Professional negligence lawyer, Emma Slade takes a look at causation, remoteness and the measure of loss in professional negligence claims.
In order to bring a claim for any sort of negligence (whether it be professional negligence or otherwise) you need to establish four things: that the Defendant owed you a duty of care, he breached it, you suffered a loss and the loss was caused by the breach of duty (‘causation’). The first two items – especially in professional negligence claims – are usually easily proved; it is the last two elements that are so often hotly contested.
Usually, a professional negligence claimant will have a pretty good idea of what losses he has suffered as a result of a negligent act, but sometimes the consequences of a wrongdoer’s act goes far beyond what he could have reasonably anticipated or foreseen. Take a situation where the owner of a ship negligently pours oil into a harbour. The oil slick flows across the harbour to a pier where sparks from welding machinery light the oil which sets fire to the pier. Should the pier owner be able to claim damages from the ship owner? The Court said that he couldn’t. Although it was reasonably foreseeable that the wharf would be damaged by the oil fouling it, damage by fire was not foreseeable – it was just too remote .
The Courts have clearly established since then that there needs to be a real and substantial risk of damage: “one which would occur to the mind of a reasonable man… and which he would not brush aside as far-fetched” . The Court will, in effect, create a hypothetical man who would look at the situation at the time of the negligence to see whether they could reasonably foresee the consequences.
The remoteness test does overlap quite considerably with the issue of causation. There must be real and substantial evidence that the act actually caused the damage. So, where a body is found on a railway crossing having been run over by a train, it does not necessarily mean that the railway company have been negligent. The Court would need details as to how the man got onto the line. The mere fact of his death does not mean that the railway company was responsible . Similarly, where there was no explanation as to how a ladder broke causing a claimant to fall and injure himself, the Court was not bound to infer that there was a defect in the ladder to make the claimant’s employers liable
It is not always easy to establish causation. So much so, the Courts have devised a number of tests to assist them in determining whether a breach of duty has caused damage. The most popular test is called the “but for test”: all the Claimant needs to prove is that “but for” the Defendant’s act of negligence, the injury or damage that the Claimant complains of would not have arisen.
1. Overseas Tankship (UK) Ltd –v- Morts Dock & Engineering Co Ltd (The Wagon Mound (No.1)) 1961
2. The Wagon Mound (No. 2) 1967
3. Wakelin –v- London & South Western Railway 1886
4. Alderson –v- Piggott & Whitfield Ltd 1996
Another argument that a Defendant will use to try and defeat or reduce a claim for damages is that the Claimant has failed to mitigate his loss. There is a general duty on a Claimant to try and reduce, minimise or avoid loss. If damages could have been easily avoided but the Claimant fails to take that action, he will be considered to have failed to have acted reasonably and will not be able to claim the damages which could have been avoided. So if, for example, a Claimant fails to repair a defective chimney which his surveyor failed to notice and the chimney subsequently collapses, crashing through the roof and causing severe damage to other parts of the property, the Claimant will not be entitled to claim for the repairs to the roof and the house – only the chimney.
There is a slightly different approach though to calculating damages in surveyors professional negligence claims. Taking the above example of the defective chimney, the Courts are prepared to consider two alternative measures of damages: the Claimant can claim either the cost of repairing the chimney or, what is known as ‘diminution in value’. Diminution in value is essentially the reduction in the value of the house as a result of the defect. Invariably, diminution is roughly equal to the cost of repairs but sometimes, it is not. In those circumstances, the Court will only allow the lower of the two figures.
Emma Slade is a solicitor specialising in professional negligence. Emma offers free initial advice on any prospective professional negligence claim. Telephone or email Emma for a Free cases assessment.