not hindsight if smth seems acceptable at the time that injury, if
risk of injury low then not negligent— Roe v Min of Health 1954

hospital didn’t know at the time the risk of storing injection

soln in phenol, it caused paralysis. std of care when accident
occured in 1947 not of 1954 when case heard.

2. Gravity of risk

Negligence 8
 the more serious injury, more likely D to fall below the req std of
care

Beckett v Newalls Insulation Co Ltd- more care while

carrying dynamite than butter

Paris v Stephney BC 1951

P working in garage, blind already in one eye, a metal

chip flew and made blind in both. No googles provided

Court held tho chance of injury low, seriousness of

consequense should also be taken into account if
accident occurs while accessign precaution a reasonable
employer should take, google yes for one eye blind man
as if 2nd eye gone full andha

3. cost of taking precaution

lower the cost-in time/money- more reasonable is that someone

should take that precaution.

Cost of taking precaution is very onerous, it is less likely that it

will be considered to D to bear such cost esp when risk of injury
low- Latimer v AEC Ltd 1953

Factory-floor wet after flood-took reasonable actn,s till P fell-

argued for closure-held not possible

4. Social value of the activity

greater social cost, more likely court find D to dispense the

precaution

std of care usually lower when D acting in heat of moment or in

emergency or rescue op

Watt v Hertfordshire County Council 1954- fireman injured by

heavy liftin gear in back of lorry to save a woman, rejected claim-
emergency situation. saving a life justifies taking considerable
risk. Risk(not saving life) of taking due care balance risk of act,
must balance risk.

Negligence 9
 Instance- P standing on highway in road adjoining a ground, struck by a
ball hit out of ground. Ball travelled 91m and over 7foot fence. P sued for
negligence.(Negligence and nuisance)

Bolton v Stone 1951

not liable. The possiblity of ball out of ground was foreseeable, but no
since chances so low that reasonable man wouldn’t have

ratio- std of care in law is of ordinary careful man, but an ordinary

man doesn;t take precaution about every foreseeable risk, takes
precaution against risks which are reasonably likely to happen’
Balancing the act

Tomlinson v Congleton Borough Councli 2003

in determining std of care, courts engage in maintaining a balance of all the

above factors

Proof of Negligence
breach, 2 q- how ought to behave, how did behave.
2nd q-proof of negligence- burden of proof on P that D action fell below std of care.

Some exceptions to it, like road accident, statuatry case

in some other case, court infer negligence from circumstance in which accident
took place. It’s called res ipsa loquitur-things speak for itself

allows D to succed even where no evidence or whether it was attriuable to

negligence on part of D, only matter is P was injured

Subhangwati- can’t prove technicalities, whether cement used good etc.

fact is Achutrao?

Two views on this doctrine

1. common sense- sometimes likelihood that the accident was caused by D

negligence such that not necessary to explain

2. formal doctrine- shift burden of proof from P to D.(D liable if he is unable

to prove, on the balance of probablitites, the absence of fault on their
part

Negligence 10
 But gen consious, it doesn’t shift burden of proof, simply means sometimes
circumstance of negligence can be evidence of negligence

This doctrine arises from Scott v London and St Katherine Docks Co 1865-
sugar bag

2 things for this rule-

1. D or servant should have control over thing that caused

injury(clocktower)

2. accident must be such that wouldn’t happen if used proper care

if these 2 things there consider applying rule

Another case which applied this principle- Byrne v Boadle 1863

Passerby P knocked down by barrel of flour, rolled out of window. P

couldn’t provide any evidence on how accident happened other than he
was injured

accident itself is prima facie evidence of accident

Application

It’s merely rule of evidence, not applicable when accident, negligence

there but don’t indicate who was negligent

Cases applied- Achutrao(cloth inside- vicariously liable), Municipal

Corp of Delhi v Subhangwati 1996(clocktower), Shyam Sunder v
State of Rajasthan(vic)- truck of state caught fire, loss to storekeeper.

Special Skill
when person professes to have special skill(reasonable man doesn’t
have), even if actually doesn’t, needs to deal with appropriate level of
competence

D can’t escape liablity by saying followed common practice=gen rule.

Needs to have that skill

Indian case- achutrao case, medical opinion may defer but as long as
doc acts in a manner acceptable to med profession and due care, hard
to prove guilty of negligence.

Negligence 11
 Q. P given electro therapy, w/o relaxant drug and w/o appropriate physical
restraint. Fracture hip, one of the possible consequence of treatment which
he wasn’t warned about. At that time med prof had conflicting views about
neccisity to administer drug and whether imp to warn patient the risk of
injury.

Bolam v Friern Hospital Managemnt Committee 1957

D not liable as other responsible doc would act similarly

a man need not possess highest skill, act in accordance as a proper by

a responsible body of doc skilled in that

Bolam Test

test for all profesional professing special skill. Like doc must have
reasonable degree of knowledge and care

even if a respectable body of medical prf agree, not below(even if it’s

minority opinion

burden of proof to P, to prove activitiy was below std req of that

profession

Bolitho v City and Hackney health Authority 1998 gave qualification to

Bolam test, added one req

Q. Nurse called doc but she didn’t come and boy wasn’t incubated(P argues
boy would have been saved), doc says she wouldn’t have incubated even if
agreed, her failure to attend didn’t cause death.

Bolitho case

D not liable, reasonable body of opinion would have acted as she did,
but emphazied that common practice of profession demand check and
balances. if professional analysis doesn’t hold to logical analysis, opinion
not reasonable.

brief of bolitho- the doc knows best only if he acts reasonably and
logically and get his fact right.

i.e. if particular practice even if widely accepted within a profession, is

logically insupportable, D can’t escape liabiltiy by showing others would
have done the same.

After this the 2 questions now-

Negligence 12
 1. acted in accordance as by proper by respectable body of medical
opinion?

2. If yes, is the practice itself reasonable and logical?

controversial most of the times, esp when warning risk to patients of

treatment for medically incapacitated adult.

Q. Surgeon warned about possibility of disturbing a nerve root and

consequence, but didn’t warn of 1percent risk to spinal cord, P said if he had
known he wouldn’t undergo. No evidence op was negligently performed

Sidaway v Board of Governor of Bothlam royal fleet(check mf)

no breach, other reasonable doc act same. But one caveat- in case of
grave adverse consequence, judge might conclude that disclosure of
particular risk so obv necessary to make an informed choice that no
reasonable prudent medical man would fail.

Q. (bolam test not applied) P surgery to remove disc, tho P had asked doc,
doc didn’t tell the known risk to nerve damage result in paralysis after op.

Chester v Afser 2002

D liable, breach of duty- not informing risk. P remediless, had

conventional but for test applied

in special circumstances bolam test need not be applied. In bolam non

disclosure not a matter

Q. P’s birth son died due to O2 starvation, 9-10%, wasn’t told risk of mech
problem during labour. Doc said she didn’t want to spend a lot of time and
risk very small, if mentioned then would have preferred C section.

Montgomery v Lanarkshire Health Board 2015

appeal in SC- favour of P, held right of P to make own decision and

given sufficient info. Doc have duty to take reasonable care to ensure P
of material risk and any alt. Consent must be taken.

due to this case sidaway overruled

resp of doc-

Negligence 13
 doc can’t lawfully op on adult w/o consent, but if patient incapable of giving
consent- can treat if in best interest, only if to save life, improve sit or prevent
detoriation in physical and mental health(res)
children- guardian consent

Responisblity of Hospital-
vicarious liablity even in medical, now after- Cassidy v Minister of Health
1951 , duty of care-co extensive with duty owed by med staff for whom vic
liable
India-

Bolam test applied- Jacob Mathew v State of Punjab 2005

highest not req, negligible if not possess req skill or not exercise
reasonable competence

Defences
if P fails to prove breach, duty, remote, claim dismiss. Burden of proof on
P, to prove all 3 cond. But if all 3 exist, D can raise defence in some
cases-, can reduce the amount of damages, tho negligent but other
reason to not hold liable

1. Contributary Negigence(only avaliable ffor negligence)

2. volenti non fit injuria

3. inevitable accident

4. illegality

Contributary Negligence

only on conduct of P. It doesn’t defeat P claim but reduce amount of

damages for D.

when act/omission by P part, materially contributed to damage and such

that can be properly described as negligence.

contri- duty of P to himself

Negligence 14
 Q. A obstruct road by pole, B at excessive speed. sunlight present and saw
100 yard away

Butterfield v Forrester 1809

A not liable, if he had used ordinary care, must have seen the
obstruction. one person fault can’t dispense other duty of care

Nance v Bristish Columbia Electric Rly 1951

only necessary to estb- injured party didn’t in his own interest take
reasonable care of himself and contributed to his own injury.

when P also negligible, can’t be compensated in full

3 Qs-

1. did P fail to exercise reasonable care for his safety?

2. did it contribute to damage

3. by what extent damage be reduced

Q. claimant riding at back of slow moving trucked veichle, contrary to company

regulation. Truck crashed into him, he sued his employer-driver for negligence.

Jones v Livox Quarries Ltd 1952

contributary negligence, resonably foreseen that if he didn’t act as

reasonable prudent man, he might hurt himself. And he must take into acc
the possiblity of other being careless.

Std of care and Burden of Proof

Standard of care is same as in negligence.

Burden of proof is on D not on P to disprove it- if D negligence estb, onus on

D to estb P contri was material cooperating cause-

Caswell v Powell Duffryn Associated Collieries Ltd 1940

Lewis v Denyre 1939

to estb contri, D must prove

Negligence 15
 1. P failed to take ordinary care of himself

2. his failure was contributary cause of accident

Even tho P carelessness was there, but if injury sustained arose from
3rd part danger beyond his capablities.

Can’t contri when P carelessness not any bearing to injury

Even if P’s carelessness was ‘but for’ cause of their own injury, defence
not avaliable if injury arose from risk not foreseeable.

St George v Home Office 2008

P fell from top bunk after seizure due to drug withdrawal, not contributary
negligence

negligence of prison auth in allocating top bunk, they knew history and P
couldn’t be said to have caused his fall

Imp Part of contri

Last Opportunity Rule

despite initial negligence, D had last opportunity of avoiding accident

thus P shouldn’t be liable

Davies v Mann 1842

overcoming contri neg by P(after neg, contri). P claims the above.

Q. P tied feet of donkey and negligently left it on highway, D came along with
faster pace than ought to, wagon ranover and killed donkey.

Davies v Mann

D liable, had option of D as last opportunity to reduce speed. even if

absence of P negligence would not have caused accident

Q. servant of P had negligently piled one coal truck over another. D’s engine
driver didn’t know that, he felt some resistance when it came under bridge
but instead of examining, he increased speed. Bridge damaged

Radley v L and N.W Rly 1876. rule of davies v mann. even tho not
aware, had last opportunity to avoid accident.

Negligence 16
 Rule is- if accident happen due to combined negligence-liability on person
who had last opportunity to avoid by taking reasonable care. But a D who
didn’t had last opportunity, still liable if he would have opportunity ‘but for’ his
negligence.

Q. A was being driven in wagon by X who by negligence of him and A got on

railway company’s level crossing when company’s train was approaching at rate
of 35-40m/hr. Train driver saw the wagon, applied break, had the break been in
good cond then would have stopped and not killed A. Is Rly comp liable

British Columbia Electric Rly v Loach 1916, company liable.

Yes, if breaks would have been good then they would have had a last
opportunity.

Q. D’s car ran out of fuel at night He left it where it stood on road at road w/o
lights tho he could have pushed it w/ assistance on grass off road. P’s husband
driving bike ran into car and got killed.

Henley v Cameron

coa- D liable, negligent in failure to keep car in safe position

???Q. A’s widow sued D for death of A caused when omnibus struck the lorry A
was riding. CoA found all 3 parties(driver of bus, driver of lorry, A-as he was
dangerously standing in lorry steps, against guidelines). Driver of lorry saw A
standing on steps of lorry, did driver had last opp to avoid?

Davies v Swan Motor Co 1949

last opp rule can’t be applied. It’s impossible to say dangerous position of
deceased man on lorry had ceased to be a contributing factor to damage he
suffered. there was contri

Distinguished Davies v Mann- P’s neg ceased to be op factor. P functus

culpa but deceased had been in continuing position of danger on moving
veichle.

After this court prefer not to apply last opp rule.

Courts thought contri neg bit harsh, so brought law reform(Contributary

Negligence) Act 1945- regulates amount of damage to be shared. After this, no

Negligence 17
 such thing as P denied of damage, court decide how much reduced to the extent
‘just and equitable, having regard to claimants share in responsiblity of
damage(not accident)’
still relevant in India, check if still rel in UK

‘just and equitable, having regard to claimants share in responsiblity of damage’

Stapley v Gypsum Mines Ltd- when looking at how much damage will be
reduced, court look at comparitative blameworthiness to relative imp of
claimnants act in causing the damage.

Applcatn in India

followed, noted in Vidya Devi v MP State Transport Corp- courts have power
to reduce to extent it seems just and reasonable

TO Anthony v Karvarnan 2008- contri negligence asserted

Causation
after breach, need to prove breach caused injury.
Did D’s negligence cause the harm? two stages

1. D’s action a necessary pre-condition—factual causation

2. is it thus the cause of harm?—legal causation

caustation can be factual and legal, prove by P.

Factual causation-

estb whether D in fact caused the harm— But for test

Harm suffered by P must be caused by the fact that D’s act fell below
std.

But For Test

But for D’s carelessness, would the P have escaped harm? If yes,
cause in fact.

eg- doc failed to examine a man properly, later died. Doctor

admitted negligence but said he had not caused the man’s death.
Even if he had have acted properly, would have died anyways as it
was too late to do anything to save him. It could not be said that ‘but
for’ the doctor’s negligence the man would not have died.

Negligence 18
 held doc negligence not a necessary condition, Barnett v
Chelsea and Kensington Hospital Management Committee

Issue w test

multiple potential causes and lack of scientific knowledge

unjust result, depends on %. Sometimes not applied, thus test

not applied sometimes- McGhee-brick laying, fairchild-2
empolyer

Legal causation- should the factual causes be excluded from being as a

cause in law. Here test of remoteness included.— Test of remoteness and
Intervening act

damages for those act which caused by direct consequences of D’s act.
not remote

now we use test of foreseeability

Test of directness

applied in re polemis case- neg act of D’s servant, fire

once tortious act estb, D liable for all damage which ‘is directly
traceable’

foreseeablitly imp but liablity extends to all damages directly linked

to negligent act.

Test of Foreseeablitiy

Wagon Mound 1-warf(2nd-ship) in fire. laid down preference for test

of foreseeability over directness.

risk of catching fire-foreseeable. ‘if real risk can properly be

described as remote-not reasonably foreseeable’

liable for any damage can be reasonably foreseen due to breach,

however unlikely it may be. Unless it’s far fetched.

If either causation test fails, D escapes liablity.

Negligence 19