C2C: Causation Flashcards
What are the two types of causation that need to be proven?
Factual causation (in fact) - who actually caused the harm?
Legal causation (in law) - what damage should be recoverable from the defendant?
What is the test for factual causation? Which case shows this? (Arsenic)
The ‘but for’ test, which asks ‘would the claimant have suffered the loss but for the defendant’s breach?’ If the answer is no, then factual causation is established.
E.g. Barnett v Chelsea [1969], Barnett would have died from arsenic poisoning anyway.
If it was more probable that the defendant was responsible for the loss than not, would that be enough to establish factual causation?
Yes, in practice the ‘but for’ test uses the balance of probabilities, meaning if the defendant was more probable than not the cause of the loss, that would be enough to establish causation in fact (factual causation).
What is the ‘balance of probabilities’ in practical numerical terms?
I.e. if someone is more probable than not responsible for the loss. E.g. Gregg v Scott [2005] showed a strict numerical approach, where the court found the claimant’s doctor 45% responsible for the deterioration of a patient’s condition and therefore the claim failed. The claimant’s condition would have deteriorated anyway.
In cases of multiple causes of harm, what is the aim of the claimant?
The claimant must prove that the defendant’s breach of duty ‘materially contributed’ to the risk of the injury.
What are the two alternative tests to use in cases of multiple causes of harm?
Where the injury is ‘indivisible’
Where the injury is ‘divisible’
Explain what happens when the injury in a case of multiple causes of harm is ‘indivisible’?
Indivisible: if it is not possible to divide up an injury, the ‘but for’ test applies strictly.
If there is more than a 50% chance that the defendant’s action caused the harm, they will be liable for it. If it is less than 50%, then they will not be liable. See Wilsher v Essex Area Health Authority [1986].
Explain what happens when the injury in a case of multiple causes of harm is ‘divisible’?
Divisible: If it is possible to divide up an injury, the ‘but for’ test is altered so that a defendant would be liable to a claimant if the defendant’s tortious act has made a ‘material contribution’ to the risk that the claimant will suffer harm, see Bonnington [1956]. This removes the requirement for the claimant to prove on the balance of probabilities that the defendant did in fact cause the harm claimed.
Give an example of when a case was indivisible and it failed (lump, 45)?
Gregg v Scott [2005], the House applied this strict numerical approach. The claimant’s doctor failed to diagnose a lump under his arm as potentially cancerous. As a consequence, treatment was delayed for nine months, by which time the cancer had spread. This made the treatment required more intensive than might have been the case and significantly reduced the patient’s prospects of survival. The evidence accepted by the judge was that the misdiagnosis deprived the claimant of a 45 per cent chance of avoiding the deterioration in his condition. The House therefore held that the claim should fail: on the balance of probabilities, the claimant’s condition would have deteriorated anyway. Here, as in Page v Smith (No. 2) [1996], the exact quantification of the risk was crucial.
What are the special rules that apply in mesothelioma cases?
When there are multiple employers who breached their duty of care, but it is impossible to tell under which employer the disease started, the claimant must only prove only that any one employer’s negligence has materially increased the risk of contracting the disease in order to be able to recover full damages from that employer. That employer would then be able to try and recover some of the damages from other previous employers of the claimant.
Fairchild v Glenhaven [2002] - only necessary to prove that any one employer’s negligence had materially increaed the risk of the disease in order to get full damages from the company.
What was the surprise ruling from Barker v Corus [2006] and what happened to the decision?
Fairchild v Glenhaven [2002] was challenged in Barker v Corus [2006] where HoL ruled that the claimant could only recover a proportion of damages for the disease, based on the contribution that defendant’s conduct has made to his chances of contracting the illness, by using duration and concentration of the exposure.
Barker [2006] was so unpopular that Parliament reversed the decision in the Compensation Act 2006.
What did s3 Compensation Act 2006 change?
Barker [2006] was so unpopular that Parliament reversed the decision in the Compensation Act 2006.
Under s3 Compensation Act 2006, if a claim for damages is made for mesothelioma contracted as a result of contact with asbestos, a person will be held jointly and severally responsible if they materially increased the risk of such exposure. This means that any one employer can be liable for the whole of the damages due, even if their contribution to the increased risk was small.
What is a novus actus interveniens?
A novus actus interveniens is a break in the chain of causation, meaning the original tortfeasor will not be liable for events that happen after the break. It literally means ‘a new intervening act’.
What are the two types of novus actus interveniens?
There are two types: intervening third-party acts and intervening acts of the claimant.
Give an example of when the chain of causation was broken by a third party (motorbike/tunnel)?
Knightley v Johns [1982], a third party’s action broke the chain of causation completely.
The defendant driver negligently overturned his car in a tunnel. The police were called to the accident scene, and the inspector who was in charge initially failed to close one end of the tunnel. He later ordered the claimant, a police motorcyclist, to drive the wrong way down the tunnel (against the traffic) in order to do so.
The motorcyclist was injured in a collision with another (non-negligent) motorist. The Court of Appeal held that the original defendant was not to be held liable for this second incident, because it had been caused by the negligence of the inspector in ordering his colleague to drive against the flow of traffic.
Give an example of a time where the chain of causation was not broken due to reasonable foreseeability (amputation)?
Webb v Barclays Bank plc and Portsmouth Hospitals NHS Trust [2001].
The claimant injured her knee in a fall at her workplace due to her employer’s negligence. She was then negligently advised to have her leg amputated above the knee. The Court of Appeal held that the chain of causation had not been broken, and that the negligence in advising amputation “had not eclipsed the original wrongdoing”. Damages awarded in respect of the amputation were apportioned 25 per cent to the employer and 75 per cent to the NHS Trust.
Can a claimant claim against both the defendant and third party, if a third party is found negligent in a novus actus interveniens or can they only claim damages from one of them?
Yes, if the third party is found negligent, then claimant can claim against BOTH the defendant and third party and damages can be SHARED between them.
What happens if a claimant is found to be negligent?
If claimant is found negligent, there could be contributory negligence.
What are the important factors that must be present for an intervening third party act?
The act must be reasonably foreseeable at the time of breach, from an objective standpoint. (Anyone could see it coming.)
E.g. Knightley v Johns [1982], the inspector (third party) broke the chain of causation completely.
What is the rule for cases of negligent medical treatment acting as a novus actus interveniens?
In cases of negligent medical treatment acting as a novus actus interveniens (when a victim needs medical treatment for a tort injury), the general rule is that such treatment may reduce the original defendant’s liability but not remove it completely, as the victim wouldn’t have needed medical treatment if it wasn’t for the original tort.
Causing injury exposes claimant to the risk of negligent medical treatment - it doesn’t break the chain of causation is a foreseeable consequence. Courts will apportion blame.
What is the most important factor that must be present for an intervening act of the claimant?
The act of the claimant must be entirely unreasonable in the circumstances.
The test for this is more demanding, as the courts try to stop the claimants from undermining their own rights.
If someone tries to escape from being trapped, would that be an intervening act of the claimant (toilet roll/balcony)?
No, unless the act was entirely unreasonable.
REASONABLE: Sayers v Harlow Council [1958], locked in toilet, climbed on toilet roll holder which spun and caused injuries. Escaping was reasonable, so did not break chain.
UNREASONABLE: Clay v TUI UK Ltd [2018], a holidaymaker had inadvertently locked his family on the balcony of their hotel room. The lock was faulty so the family was trapped. The claimant attempted to step across from a neighbouring balcony, fell and fractured his skull. Whilst there was a breach, and the ”but for” test was satisfied (establishing a chain of causation), the court decided that the claimant’s antics were entirely unreasonable, so the claimant was in effect the author of his own injury via his “strikingly new and unreasonable act”.
Is it an intervening act of the claimant, who has already suffered some harm, to worsen their own situation? What does it depend on?
It depends on whether the claimant was deemed to be negligent or not.
NEGLIGENT: McKew v Holland [1969], leg was broken by defendant, claimant went down steep stairs with no handrail and was injured when it gave way. HoL held that going down steep stairs with no handrail was contributorily negligent, so chain was broken.
Spencer v Wincanton Holdings Ltd [2009], the claimant (who had one leg from the amputation from an previous accident years ago) was not held to be negligent when he fell and injured himself at a petrol station, without asking for help or using a stick/artificial leg. Therefore the defendants were still liable.
These cases shows that a claimant who has already suffered some harm must take care not to worsen their own situation: if they negligently do so, they may receive no, or reduced, damages.
Is suicide an intervening act of a claimant who had depression and post-traumatic stress disorder from an injury?
See Corr v IBC [2008], husband had depression and post-traumatic stress disorder from a serious industrial injury, HoL ruled that suicide of claimant’s husband did not break chain as it was reasonably foreseen.
What must be proven after factual causation?
Legal causation: whether the defendant SHOULD be liable for this damage.
What are the two elements of legal causation?
Foreseeability of damage
The ‘thin skull’ rule
In legal causation, explain foreseeability of damage - how specific does the claimant need to be about the damage?
Foreseeability of damage, damages will only be given if the type or kind of injury is a foreseeable result of the breach of duty.
It could be too remote from the breach of duty and damages won’t be awarded. See The ‘Wagon Mound’ [1961].
Claimants don’t even need to prove that the specific damage suffered was reasonably foreseeable, just that the type of damage suffered was reasonably foreseeable.
Explain the ‘thin skull’ rule?
The ‘thin skull’ rule, the defendant must take his victim as he finds him.
Also known as ‘egg-shell skull’ or ‘vulnerable claimant’.
See Smith v Leech Brain [1962] (lip cancer), Robinson v Post Office [1974] (allergy to anti-tetanus) and Lagen v O’Connor [2004] (impecuniosity).
Explain material contribution in terms of Bonnington Castings Ltd v Wardlaw [1956] (two types of dust)?
Bonnington Castings Ltd v Wardlaw [1956], where the defendant had exposed the claimant to dust in two different ways, one of which (using badly maintained swing grinders) was negligent, and the other (using a pneumatic hammer) not negligent. Because of both of these exposures, the claimant contracted pneumoconiosis. The claimant succeeded in establishing causation because he showed that the defendant’s breach of duty MATERIALLY CONTRIBUTED to the disease from which he suffered, that is, the defendant’s breach made the damage worse. The defendant was liable only for that proportion of the damage to which he had negligently contributed. The same applies where more than one defendant has materially contributed to the claimant’s damage.
Explain the defendant material increasing the risk in McGhee v National Coal Board [1973] (washing facilities) and whether or not the defendant would be liable?
McGhee v National Coal Board [1973] the claimant cleaned brick kilns and then cycled home. There were no washing facilities at his workplace, and both his work and the cycling caused him to sweat while brick dust and dirt were on his skin. Because of the inadequacy of the washing facilities provided by the board, it was the post-work exposure that was negligent. He suffered from dermatitis (a skin disease) and sued the defendant. Crucially, it was accepted that unlike the situation in Bonnington, the dermatitis was not caused cumulatively. It was caused by a single exposure to the dust. Thus, it was not scientifically possible to determine whether the “guilty” dust or the “innocent” dust actually caused the dermatitis. Four of the five Law Lords held that although other factors were also involved, the lack of washing facilities at his workplace had “materially increased the risk of” injury, so the defendant was liable to him.
When looking at factual causation, what is the test for remoteness/reasonable foreseeability? Explain in terms of the Wagon Mound case.
Overseas Tankship (UK) Ltd v Morts Dock & Engineering Co (The “Wagon Mound”) [1961], in which it was established that the test for remoteness is whether a reasonable person would have foreseen the type or kind of damage that occurred when they acted negligently. The defendants’ employees negligently spilt oil in Sydney Harbour. The oil was driven by wind and tide to the claimants’ wharf, where welding was taking place. The claimants consulted an expert who said there was no danger of the oil catching fire, so they continued welding. A spark fell into the water and, because of the oil, set fire to some floating cotton waste. The fire damaged the wharf. The Privy Council held that the fire was not reasonably foreseeable and so the defendants were not liable.
Is a predisposition to cancer covered by the thin skull rule?
Yes.
Smith v Leech Brain [1962], the claimant’s husband sustained a burn on his lip when he was at work, caused by the negligence of the defendant, his employer. This burn became cancerous, and he died as a result. It was shown that he had an existing predisposition to cancer, but the defendant was liable for his death since it had to take him as it found him.
Would allergy to an injection be covered by the thin skull rule?
Yes.
Robinson v Post Office [1974]. The claimant cut himself at work through the negligence of the defendant, his employer. He was given an anti-tetanus injection to which he was allergic, and suffered brain damage as a result. The Court of Appeal held that the defendant was liable for the brain damage as well as the original injury. The court reasoned that the anti-tetanus injection was a foreseeable consequence of the injury, and so the defendant must take the victim as it found him.
Does the thin skull rule stretch to impecuniosity?
Yes.
Lagden v O’Connor [2004], it was held that the thin skull principle extended even to a claimant’s impecuniosity. The claimant’s car was damaged by the defendant’s negligence, and the claimant did not have enough money to hire a car at normal rates. He therefore hired a car under a more expensive credit hire company scheme. The House of Lords held, by a 3:2 majority, that these higher costs were fully recoverable, because the claimant was innocent and his lack of financial means had meant that he could not obtain the use of a replacement car except by paying these higher charges.
