Derby accident claim solicitors

McIntosh Fleming Lawyers, specialise in no win, no fee accident claims, and we guarantee that you keep all of your compensation without any deduction for our charges. Get in touch with Derby accident claims solicitors by e-mailing gary.dickie@btinternet.com , or ring us on 01332 518135 .

Foreseeability

To foresee possible harm to persons such as the claimant is insufficient; the defendant must, in principle, reasonably foresee harm of the kind which in fact ensues.

A claimant can recover for all injuries caused by the negligence so long as some injury to such a class of person was foreseeable, no matter how serious the extent of the injury, even if unforeseeable: see, for example, Smith v Leech Brain & Co Ltd  (defendants liable for unforeseeable cancer following a foreseeable burn on a worker’s lip caused by splash of molten metal).

Since the decision in Page v Smith the courts do not distinguish between physical and psychiatric injury. If physical injury is foreseeable to the claimant then the defendant is liable for any psychiatric damage which the claimant sustained as a result of the defendant’s negligence, even though physical injury did not in the event occur and the psychiatric damage was itself unforeseeable.

The decision in Smith v Leech Brain & Co Ltd upheld the so-called ‘eggshell skull’ principle, that if the claimant is unusually susceptible the defendant remains liable for the full extent of injury since ‘the tortfeasor takes his victim as he finds him’:  The Wagon Mound (No 1). By the same token, in cases of nervous shock (or ‘recognisable psychiatric injury’,  if some physical injury to a primary victim is foreseeable, he or she can recover for psychiatric injury whose extent is unforeseeable: Page v Smith  (physically unhurt victim of a road accident could recover for recognisable psychiatric injury).

In practice the courts will rarely regard injuries as differing in kind. Lord Denning in Stewart v West African Terminals Ltd  spoke of the consequence being within the ‘general range which any person might foresee (and not of an entirely different kind which no-one would anticipate)’. The consequences of a physical injury are almost never viewed as different in kind, exemplified by Smith v Leech Brain, above. Thus, employers were liable for encephalitis following a minor wound in Robinson v Post Office; for pneumonia and death which followed a leg injury in Oman v Mclntyre ; and for frostbite caused by being in a van without a heater in Bradford v Robinson Rentals Ltd .

Nor can a defendant claim that it could not have foreseen the precise manner in which the injury was inflicted (subject to proof of causation): Wiszniewski v Central Manchester Health Authority ; Jolley v Sutton London Borough Council . In Hughes v Lord Advocate  a manhole cover was left unattended but surrounded by paraffin warning lamps. A child playing with a lamp fell into the manhole, causing an explosion which injured the claimant. It was enough that the defendants could contemplate that children might play with the lamp and cause burning injuries; the precise, and unusual, circumstances causing the explosion need not have been reasonably foreseeable (nor the extent of the injuries).

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