Acts of The Claimant - The Principles

The Principles

In the normal course of events, the defendant is liable if they owed a duty of care, breached that duty and either caused loss or damage to the claimant or exposed the claimant to the risk of loss or damage. But a negligent defendant will not be liable for any loss or damage subsequently sustained by the claimant, if the claimant acted unreasonably in responding to the situation. This is a matter for the courts to weigh on the facts of each case.

In McKew v Holland & Hannen & Cubitts (Scotland) Ltd. (1969) 3 AER 1621, the defendant's negligence caused an injury to the claimant's leg that significantly weakened it. When later attempting to descend a steep staircase without a handrail or assistance, the claimant broke the ankle in the same leg. Lord Reid said that once a person is injured and that injury produces a loss of mobility, they must act reasonably and carefully.

It is, of course, possible that the disability may produce a situation in which further injury is caused. In such a case, the second injury fits into the chain of causation, the one following naturally from the other. But if the injured person acts unreasonably, this behaviour is novus actus interveniens (Latin for "some new act breaking in"). The chain of causation is considered broken and the new injuries will be regarded as caused by the claimant's own conduct and not by the defendant's fault or the disability caused by that first negligence.

So in the particular case, the claimant knew that his left leg might give way suddenly. He could see that these stairs were steep and that there was no handrail. If he had given the matter a moment's thought, he would have realised that he could only safely descend if he went extremely slowly and carefully so that he could sit down if his leg gave way. Alternatively, he should have waited for assistance. But recklessly he chose to descend and, when he fell, he could not stop himself. That was taking an unreasonable risk and, therefore, his behaviour broke the chain of causation.

But where the claimant’s response is not sufficiently unreasonable, the chain of causation will be unbroken and the defendant will remain liable. In Wieland v Cyril Lord Carpets (1969) 3 AER 1006 the defendant's negligence caused an injury to the claimant's neck that necessitated the wearing of a surgical collar. The claimant also wore bifocals and the collar inhibited the normal compensatory movement of her head to maintain perfect vision. She fell down some steps sustaining further injury. It was held that her difficulties in seeing with her usual spectacles were within the risk created by the original negligence.

Unlike McKew, Mrs. Wieland was not behaving unreasonably in descending the steps and so the chain of causation was not broken. Eveleigh J. said that "...one injury may affect a person's ability to cope with the vicissitudes of life" but all that arises reasonably in the ordinary course of events will not break the chain.

Similarly, where the defendant creates a dangerous situation that requires the claimant to take immediate evasive action, the defendant remains liable even if, at the critical moment, the claimant makes the wrong decision and suffers damage that could have been avoided.