img020 4

236 NEGLIGENCE: CAUSATION AND CONTRIBUTORY NEGLIGENCE

amount of the loss to be so great.³'* Such an issue is treated as belonging to the realna of assessment of damages rather than of remoteness, so that foreseeability is irrelevant.^,'^<’ The law is not, however, so clearlv corri-mitted to this stand where the loss claimed is not "intrinsic" but arises from the fact that the damage to the claimant's goods renders him unable to earn profits with them."¹ Support can be found in the cases (nonę of thena decisive, at least for the purposes of negligence⁶²) for both views: on the one hand that foreseeability is irrelevant,^b3 on the other, that the defendant's liability is limited to "ordinary" or "foreseeable" losses."⁴

6.27    Extent of the damage. If the accident occurs in a foreseeable way the defendant will be liable even though the damage is much greater in extent that would have been anticipated.”⁵ Where the loss is economic, this is in practical terms indistinguishable from the previous principle.⁶* It has sometimes been said that the "egg-shell skuli” rule (see below) is an example of this,"⁷ though that would involve saying that the law regarded personal injury as indivisible and that damage from cancer triggered by a bum"* was damage of the same kind as the bum.⁶⁹ At any ratę, the principles are obviously closely related.

6.28    The "egg-shell skuli" principle. The Wagon Motani did not displace the principle that the defendant must take his victim⁷⁰ as he finds him.⁷¹ It has for long been the law that if a person is: "negligently run over or

The point is perhaps so obvious that the only express authority for it appears to be the celebratod dictum of Scrutton L.J. in The Aątad (1934] P 189 at 202, though that case had nothing to do with negligence and the judgment was a dissenting one.

But in B.D.C. Ud V. Hofstraud Farms Ud (1986) 26 D.L.R. (4th) 1 the Supreme Court of Canada said, obi ter, that if D were liable in tort for failure to ddiver C's package and had notice that C would suffer some loss, he would not be liable for a loss of extraordinary magnitude, of the risk of which he had no notice. The contract rule is applied even though the action is in tort: what goes for damage does not necessarily apply to economic loss. cf. the Parsons case, n. 26. above.

The case of a claimant who is disablcd from performing particular contracts (e.g. a musician) is perhaps analogous: see The Arjwd, above, at 221, per Greer L.J

The ArjKhl, denying lost profits on the sale of a cargo, was a case* of conversion.

⁶⁰ The Star of India (1876) 1 PD. 466; Ucslwsch Dredger v. S.S. Edison 11933) A.C. 449 at 463-464 ("The measure of damages is the value of the ship to her owner as a going concem at the time and place of the loss. In assessing that value regard must naturally be had to her pending engagements, either profitable or the reeerse*'). This case is, of course, best known on the different point relating to the claimant's impecuniosity, para. 6.29. below.

^,,ł The Argeittino (1899) 14 App. Cas. 519 at 523; The Arjwd, above; The Dans^i (1971J 1 Uoyd's Rep. 60. See further McGregor, Damages (16th ed.), p. 132.

'' Halbeck Hall Hotel Ud v. Scarborough B.C. |2lXX)J Q.B. 836 at 858 (where, however, the court declined to apply the principle because the case was one of a limited duty in face of a natural disaster). One ot the few elear examples of this is Yaairll Engineerittg v. B.D.H. Chemicals (1971) 1 Q B. 88 (minor expU*i<^>n foreseeable; huge ex płosi on took place because claimants put a number of ampoules in the same >ink). See also Bradford v. Robinson Rentals Ud |1%7] 1 W.L.R. 337 (exposure causing frostbite) and Richard* r. Stałe of Victoria (1%91 V.R 136 (blow causing brain damage).

^ See Brown v. K.M.R. Services Ud 119941 4 Ali E R. 385 (a contract case).

The suggestion seems to be madę by Lord Wright in the Uesbosch case, below. at 461 and by Lord Parker C.J. in Smith v. Dwłt Brain & Co. Ud (1962) 2 Q B 405 at 415.

As in Smith p. Leech Bram.

Though this mav be the implication of Page r. Smith 119961 A.C. 155. below and para. 5.46, abo*e Margereson v. J.W. Roberts Ud (1996] P.I.Q.R P154 (on appenl |19%1 P.LQ.R P358).

“ But not his familv McLaren r. B rad Street (1%9) 113 S.j. 471 et. Nader r. Urlnw Transfiort Aulhority (l^M 2 N.S.W.L K 501 and Karanagh v. Mhtar (1998) 45 \ S.W.L.R. 588.

'* Smith r. Leech Brain fr Co. Ud (19621 2 Q.B. 403; Warren v. Scruttons (19621 1 Lloyd's Rep. 497; l.mt^< >• Harland and Wolff (19661 1 Lloyd's Rep. 400; Bt*on v. Thomas Hubback (19671 1 Uovd's Rep. 281; Wiel‘‘^r-‘ p. Cyn! Lord Girjiets Ud |1969| 3 Ali E R UX).

otherwise negligently injured in his body, it is no answer to the sufferer's daim tor damages that he would have suffered less injury... ⁷² if he had pot had an unusually thin skuli or an unusually weak heart."⁷³ This orinciple is as applicable to "nervous shock" as to any other sort of oersonal injurv⁷⁴ and applies where the foreseeable danger is of physical jrauma but the claimant is shocked, because of his susceptible person-ality, into mental illness, even though no physical injury has in fact ocairred.⁷⁵ It has also been applied where the immediate cause of the loss is voluntarv conduct by the claimant to which his personality may have predisposed him but which would not have occurred but for his injury,⁷¹’ but the conduct in question in the case was the commission of a crime and in such a case the claim would now be barred by public policy.⁷⁷ The daimant's weakness cuts both ways, however: his damages are likely to be less than those of a "normal" person suffering the same overall injury in order to reflect the greater risk to which he was exposed by the normal vicissitudes of life.⁷⁸

Since the egg-shell skuli principle seems to be based either on the great difficulty that would arise if the court had to determine in detail what were the foreseeable physical conseąuences of an injury or on the view that all sorts of individuaUy unlikely consequences are foreseeable in a generał way,⁷⁹ the same (or a similar⁸⁰) principle operates when the claimant's injury is exacerbated by a combination of his abnormality and some extemal force which foreseeably and naturally intervenes after the accident, for example medical treatment to which he is allergic.⁸¹

6.29

Claimant's impecuniosity. In Liesbosch Dredger v. Edison S.S⁸² the Edison, by negligent navigation, fouled and sank the dredger Liesbosch,

”Tłu¹ missing words aa' "or no injury al all". Kennedy J. went ton far here, for thea" must be a ba-ach of duty owed to the claimant and if no damage at all could have been foreseen to a person of normal sensiHvitv and the claimanl's abnormal sensitivitv was unknown to the defendant, then he is not liable: Bourfiill v. Young 11943] A.C. 92 at 109; Cook v. Swinfcn |1%7] 1 W.L.R. 457. ^r’ Dulieu v. Whitc [19011 2 K B. 669 at 679, ;vr Kennedy J

⁷⁴Does it apply to property damage? In The Simtid [1998] 2 IJovd's Rep. 97 the unusual ground conditions at the claimants' harbour meant that unexpected delay and expense was incurred in effecting repairs to damage to moorings caused by the defendants’ vessel. The defendants were liable for this and. although he regarded the problem as foreseeable. Pili L.J. said at 100 that the "liability of Łhe defendants is founded on one aspect of the principle that a tortfeasor takes his victim as he finds him *. But notę that in the context of nuisance we tend to sav that a landowner cannoł incTease the liabilities of a neighbour by putting his property to unusually sensitive use: see para. 14.9, below. Tnge v. Smith 11996] A.C. 155, para. 5.46. above; contra Lord Goff dissenting in Fwst v. C.C. South Yorkshire [19991 A.C. 455 at 47t>. It seems that the Austmlian court in Cotnmomtmlth v. Mclcmt (1997) 41 N.S.W.L.R. 386 disagreed but was of the view that where psychiatrie injury supenenes on actual ^physical injury it will generally be accepted that that is foreseeable.

Mm/; v. McCretmier [ 19851 1 All K R 367, though the point is onlv referred to in subsecjuent proceedings: ^ Mm/i _r. McCnumer (No. 2) [1986] 1 All E.R. 943.

^Clutiis v. Camden mul Isliiigton H A. [1998] Q13. 978 Indeed the claim in Menh r. McCreamer (No. 2> was dismissed on this basis.

Apparently known in Canada as the ' crumbling skuli" doctrine: Athey v. hwuiti (1996) 140 D.L.R. (4th) ^235. The damages in Puge v. Smith [19961 A.C. 155 were reduced by some 40' on account of this.

^ See Tlić Siroiuf, above.

h has been said that it is a logical coix>llarv of the egg-shell skuli principle: Steftheiwm r. Waite Tileman _%i LtJ [1973] N.Z.L R. 152.

r. First Office [1974] 1 W.L.R. 1176. As to whether negligent treatment amounts to a liomis iictus Qttervcnunt$. see para. 6.34, below.

119331 A.C. 448 See the obse rvations of Viscount Simonds on this case: The Wagpn MounJ 119611 A.C

388