Essential GCSE Law by Kenny Chin

Author:Kenny Chin
Language: eng
Format: epub
Publisher: Routledge

It should be understood that not every wrongful act, which causes harm, is subject to compensation. Sometimes, an injured party has to accept that his case was a pure accident and that nobody is liable. The law has to draw a line somewhere, otherwise we may end up in a society where everybody is suing everybody else. If this is understood, there should be less confusion in studying this area of law.

Throughout the years, the courts have developed some principles regarding remoteness, the first being the use of the ‘foreseeable consequence test’. In The Wagon Mound (No 1) (1961), a ship negligently discharged fuel oil into Sydney Harbour. The facts found were that a piece of cotton waste was floating on the oil which was set alight by sparks from nearby welding. The fire damaged a wharf. The Privy Council held that the defendants were liable for the fouling but not for the fire damage. The ratio was that the type of damage which is subject to compensation should be reasonably foreseeable by a defendant when he acted carelessly. In Doughty v Turner Manufacturing Co Ltd (1964), an asbestos cement cover was dropped into some molten liquid. An explosion followed and the plaintiff was injured. It was held that the splash could be foreseeable but not the explosion and, therefore, the defendant was not liable. Further rules established are that, as long as the type of damage is reasonably foreseeable, it does not matter how it came about and the extent of the damage is more than it could have been foreseen.

Res ipsa loquitur

Res ipsa loquitur is a Latin phrase which means ‘the thing speaks for itself’. Generally, a claimant has to prove that the defendant is negligent. However, there are circumstances in which a claimant cannot show how the accident actually came about, for example, the claimant was under an anaesthetic during an operation, then res ipsa loquitur may be invoked to help him. All he needs to prove is:

(a) that the thing causing the damage is under the defendant’s exclusive control;

(b) that the accident could not have happened in the absence of negligence.

If the court accepts these, then the burden of proof will shift to the defendant, who has to prove that he was not negligent. Examples of situations where defendants have been found liable under res ipsa loquitur include swabs being left in a patient’s body after an operation (Martin v Osborne (1939)) and a plaintiff being struck by an object falling from the defendant’s premises.

Contributory negligence

The old common law rule on contributory negligence was strict. If a claimant’s injury was caused partly by his own fault, no matter how small and insignificant it was, he could not recover anything. The Law Reform (Contributory Negligence) Act 1945 has changed this position. Section 1(1) provides that:

Where any person suffers damage as the result partly of his own fault and partly the fault of another person or persons, a claim in respect of that damage shall not be defeated

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