2B.2.4 Causation in negligence

Question 1

Negligence flow chart

Answer 1

Duty
Breach
Causation
Damages

Question 2

Factual causation

Answer 2

But for test (Pagett)

Question 3

But for test (Pagett)

Answer 3

“If the damage would not have happened, but for a particular fault, then that fault is the cause of the damage; if it would have happened just the same, fault or no fault, the fault is not the cause of the damage.”

Question 4

Cases for factual causation

Answer 4

Pagett - But for test
Barnet v Chelsea
Wilshire v Essex AHA- More than 1 cause

Question 5

Barnet v Chelsea

Answer 5

A doctor refused to examine the claimant. The claimant died as a result of arsenic poisoning. C would not have recovered, even if the doctor had treated him. The doctor owed a duty of care at the standard of the reasonable doctor. This was breached, but the doctor did not cause the damage as the patient would have died either way.

Question 6

Wilshire v Essex AHA (1988)

Answer 6

5 potential causes of blindness in a baby, one was the doctor’s negligence. No causation was proven.

Question 7

Novus actus interveniens

Answer 7

A break in the claim of causation / an intervening act.

Question 8

Remoteness

Answer 8

• D may have caused damage but it is too remote.
• This damage must be reasonably foreseeable.

Question 9

Case for remoteness

Answer 9

The Wagon Mound (1961)

Question 10

The Wagon Mound (1961)

Answer 10

The Wagon Mound (a ship) was re-fuelling another ship, and negligently spilled oil into the water. A ship was destroyed by fire, which spread, causing damage to the harbour.

Held: the damage to the ship was reasonably foreseeable but the damage to the harbour was not reasonably foreseeable as it was too remote.

Question 11

Cases for foreseeable harm

Answer 11

• Hughes v Lord Advocate (1963)
• Bradford v Robinson Rentals (1967)
• Doughty v Turner Manufacturing (1964)

Question 12

Hughes v Lord Advocate (1963)

Answer 12

Paraffin lamp in manhole. Child went into the manhole and knocked over the lamp, causing an explosion and injury. It was held the harm was foreseeable.

Question 13

Bradford v Robinson Rentals (1967)

Answer 13

C was instructed by his employer to undertake a long journey in a van. The travel advice at the time was not to travel unless entirely necessary due to the adverse weather conditions. Neither of the vans had a heater and as a result, the claimant suffered frostbite. Held: Foreseeable harm.
Legal principle:
- The injury suffered by the claimant was a reasonably foreseeable consequence of the D’s breach of duty.

Question 14

Doughty v Turner Manufacturing (1964)

Answer 14

An employee accidentally knocked a container cover, which resulted in some asbestos cement falling into a nearby vat of molten liquid. The exposure of the asbestos to the high temperatures resulted in a sizeable chemical explosion, which injured the claimant.

Held: The chemical reaction was not known at the time and therefore not foreseeable.

Question 15

Damage

Answer 15

Legal test of a loss to the claimant from a breach of duty.

Question 16

Damages

Answer 16

Compensation payable to the claimant who proves that the defendant is negligent.

Question 17

Legal causation

Answer 17

Egg shell skull rule

More than a slight or trifling link (Kimsey)

Question 18

Egg shell skull rule

Answer 18

“Take your victim as you find him”

If the type of injury is reasonably foreseeable, BUT it is much more serious because the claimant has a pre-existing condition, then the defendant is liable for all of the subsequent consequences.

Question 19

Case establishing egg shell skull rule

Answer 19

Smith v Leech Brain & Co

Question 20

Smith v Leech Brain & Co

Answer 20

C had an existing pre-cancerous condition. C was burnt on the lip by molten metal in a factory, due to the D’s negligence. The burn eventually brought about full cancer, leading to the claimant’s death. The claimant’s widow claimed against the defendant.
Held: The defendant was liable because the burn was reasonably foreseeable because of the egg shell skull rule.

Question 21

Difference between Thin Skull rule and Egg Shell Skull Rule

Answer 21

Thin skull rule = CRIMINAL - Blaue (1975)

Egg shell skull rule = CIVIL - Smith v Leech Brain & Co

Question 22

Res ipsa loquitor

Answer 22

“The thing speaks for itself”.

This only applies where it is difficult to know exactly what happened, even though it looks obvious that the defendant must have been negligence.

Question 23

What must the claimant show for res ipsa liquitor?

Answer 23

The claimant must show:
1) The defendant was in control of the situation which caused the injury.
2) The accident would not have happened unless someone was negligent.
3) There is no other explanation for the injury.

Question 24

Jordan (1956)

Answer 24

D stabbed V. Wound healed but the victim died from an allergy to drugs given at the hospital. D and hospital are the factual cause. D is not guilty as the hospital failed to take note of the allergy (legal cause).
Held – it was the doctors who caused the damage (intervening act, breaking the chain.)

Question 25

Case showing factual and legal causation

Answer 25

Jordan (1956)