Topic 2 – Problem Question
Graham, a professional snowboarder, trips on a step in the street and injures his left leg. Shortly
before this Helen, a pedestrian returning from a shopping trip, had accidentally spilled a bottle of
olive oil near the step and made no attempt to clear it up. Also Inge startled Graham immediately
before he fell by running towards him and shouting 'I am going to get you' because she had
confused him with someone else. Graham cannot say whether he tripped because he slipped in
the oil or because Inge's shout distracted him, but he is sure that one of these factors must have
caused his fall.
Graham is taken to the Jellyfield Hospital where Karl, a doctor, negligently fails to diagnose that
his ankle is broken. Because he is unaware that his ankle is broken he attempts to drive to a
snowboarding competition the next day. Whilst driving to the competition he is involved in a road
traffic accident caused by the negligence of Lisa, and his left hip is broken. His broken ankle is then
diagnosed. Experts agree that Graham would have lost earnings as a result of missing one month
of snowboarding events because of his broken ankle, but that he will have to miss events for three
months because of his broken hip. Experts also agree that Graham's ankle will always remain
weak as a result of the break, and that consequently he is likely to earn far less by way of signingon fees from snowboard teams during his career. The delay in diagnosing the ankle injury
substantially reduced the likelihood that this permanent weakness could have been avoided.
Trip on the stairs (Helen (H) and Inge (I))
Generally the courts will use the but-for test in order to determine factual causation between the
negligence of H or I and the damage caused to G. This is given by Barnett v Chelsea and Kensington
Hospital [1969] which states that- but for the actions of the defendant, the claimant would not have
suffered damage, on the balance of probabilities. This problem is made difficult by the fact that
there were 2 potential causes of the damage and therefore the ‘necessary condition’ is not
apparent. However, first consideration must be given to the fact that it is not enough that damage
results from the actions of the defendant, it must result from wrongful aspects of their conduct
(South Australia Asset Management Corp v York Montague Ltd [1997]). Therefore, consideration
must be given to the liability of both H and I. It is necessary to ascertain whether H and I potentially
breached duties of care using the Caparo Industries Plc v Dickman [1990] test - the damage must be
reasonably foreseeable, the two parties must be in proximate relationship and that it is fair just and
reasonable to impose a duty. The damage for both H and I seems to be reasonably foreseeable. For
H the spilling of a slippery substance is a clear indication that you are creating a potential danger.
Moreover, for I, shouting and chasing someone close to steps is also clearly reasonably foreseeable
in causing damage. It seems that in this case it would be fair just and reasonable to impose liability
on both as running and shouting at G and putting him in fear amounts to an assault and so there
would be no policy bar. However, it is questionable whether it would be just for H as she merely
drops some oil. However, the fact she refused to attempt to clean it, and that oil is known to be
particularly slippery suggests it would be reasonable in this instance for her omission to impose
liability. The issue is whether there is a sufficiently proximate relationship between the claimant and
the defendants and thus issues of causation and remoteness need to be considered.
In determining the liability of both H and I it is unclear on the facts who was more likely to have been
the cause. Wilsher v Essex AHA [1988] held that causation cannot be established where none of the
potential causes were more likely to be to blame than the others and therefore there was no
substantial cause. However, as this would mean G could not be compensated it is more likely that he
Topic 2 – Problem Question
can claim damages using the ‘indeterminate defendant’ rules. This is where more than one
defendant acted at the same time and it is unclear which was responsible for the injury. Where
there are multiple possible causes of the damage G does not have to show the breach of duty of the
defendant (either H or I) was the only cause of damage, nor that they were the main cause. Instead
it must be proven that they ‘materially contributed’ to the damage (Bonnington Castings Ltd c
Wardlaw [1956]). This is because the strict but-for test must be modified to compensate G as this is
a case of indeterminate defendant. Therefore, both H and I are potentially liable for the full amount
of loss. Therefore, is clear that they both materially contributed the damage may have been that due
to the oil that he was more likely to slip as the steps were slippery, yet this may alone not have
caused the accident as if he was paying attention he would have kept his balance or seen the oil.
Therefore, by I distracting him he slipped where he otherwise would not have. Or indeed his trip
may not have been caused by either factor but his own clumsiness. Therefore, however, the facts
are taken both H and I materially contributed to the situation that caused the damage.
In terms of remoteness, it could be argued that H in spilling the oil was too remote a cause to mean
she is liable as the damage ‘must have been something very likely to happen if it is not to be regarded
as novus actus interveniens breaking the chain of causation. I do not think that a mere foreseeable
possibility is or should be sufficient’ (Dorset Yacht Co v Home Office [1970]). However, it could be
argued that it was her duty to clear up the oil as it was clearly foreseeably likely that someone would
slip on it, as such it seems this cause would not be too remote. There is no question of remoteness
for H as it clearly foreseeable that the kind of damage caused would occur if you approach someone
in the way H did.
Therefore, it seems most likely that as it cannot be proven using the but-for test that either party
was solely to blame, it is clear on that both parties materially contributed to the damage and so will
be jointly liable for the broken ankle. However, it may be possible for H to argue that her
contribution was remote and thus she will either not be liable or she may have to pay a smaller
percentage of the damages than I.
Loss of chance (Karl (k))
When considering the role of the doctor, it is clear he has breached a duty of care in misdiagnosing
his broken ankle. The doctor patient relationship is an established duty of care and this was
breached as he failed in his duty to correctly diagnose as his actions fall below the objective standard
of care of a professional (Nettleship v Weston [1971]).
Furthermore, the doctor may be liable for loss of chance in that if G had been correctly diagnosed
then his permanent weakness could have been avoided. ‘If losing less than 50% chance of recovery is
recognised as a form of legal damage in its own rights, the claimant can recover compensation for
this loss of chance’. Whether the doctor is liable for the loss of recovery would depend on the
probability that G would have recovered if he had been diagnosed correctly initially. Hotson v East
Berkshire AHA [1987] seems to suggest that loss of chance of physical recovery is not a type of
recovery that it available, unless it is clear on the balance of probabilities that had the breach not
occurred G would have recovered. This is not clear on the facts of this case as ‘substantially’
lowering chances may not meet the 51% required to provide damages (Gregg v Scott [2005]).
Without knowing that on the balance of probabilities a correct diagnosis would have meant a full
recovery, the doctor will not be liable for loss of chance as this case does not fall into the policy
exception of Chester v Afshar [2005] and therefore the original defendants would remain liable for
the injury.
Topic 2 – Problem Question
Whilst G may not get loss of chance of recovery he could potentially receive damages for future loss
due to his injuries. The fact that experts agreed that he would lose future earning potential due to
his injuries is significant in his expected damages. Doyle v Wallace [1998] allowed for damages if the
claimant would have embarked on a new and financially rewarding career. Based on this it seems
that G would be entitled to damages for a rewarding career within the months that he misses due to
his misdiagnosed ankle meaning he could not earn the same sign-on fees. However, it seems this
would be inconsistent if it were found to be against policy to allow him to recover for loss of chance
of physical injury, as it is because of the lack of chance of physical injury that he would lose the
signing money. Moreover, as the facts are not clear whether on the balance of probabilities that his
ankle would not be permanently weak, even if correctly diagnosed, it seems the doctor would not be
liable for the loss of income either.
Road traffic accident (K and Lisa(L))
In determining G’s claim in relation to the road traffic accident it is first necessary to determine the
liability of K. It seems that G has relied on the incorrect diagnosis of K to go to the snowboarding
competition. He is then in an a collision with L. There could be argument that but-for the incorrect
diagnosis of K, G would not have been driving to the event and therefore not suffered from the
second tort that can be seen from following the but-for test in Barnett. However, this bring issues of
remoteness. In order to hold K liable he must have reasonably foreseen an injury of that type
occurring form his negligence (The Wagon Mound [1961]). Clearly it is unreasonable for K to foresee
that an incorrect diagnosis would lead to G being involved in a road traffic accident. However, it
could be argued that K would know that G was a professional snowboarder and therefore likely to go
to these events, but this seems irrelevant to the existence of the subsequent tort. Therefore, as this
was not a ‘direct’ result of K’s negligence he will not be liable for damages based on loss of earnings
due to the broken hip or indeed the broken ankle.
L is clearly negligent in causing the accident and therefore there is no question of causation or
remoteness for the damage she caused in breaking his hip.
Damages (L, K, H and I)
It seems that when determining who G can claim from for loss of earnings it depends whether the
second cause is an overtaking one. Clearly the second injury (the car accident) was tortious and
therefore Baker v Willoughby [1970] will apply. Jobling v Associated Diaries [1982] will be
distinguished as the second injury in that case was due to nature and not a tort. As this case allowed
for loss of earnings due to lack of mobility it seems that H and I will be liable for the loss of 1 month’s
events. Whether they are liable for loss of possible future earnings due to the weakness of the ankle
is questionable. It could be argued that if he had been diagnosed properly his ankle would not have
been permanently damaged and therefore it would be unfair to make H and L liable for loss of future
earnings from the weakness of the ankle. It could be argued that the second tort by K ‘obliterated’
the first tort and thus H and I should only be liable for 1 months pay. But, Barker shows this is not
the case and H and I remain liable for both the month’s pay and future earnings due to the broken
ankle despite an intervening tort by K and by L. As K is not liable for damages as the ankle may well
have been permanently damaged even if he was diagnosed earlier G still would not have fully
recovered from the weak ankle and so leaves H and I liable for the full extent of the ankle injury due
to the egg-shell skull rule (Smith v Leech Brain & Co [1962].
L could argue that she should not have to pay for 3 months damages that result from a broken hip,
and instead I and H should be liable for part of the damages she caused as the broken ankle that G
Topic 2 – Problem Question
got as a result of the tort by H and I that he was less likely to be able to control his car properly.
Thus, he may have been able to avoid the collision with L (similar to the lack of mobility caused in
Baker). However, the facts are unclear on this. It seems instead that L will be liable for the 3 months
of pay that G has lost due to the broken hip. L could argue based on Performance Card Ltd v
Abraham [1961] that she should not have to pay for the first month of pay due to the existing
damage meaning he would have had to take the first month off anyway. Therefore, she need only
pay for the additional damage, which would be 2 months.
Conclusion
Overall, it seems K is not liable for damage caused by lack of initial diagnosis. H and I can be seen to
jointly be liable for the broken ankle and loss of future earnings due to the broken ankle and so must
both pay the months pay and the loss of potential earning due to ankle weakness. Lastly, L is liable
for the broken hip and so must pay the additional damage of 2 moths pay.