©The Star (Used by permission)
Articles of law by BHAG SINGH
One loss may lead to another. To what extent can the person who caused the initial loss be held responsible?
RECENTLY I wrote on the subject of foreseeability in the context of holding a person liable for a legally recognised wrong that he has committed. Liability to pay compensation usually arises where damage is caused. However, there is more to the word “damage”.
This is because when one talks about damages, it may not be one fixed loss in terms of the consequences of the contractual breach or negligent act. One loss may lead to another, and perhaps yet another. The question that arises is: To what extent is the person responsible for the initial wrongdoing or impact, to be held responsible?
This aspect or foreseeability is relevant at two stages: Whether the initial consequences could have been foreseen and whether all the consequential damage would have been foreseen. This is the rule enunciated in the case referred to as The Wagon Mound as follows:
“As regards damage in consequences of a breach of a duty to take care, the fundamental rule is that the injury suffered by the plaintiff must not be too remote a consequence of the defendants’ conduct, or as it is often said, the damage must not be too remote”.
How remoteness can defeat a claim is illustrated in the case of Sivakumaran & Ors vs Yu Pan & Anor in which the widow of the deceased with other members of the family sued the defendants for damages for the death of her husband, which she believes was triggered by the accident.
The report made by the deceased showed that on June 26, 1990, at about 7.30pm as he approached a junction between the main road and a lane on his right, a lorry came out from the lane and turned towards Kuala Lumpur. The deceased tried to brake his motorcycle but he knocked into the lorry and suffered injuries as a result. The court accepted this version of the event.
In the motor accident, the deceased suffered a broken jaw. He also broke his right femur and suffered cerebral concussion. He had oral surgery done to his jaw. According to the plaintiff, who is the widow, her husband had to use crutches after the accident.
The plaintiff told the court that her husband was badly affected by the accident. It was difficult for him to talk and for others to understand him. He could not work and they became very poor. She started to work and he was disturbed that he had to depend on her and the family for all his needs. She pawned her thali (the symbol of marriage) to get some money to send him to hospital and he was broken–hearted over that. Nine months later, he committed suicide.
At the trial, however, the plaintiff said her husband was healthy before the motor accident. No evidence was adduced to show that he suffered from a latent physical or psychological predisposition to a particular injury or illness before the accident.
The plaintiff’s evidence was that she did not expect her husband to commit suicide. On these facts, the plaintiff failed to recover damages on account of the suicide.
This was because the court held that there was no evidence to that effect. His suicide was not a normal reaction to the accident.
However, it is not always the case that such further loss which may on the face of it appear to be too remote, will not be recoverable. This is because the principle of law that is adopted is that a tortfeasor takes his victim as he finds him.
This principle is reflected in the judgment of Kennedy J in Dulieu vs White & Sons in which his lordship said: “If a man is negligently run over or otherwise negligently injured on his body, it is no answer to the sufferer’s claim for damages that he would have suffered less injury or no injury at all, if he had not had an unusually thin skull or an unusually weak heart”.
In the case referred to, the plaintiff’s husband was burned on the lip by a piece of molten metal. The burn was treated and it healed but later he died of cancer and it was found that the burn promoted cancer in tissues which already had a pre–malignant condition. The defendants were held liable.
Since the type of injury which the deceased suffered was reasonably foreseeable, the defendants were liable for the damages claimed, although they could not reasonably have foreseen the ultimate consequences of the injury, viz, that the burn would cause cancer for which the man would die.
In Robinson vs Post Office, the plaintiff was injured as a result of the defendants’ negligence. When he sought medical treatment, he suffered a serious allergic reaction to an anti–tetanus injection given to him by a doctor. The court held the defendants liable for this injury, stating that a person who could reasonably foresee that the victim of his negligence may require medical treatment is liable for the consequences of the treatment “although” he could not reasonably foresee these consequences or that they could be serious.
In the Canadian case of Cotic vs Gray, the plaintiff’s husband suffered serious injuries when the car he was driving collided with another car, whose driver was killed. The plaintiff’s husband was earlier subject to emotional upsets and fits of depression.
Following the accident, his condition degenerated from neurotic to psychotic, and 16 months later he committed suicide. The plaintiff successfully brought an action for damages for wrongful death against the estate of the other driver.
Thus there is no clear–cut law to say that damage will not be payable if the damage arises out of a different occurrence after a lapse of time. In Swami vs Lo, following a suicide allegedly as a result of injuries suffered in a motor vehicle accident, Lacouciere JA summarised the different views as follows:
“Defendant argued that foreseeability of some physical injury resulting in death as a result of the defendant’s negligent driving is insufficient, because death by suicide is damage of a different character which the reasonable person in the position of the defendant would not have foreseen. However, the remoteness–foreseeability argument is interwoven with two other principles which must be considered: The “egg shell” or “thin skull” doctrine because of the deceased’s vulnerability by reason of his history of mental illness; and the novus actus interveniens defence or alleged break in the chain of causation by the deceased’s suicide.”
Thus it will be seen that in the Malaysian case, the judge, though disallowing the claim, was acting in accordance with the settled principles established in the cases discussed.