3 - Negligence: Causation

Question 1

What are the three grounds which must be considered to show causation?

Answer 1

Once breach is established, the claimant must prove that the breach caused their loss. In order to prove this link between breach and loss, both factual and legal causation need to be considered.

1. Factual causation deals with establishing the factual link between the breach and the loss.
2. Legal causation involves considering whether there are any grounds upon which the link should be regarded as having been broken.
3. Remoteness: Even if the defendant’s negligence was the cause of the claimant’s harm, was the damage too remote?

Question 2

What is the first question to ask when determining causation of damage in negligence cases?

Answer 2

The first question that needs to be asked is:

“As a matter of fact, was the defendant’s negligence a cause of the claimant’s damage?”

This test is explored further through the ‘but for’ test.

Question 3

What is the ‘but for’ test in causation and what happens if it succeeds or fails?

Answer 3

The test applied by the court to determine causation is known as the ‘but for’ test, which asks:

• “But for the defendant’s breach of duty, would the harm to the claimant have occurred?”
• If the answer to the question is yes – meaning the harm would still have occurred in any event – then the claimant has failed to establish causation, and his claim must necessarily fail.
• If the answer is no – meaning the harm would not have occurred but for the defendant’s negligence – then causation is satisfied, and the claimant can proceed with his claim.

Question 4

How does the ‘but for’ test establish the requirement for causation in negligence?

Answer 4

The ‘but for’ test establishes that:

• If the defendant’s actions do not cause the damage suffered by the claimant, the defendant should not be held liable for that damage.
• In order to satisfy the ‘but for’ test, the claimant must prove that there is a greater than 50 cent chance that the breach caused their loss.
• This requirement creates a clear link or ‘chain of causation’ between the defendant’s breach and the loss or damage.

Example - Hotson v East Berkshire Area Health Authority, the claimant failed to satisfy the causation test as there was only a 25% chance that the defendant’s breach caused his disability, falling short of the required balance of probabilities.

Question 5

What is the standard of proof required for causation in civil negligence?

Answer 5

In civil cases, the standard of proof is on a balance of probabilities, meaning:

• The claimant must show that it is “more likely than not” that the harm suffered was caused by the defendant.

Example - Wilsher v Essex Area Health Authority, the claimant could not establish causation due to several potential causes of his blindness, and thus the claim failed.

Question 6

How does the balance of probabilities apply when multiple possible causes of an injury exist?

Answer 6

In cases where there are multiple potential causes, the claimant must:
- Prove that the defendant’s breach of duty caused the harm on the balance of probabilities.

In Wilsher, the claimant failed to prove that the defendant’s negligence was the cause of his blindness because there were multiple possible causes of harm, only one of which was due to the defendant’s breach.

Question 7

Does factual causation arise in clinical negligence where breach is a failure to advise on the risks of a procedure?

Answer 7

• Where the breach is a failure to advise on risk, the ‘but for’ test is satisfied if the claimant can prove on the balance of probabilities that if they had been warned of the risk, they would not have had the procedure or deferred it to a later date.

Question 8

What is the material contribution approach to causation?

Answer 8

The material contribution approach allows a claimant to establish causation by showing that:

• The defendant’s breach of duty materially contributed to the claimant’s harm, even if it was not the sole cause.
• If the defendant’s breach could be proved to have materially contributed to the claimant developing the disease, then the defendant would be liable for all the loss. By material contribution, the court meant a ‘more than negligible’ contribution to the loss.
• Example - Bonnington Castings Ltd v Wardlaw, where the claimant successfully showed that the defendant’s breach created ‘guilty dust’ that materially contributed to his pneumoconiosis.

Question 9

How does the principle of causation apply when a claimant suffers more than one injury?

Answer 9

When a claimant suffers multiple injuries, the principle of causation dictates that:
- The claimant must prove the defendant’s actions caused or worsened the injury.
- Where a claimant (or his property) has already suffered damage, a later defendant who causes a subsequent injury should be liable only to the extent that he makes the claimant’s damage worse.

Question 10

What principle applies to divisible injuries in negligence cases regarding proportionate damages?

Answer 10

• When a claimant suffers a divisible injury from exposure to a harmful substance over time, damages can be apportioned according to the contribution of each responsible party.
• This principle is significant for both claimants and defendants: it determines how much each defendant must pay and means claimants must sue all liable parties to recover full damages.

However, most injuries are indivisible, which affects how claims are pursued

Question 11

How do indivisible injuries impact liability and damages in negligence cases?

Answer 11

Indivisible injuries mean that when multiple parties contribute to a single injury, each is fully responsible to the claimant.
- For example, if Jack suffers a broken leg due to the negligence of two drivers, both drivers are liable for the entire injury even though they both contributed to it.
- This allows the claimant to recover full damages from either defendant, simplifying the recovery process.
- However, the claimant cannot recover more than once for the same injury.
- The court will then determine how to apportion damages between the defendants themselves based on their respective levels of responsibility.

Question 12

What provisions are made for splitting up contribution between multiple tortfeasors (defendants) under the Civil Liability (Contribution) Act 1978?

Answer 12

The Civil Liability (Contribution) Act 1978 allows the court to apportion damage between two or more defendants who are responsible for the same injury.
- Damages are allocated according to each defendant’s share of responsibility for the harm.
- It’s crucial to note that this apportionment only affects the defendants and does not alter the total damages awarded to the claimant.

Question 13

How does the concept of causation differ in divisible and indivisible injury cases?

Answer 13

In divisible injury cases, damages can be divided according to each party’s contribution, whereas in indivisible injury cases, each defendant is fully liable for the whole amount.
- In Holtby, the court could apportion liability because the injury was cumulative and could be divided.
- However, in a situation where two or more defendants are liable for the same indivisible injury, each is responsible for the claimant’s full loss.
- This means the claimant can pursue any or all defendants to recover the total damages without worrying about the insolvency of any particular defendant.

Question 14

What happens if there is a tort followed by a natural event?

Answer 14

If the second event is naturally occuring, the defendant is liable for the damage only up to the natural event.

Question 15

What is meant by breaking the chain of causation in tort law, particularly regarding intervening acts (legal causation)?

Answer 15

Breaking the chain of causation occurs when an intervening act disrupts the link between a defendant’s negligent act and the claimant’s harm. A new intervening act (novus actus interveniens)

Question 16

What are acts of god and when do they break the chain of causation?

Answer 16

An act of God breaks the chain of causation if it is some exceptional natural event. Natural events can include, for example, being struck by lightning, drowning in a flood, or the onset of disease.

Natural events will not break the chain of causation if they could have been foreseen and the defendant should have taken them into account as events that were likely to happen.

Question 17

How do instinctive interventions of third parties affect the chain of causation?

Answer 17

• The instinctive interventions of a third party do not break the chain of causation.
• Example: Scott v Shepherd (1773), the defendant threw a lighted firework into a crowd, leading to third parties instinctively throwing it away. The court held that these instinctive reactions did not break the chain of causation, and the defendant remained liable.

Question 18

When does a negligent intervention by a third party break the chain of causation?

Answer 18

A negligent action of a third party will likely not break the chain of causation if the defendant ought to have foreseen it as a likely consequence of their negligence.

Example - Knightley v Johns (1982), a police inspector’s unforeseen order for the claimant to drive against traffic broke the chain, making the defendant not liable.

Question 19

How does the recklessness or intentionality of a third party’s actions influence the chain of causation?

Answer 19

If a third party’s conduct is reckless or intentional, it is more likely to be treated as a novus actus interveniens, breaking the chain of causation.

Example: Lamb v Camden London Borough Council (1981), the court held the defendants were not liable for damages caused by squatters.

Question 20

In what circumstances can negligent medical treatment break the chain of causation?

Answer 20

Generally, negligent medical treatment does not break the chain of causation, as a defendant should foresee that medical treatment will be necessary and that it may carry risks of negligence.

However, if the medical treatment is grossly negligent, such that it constitutes a completely inappropriate response to the injury, it may break the chain.

Question 21

How do the actions of a claimant affect the chain of causation?

Answer 21

The actions of a claimant can break the chain of causation if they act highly unreasonably following the defendant’s negligent act, leading to further harm.

Example: McKew v Holland & Hannen & Cubitts (1969), the claimant’s unreasonable descent down a staircase after an injury broke the chain.

Generally, if a claimant acts carelessly, the defendant may claim contributory negligence, reducing damages rather than breaking the chain entirely.

Question 22

What is the principle of remoteness when determining causation?

Answer 22

When a court decides that damage is too far removed, so that a defendant should not be responsible for it, the damage is said to be too remote. This is the issue of remoteness of
damage.

Question 23

What is the basic rule regarding remoteness of damage in tort law?

Answer 23

The basic rule of remoteness of damage states that a defendant is not liable for all consequences of their negligent actions; rather, the damage must not be considered too remote.

Example - Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co. Ltd (The Wagon Mound (No 1)), which established the test of reasonable foreseeability. If a reasonable person would not foresee the damage, the claimant cannot recover it from the defendant.

Question 24

What is the ‘similar in type’ rule in relation to remoteness of damage?

Answer 24

The ‘similar in type’ rule states that if the claimant suffers an injury of a type that was foreseeable, the defendant can still be liable even if the precise manner of injury was not foreseeable.

Example: Hughes v Lord Advocate, a boy suffered burns due to a lamp explosion that was caused by the defendant’s negligence in leaving lamps unattended. While the explosion itself was not foreseeable, the injury (burning) was, thus the defendant was held liable.

Question 25

What is the ‘egg-shell skull’ rule in the context of remoteness of damage?

Answer 25

The ‘egg-shell skull’ rule, or the principle of “taking your victim as you find him,” asserts that a defendant is liable for the full extent of a claimant’s injuries, even if those injuries are more severe than what a reasonable person might expect.

Example: Robinson v Post Office, the claimant suffered an allergic reaction after receiving a medical treatment following the defendant’s negligence. The court held that the defendant was liable for both the original injury and the severe reaction, as the need for medical treatment was a foreseeable consequence of the negligence.

This rule extends liability beyond what a defendant might have reasonably anticipated regarding the claimant’s condition.

Question 26

Provide a summary for factual causation.

Answer 26

Factual causation:
The burden is on the claimant to prove the causal link between the breach and the loss.

The basic test is the ‘but for’ test, which takes the following form:
- But for the defendant’s breach, would the harm to the claimant have occurred?
- If the answer is no – the harm would not have occurred were it not for the defendant’s breach – then causation is satisfied.
- In most cases, this basic test is sufficient to establish causation.

In some circumstances, where there are multiple simultaneous causes, a modified test is applied, so that causation has been satisfied by showing that the defendant’s breach materially contributed to the damage.

Where the claimant suffers one injury which has more than one cause:
- If the injury which the claimant suffers is divisible, the court will apportion damages accordingly;
- If the claimant’s injury is not divisible – so that two or more defendants are liable for
the same damage – the claimant can recover damages in full from any defendant, but between the defendants the Civil Liability (Contribution) Act 1978 will apply (D1 can seek contribution from D2).

Question 27

Provide a summary for legal causation.

Answer 27

Intervening acts
- Actions of a third party may break the chain of causation if not a foreseeable consequence of defendant’s negligence, or if the third party acted intentionally or
recklessly.
- Actions of the claimant themselves may break the chain of causation if entirely unreasonable in all the circumstances.

Question 28

Provide a summary for remoteness of damage.

Answer 28

Remoteness of damage:
- The courts apply the test from The Wagon Mound (No 1): Was the claimant’s damage reasonably foreseeable? If the damage was not reasonably foreseeable, the defendant is not liable for it.

However, there are two provisos to this rule:
- The ‘similar in type’ rule: provided the type of damage was reasonably foreseeable, the defendant is liable, even if the precise way in which it occurred was not foreseeable.
- The ‘egg- shell skull’ rule: provided the type of harm was reasonably foreseeable, the defendant is liable for the full extent of the harm, even if the precise extent of the damage was not foreseeable.