3. General Negligence: CAUSATION

Question 1

CAUSATION

Answer 1

D’s breach of duty must CAUSE the harm suffered by C both:
- Legally (LEGAL CAUSATION): must be no break in the connection between the breach and the loss.

• Factually (FACTUAL CAUSATION): breach must be physically connected with the loss.

Whether the breach caused the loss is judged by the ORDINARY MAN, not a specialist (Yorkshire Dale Steamship v Minister of War Transport).

Question 2

C: FACTUAL CAUSATION

Answer 2

There are three tests for factual causation:

• ‘BUT FOR’ TEST
• MATERIAL CONTRIBUTION
• BALANCE OF PROBABILITIES

The basic ‘But For’ Test should be applied first and Mat Contrib/Balance of Prob should only be considered if the ‘but for’ test does NOT produce a clear result.

Question 3

C: Factual Causation - ‘BUT FOR’ TEST

Answer 3

The ‘But For’ Test (Cork v Kirby Maclean)

• TEST: ‘but for’ D’s breach of duty, would C have sustained the damage/loss?
• If NO, D will be liable.

This is the basic test which is ALWAYS the starting point for causation. Only if no clear result can be reached should the other tests be considered.

Question 4

C: Factual Causation - MATERIAL CONTRIBUTION

Answer 4

est. in (Bonnington Castings v Wardlaw; McGhee v National Coal Board).
- TEST: did D’s breach MATERIALLY contribute to C’s harm (Bonnington) or risk of harm (McGhee).
- if YES, D liable for ENTIRETY of loss, regardless of whether there were other contributory factors.
- – EG: a teacher’s selection of an over-age boy to play for a rugby team material contributed to the harm caused to another player (Mountford v Newlands School).

Question 5

C: Factual Causation - BALANCE OF PROBABILITIES

Answer 5

est. in (Wilsher v Essex).
- General TEST: was D’s breach MORE LIKELY THAN NOT to have caused the loss than the non-tortious factors.
- where multiple possible causes are ALL TORTIOUS, apportionment will be used (Fitzgerald v Lane and Patel).
- is an ALL OR NOTHING approach, D’s breach will either be wholly responsible or not at all.

Four different situations, each with their own TESTS.

1. SINGLE INDEPENDENT CAUSE
   Def: X COULD have caused the loss.
   TEST: ‘But for’ test
2. MULTIPLE CONCURRENT CAUSES
   - Multiple INDEPENDENT causes
   - – Def: x OR y … caused the loss
   - – TEST: balance of prob (>50% chance)
   - – Apportionment is used (Fitzgerald v Lane and Patel)
   - —- EG: (Kay v Arran and Ayrshire HA; Gregg v Scott)

• Multiple CUMULATIVE causes
• – Def: x AND y caused the loss. Effects of the causes may be immediate (Fitzgerald) or subsequent (Fairchild v Glenhaven Funeral Services; Sienkiewicz v Greif)
• TEST: Material Contribution
• – EG: (Bailey v Ministry of Defence; Mountford v Newlands School)

3. MULTIPLE CONSECUTIVE CAUSES
   - Def: X causes damage, Y then causes same damage or worsens X’s damage.
   - TWO possible scenarios here:
   - – Tort followed by a tort: original D liable for THEIR damage, subsequent D liable for their ADDITIONAL damage (Baker v Willoughby; Performance Cars v Abraham)
   - – Tort followed by a natural event: D not required to compensate C for damage caused by the natural event, provided that it is UNCONNECTED with their original tort (Jobling v Associated Dairies ; Murell v Healy)

Question 6

C: LEGAL CAUSATION

Answer 6

D liable in LAW unless the chain of causation is broken by a NAI. These can be any of the following:

1. ACT OF A 3rd PARTY
   Will ONLY break chain if UNFORESEEABLE (Knightley v Johns; Rouse v Squires) AND UNWARRANTABLE (The Oropesa)
   - Chain more likely to be broken if actions are intentional or reckless (Lamb v Camden)
   - Instinctual acts will not break chain (Scott v Shepherd)
   - Where relationship of control exists, D may be liable for actions of persons under their control (Home Office v Dorset Yacht ; Hill v Chief Constable of West Yorkshire)
   - Medical treatment will not break chain UNLESS manifestly unR or palpably wrong (Robinson v The Post Office).
2. ACT OF CLAIMANT
   Act of C will only break chain if UNFORESEEABLE AND UNREASONABLE (Spencer and Wincanton Holdings; McKee v Holland; Wieland v Cyril Carpets).
   - C must suffer a further injury that whilst it wouldn’t have happened for the initial injury, it has in substance been brought about by the C, NOT the tortfeasor.
   - C’s actions will not break chain where C is owed a duty of care to be prevented from taking such actions (Reeves v MPC; Kirkham v CC of Greater Manchester), providing that the duty of care is to specifically prevent the actions taken by C (Corr v IBC)
   - EGs: (McFarlane v Tayside HA; Emeh v Kensington and Chelsea HA)
3. ACT OF GOD/NATURAL EVENT
   Will ONLY break chain if UNFORESEEABLE (Humber Oil) and WHOLLY INDEPENDENT of D’s breach (Meah v McCreamer)
   - EGs: Disease (Jobling v Associated Dairies), Lightning, Earthquakes etc.