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Summary Actionable Damage in Tort of Negligence Notes
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Notes on what constitutes actionable damage in the tort of negligence from lectures, textbook and cases
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Actionable Damage Once a breach of a duty of care has been established, the claimant must show that the breach caused him
damage.
Four elements typically considered when identifying damage that is actionable in negligence:
i) factual causation,
ii) legal causation,
iii) the damage itself and
iv) remoteness.
It can be difficult to distinguish between remoteness and the measure of damages in cases where liability
is not disputed.
Generally speaking, a question of what the defendant is liable for and the question of how to quantify
that liability.
Baker v Willoughby [1970] AC 467
Where the claimant suffered an injury to his left leg as a result of the defendant’s negligence. Before the
trial, the claimant was the victim of an armed robbery during which he suffered gunshot wounds to the same
leg, as a result of which the leg had to be amputated. The defendant argued that his liability was limited to
the loss suffered before the robbery, on the ground that all loss suffered thereafter was said to have merged
in and flowed from the robbery.
Question of whether or to what extent the damages which would otherwise have been awarded in respect of
the car accident must be reduced by reason of the occurrence of this second injury.
Appellant argued: loss he suffered not diminished by the second injury, still suffered same kind of loss of
amenities even if now increased. Second injury didn’t curtail life expectancy so suffering for same amount
of time.
Defendant: the limb from which the earlier damages stemmed was no longer there and thus they couldn’t be
liable for any loss following the second injury. “Second injury submerged or obliterated the effect of the first
and that all loss thereafter must be attributed to the second injury”
HL
A man is not compensated for the physical injury- but the loss resulting. Loss not stiff leg, loss is the loss
of ability to enjoy a full life. Second injury didn’t diminish any of these damages.
Consideration of causation: can easily have 2 causes, eg contributory negligence, doesn’t matter which is
first in time.
The robber would not be liable for the damage caused by the respondent, would have to pay for the
additional loss caused by the loss of the limb instead of stiff leg.
“If the 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.”
Appears to be a question of factual causation however in reality is asking how far the liability of the
defendant extends. Causation is not a question, nor is the fact of the liability. Necessary to determine
how liable D was in order to quantify that.
Damage as a concept has been neglected- the issue of what counts as damage doesn’t come up often but
rather there were questions relating to limitations to determine when damage occurred.
There is a difference between forms of harm that are sufficient to establish a cause of action, and those
for which recovery is in fact permitted once the cause of action has been established.
Distress does not ground a negligence claim. However, it is a form of harm which can be the basis
for recovery when attached to a form of harm such as a broken leg. e.g. is harm but recovery is
contingent on another form of harm being established.
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