Causation

Question 1

What test is used for establishing factual causation?

Answer 1

‘but for’ test

Question 2

What is the test for factual causation in clinical negligence?

Answer 2

In clinical negligence, where the breach is a failure to advise on risk, the ‘but for’ test can be satisfied if the claimant can prove that they would not have had the treatment or would have deferred the treatment had they been told of the risk.

Question 3

A patient attends their doctor with chest pain. The doctor briefly examines the patient and tells them to stay in the waiting room, where the patient has a heart attack and dies. Medical evidence suggests that if the doctor had treated the patient properly, there was a 45% chance of living.

Which of the following statements is correct in relation to the ‘but for’ test?

The ‘but for’ test is not satisfied as there was not a 100 per cent chance that the patient would have lived without the breach.

The ‘but for’ test is satisfied as there was a 45 per cent chance the patient would have lived were it not for the breach.

The ‘but for’ test is not satisfied as there was a 55 per cent chance the patient would have died without the breach.

The ‘but for’ test is not satisfied as there was a 45 per cent chance the patient would have died without the breach.

The ‘but for’ test is satisfied as there was only a 55 per cent chance the patient would have lived without the breach.

Answer 3

The ‘but for’ test is not satisfied as there was a 55 per cent chance the patient would have died without the breach.

Question 4

A patient was in hospital being treated for heart disease. A nurse misread the consultant’s notes and negligently prescribed the patient incorrect medication (the breach). The patient suffered from a cardiac arrest and subsequent brain damage. Medical evidence suggests that the cardiac arrest was caused by either the heart disease or the breach. Which of the following is most accurate in relation to the ‘but for’ test?

The ‘but for’ test cannot be satisfied as the patient would have suffered the loss irrespective of the breach.

The ‘but for’ test is satisfied as there is a 50 per cent chance that the breach caused the patient’s loss.

The ‘but for’ test cannot be satisfied as there are two equally probable causes of the patient’s loss.

The ‘but for’ test cannot be satisfied as there is more than one potential cause of the patient’s loss.

The ‘but for’ test is satisfied as the breach was one of the causes of the patient’s loss.

Answer 4

The ‘but for’ test cannot be satisfied as there are two equally probable causes of the patient’s loss.

Question 5

A patient undergoes an operation on their face that carries a 5% risk of causing permanent scarring. The risk materialises. The surgeon did not inform the patient of the risk prior to the operation.

Which of the following statements is most accurate in relation to factual causation?

Factual causation is satisfied if the patient can show that they would have deferred the operation had they been told of the risk.

Factual causation is satisfied if the patient can show that they would not have had the operation had they been told of the risk.

Factual causation is not satisfied as there was only a 5% risk of the scarring.

Factual causation is satisfied if the patient can show that they would not have had the operation or would have deferred the operation to a later date had they been told of the risk.

Factual causation is not satisfied as the patient consented to the operation.

Answer 5

Factual causation is satisfied if the patient can show that they would not have had the operation or would have deferred the operation to a later date had they been told of the risk.

Question 6

What happens if the ‘but for’ test cannot be satisfied?

Answer 6

When this happens, if the multiple causes operated together to cause the claimant’s loss, the courts might depart from the ‘but for’ test and apply the material contribution test.

In industrial disease single agency cases (namely mesothelioma and lung cancer caused by asbestos), the courts might depart from the ‘but for’ test and apply the material increase in risk test.

Loss of chance can be argued where the loss is pure economic loss.

Question 7

when the courts might apply the material contribution test and what the claimant must prove in order to satisfy the test?

Answer 7

The court might apply the material contribution test where there is more than one potential cause of the claimant’s loss, and the causes have acted together to cause the loss. The claimant must prove that the breach made a more than negligible contribution to their loss.

Question 8

A patient visits A&E with severe stomach pain. After a five hour delay, they are seen by a doctor and diagnosed with appendicitis. The patient requires immediate surgery, but just before the surgery begins, their appendix ruptures. In the course of the surgery, visible signs of infection are found in the patients body and medical evidence suggests they may have been there for some time. Medical evidence also suggests that the appendicitis and the delay contributed to the rupture and infection.

Which of the following statements is most accurate in relation to factual causation?

Given the appendicitis and delay contributed to the rupture and infection, the material contribution test is satisfied.

There is a greater chance that the delay caused the rupture and infection than the appendicitis alone so factual causation is satisfied.

Factual causation fails as it could have been the appendicitis alone, not the delay, that caused the rupture and infection.

The delay materially increased the risk of rupture and infection meaning factual causation is satisfied.

Factual causation cannot be established as it cannot be shown that ‘but for’ the breach (the delay) the patient would not have suffered a rupture and infection.

Answer 8

Given the appendicitis and delay contributed to the rupture and infection, the material contribution test is satisfied.

Question 9

Which of the following most accurately explains when the courts might apply the material increase in risk test and what the claimant must prove in order to satisfy the test?

Answer 9

The court might apply the material increase in risk test to single agent industrial disease cases where there is more than one potential cause of the claimant’s loss. The claimant must prove that the breach made a greater than de minimus contribution to the risk.

Question 10

When is Apportionment used?

Answer 10

Where there are multiple tortious factors which are known to have caused part of the loss, the courts apportion liability between the defendants in a way that produces a practical result, providing compensation to the claimant while recognising the respective fault of the defendants.

• Where there is more than one defendant, each of whom passes the ‘but for’ test for distinct separate losses, but one of their actions comes after the other, consider multiple sufficient causes. The later action may be non-tortious eg a natural event, but is the factual cause of the later loss.
• If the second defendant has not caused any additional damage to the claimant, they will not be liable.
• If the second event is tortious, the first defendant is liable for the original damage past the point of the second event. The second defendant is liable for any additional damage.
• If the second event is naturally occurring, the defendant is liable for damage only up to the natural event.

Question 11

A claimant suffered a serious arm injury at work due to their employer’s negligence and was signed off work for four months. Two months after the accident at work, the claimant was diagnosed with arthritis in the same arm and had to stop working completely. The arthritis was entirely unconnected with the accident at work and/or the injury that resulted.

Which of the following best describes the employer’s liability for the claimant’s losses?

The employer will be liable for the claimant’s losses up until the point that the arthritis developed.

The employer will be liable for all the claimant’s losses if the second defendant cannot be found.

The employer will be liable for all of the claimant’s losses even past the point of the arthritis.

The employer will be liable for all the claimant’s losses because a defendant is liable for any losses that occur after their breach.

The employer will not be liable for any of the claimant’s losses as the claimant would have suffered arthritis in any event.

Answer 11

The employer will be liable for the claimant’s losses up until the point that the arthritis developed.

re we are dealing with a tort (employer’s negligence) followed by a natural event (arthritis) and Jobling tells us that under such circumstances the defendant is only liable up to the natural event.

Question 12

What three types of intervening acts can break the chain of causation that occur after the breach?

Answer 12

There are three types of novus actus interveniens: acts of God, acts of third parties and acts of claimant.

• Acts of God break the chain of causation if they are exceptional natural events.
• Acts of third parties break the chain of causation if they are highly unforeseeable.
• If the act of third party is medical treatment, this will only break the chain of causation if it is so gross and egregious as to be unforeseeable.
• Acts of claimant break the chain of causation if they are highly unreasonable. It is rare for the claimant’s unreasonable behavior to break the chain of causation as this would normally be dealt with under the defence of contributory negligence.

Question 13

A cyclist negligently collides with a pedestrian who was crossing the road. The pedestrian falls and injures their leg. A passer-by attempts to help the pedestrian and when moving the pedestrian from the road to the pavement, drops the pedestrian. The pedestrian hits their head and suffers a head injury. Which of the following is most accurate in relation to the passer-by’s actions?

The act of the passer-by was unforeseeable and therefore breaks the chain of causation between the cyclists’ s breach and pedestrian’s leg injury. The cyclist will not be liable for any of the pedestrian’s injuries.

The act of the passer-by was unreasonable and therefore breaks the chain of causation between the cyclist’s breach and pedestrian’s head injury. The cyclist will only be liable for the pedestrian’s head injury.

The act of the passer-by was foreseeable and does not therefore break the chain of causation between the cyclist’s breach and the pedestrian’s head injury. The cyclist will be liable for the pedestrian’s leg and head injury.

The act of the passer-by was unforeseeable and therefore breaks the chain of causation between the cyclist’s breach and pedestrian’s head injury. The cyclist will only be liable for the pedestrian’s leg injury.

The act of the passer-by was foreseeable and does not therefore break the chain of causation between the cyclist’s breach and the pedestrian’s leg injury. The cyclist will only be liable for the pedestrian’s leg injury.

Answer 13

The act of the passer-by was foreseeable and does not therefore break the chain of causation between the cyclist’s breach and the pedestrian’s head injury. The cyclist will be liable for the pedestrian’s leg and head injury.

This is the correct answer. An act of a third party (here, the passer-by) will only break the chain of causation between the first defendant’s breach and the claimant’s loss if its is highly unforeseeable (something very unlikely to happen as a result of the defendant’s breach). Here, it is foreseeable that a third party would try and help the injured pedestrian and as a result could make the pedestrian’s injuries worse.

Question 14

A patient attends A&E with a severe headache. A doctor briefly examines the patient and tells them to stay in the waiting room, where the patient has a seizure and dies. Medical evidence suggests that if the doctor had treated the patient properly, there was a 40 per cent chance of living.

Which of the following statements best describes whether the patient’s estate can claim damages from the doctor for the patient’s death?

The patient’s estate can claim damages from the doctor because the negligent failure to treat the patient materially increased the risk of the patient dying.

The patient’s estate cannot claim damages from the doctor because the seizure was a natural cause of death.

The patient’s estate can claim damages from the doctor because the negligent failure to treat the patient reduced the claimant’s chances of surviving.

The patient’s estate can claim damages from the doctor because the negligent failure to treat the patient materially contributed to the patient’s death.

The patient’s estate cannot claim damages from the doctor because the ‘but for’ test is not satisfied.

Answer 14

The patient’s estate cannot claim damages from the doctor because the ‘but for’ test is not satisfied.

Correct: But for the doctor’s breach (briefly examining the patient), the patient still would have died at that time and in that way on the balance of probabilities (Barnett v Chelsea and Kensington Hospital [1969] 1 QB 428). There was only a 40 per cent chance that the patient would have lived if the doctor had examined the patient properly i.e. there was a 60 per cent chance that the patient would have died even if the doctor had examined the patient properly and not been negligent.
While the other answer options might sound plausible, they are each incorrect.
Factual causation cannot be satisfied for personal injuries based on loss of chance (Hotson v East Berkshire Health Authority [1987] AC 750). Where the risk of damage without the breach is 50 per cent or more, the claimant will fail to establish factual causation.
The material contribution test does not apply here. This is not a case where medical science cannot establish the probability that ‘but for’ the breach the death would not have happened. Medical evidence confirms that there was a 60 per cent chance of death even without the breach.
Just because a seizure can be a natural cause of death this does not mean that factual causation will fail. The question is whether the seizure would have happened but for the breach on the balance of probabilities (Barnett v Chelsea and Kensington Hospital [1969] 1 QB 428).
The material increase in risk test does not apply here as currently this is confined to industrial disease cases, namely mesothelioma and lung cancer caused by exposure to asbestos (Fairchild v Glenhaven Funeral Services Ltd & Others [2003] 1 AC 32).

Question 15

Larry suffers physical injuries as a result of falling from a theme park ride. The theme park had failed to install appropriate safety measures. Larry is taken to hospital where a surgeon operates on him. Larry has an allergic reaction to the anaesthetic and suffers additional nerve damage.

Which one of the following is correct with regard to legal causation?

The actions of the surgeon will break the chain of causation and the theme park will only be liable for Larry’s original physical injuries and not the nerve damage.

The actions of the surgeon will not break the chain of causation and the theme park will be liable for all of Larry’s injuries.

The actions of the surgeon will not break the chain of causation but the theme park will only be liable for Larry’s original physical injuries.

The actions of the surgeon will break the chain of causation but the theme park will remain liable for all of Larry’s injuries.

The actions of the surgeon will break the chain of causation and the theme park will not be liable for any of Larry’s injuries.

Answer 15

The actions of the surgeon will not break the chain of causation and the theme park will be liable for all of Larry’s injuries.

Question 16

A man is in a car accident and suffers a head injury. On arrival at hospital, the man is not seen by a doctor for five hours. After seeing the doctor, he is immediately referred for an MRI (a type of scan producing images of inside the body), but there is a further delay of two hours. He is left brain damaged. Medical evidence suggests that the car accident, the first delay and second delay were all capable of contributing to his brain damage.

Which of the following statements is most accurate regarding factual causation in relation to the man’s brain injury?

Given the car accident and two delays were all capable of causing or contributing to the brain injury, the material contribution test is satisfied.

There is a greater chance that the breaches (two delays) caused the brain injury than the car accident so factual causation is satisfied.

Factual causation cannot be established as it cannot be shown that ‘but for’ the breaches (two delays) the man would not have suffered brain injury.

Factual causation fails as it could have been the car accident, not the breaches (the two delays) that caused the brain injury.

The two delays materially increased the risk of brain injury meaning factual causation is satisfied.

Answer 16

Given the car accident and two delays were all capable of causing or contributing to the brain injury, the material contribution test is satisfied.

Correct: This is a case where medical science cannot establish the probability that ‘but for’ an act of negligence (the delays) the brain injury would not have happened, but it can establish that the contribution of the delays was more than negligible (therefore the material contribution test is satisfied) (Bailey v Ministry of Defence [2008] EWCA Civ 883). Medical evidence established that all three causes were capable of contributing to the brain injury.
While the other answer options might sound plausible, they are each incorrect.
The material increase in risk test does not apply here as currently this is confined to industrial disease cases, namely mesothelioma and lung cancer caused by exposure to asbestos (Fairchild v Glenhaven Funeral Services Ltd & Others [2003] 1 AC 32).
Given this is a case where the medical evidence cannot attribute the brain injury to a specific cause, but can say that the car accident and breaches (two delays) contributed to the loss, the courts can depart from the ‘but for’ test and apply the material contribution test (Bonnington Castings Ltd v Wardlaw [1956] AC 613). If the medical evidence had said that it was the car accident OR the breaches which caused the brain injury (not both), then factual causation might have failed on the basis that it could have been the car accident rather than the breaches that caused the brain injury, applying the ‘but for’ test as per Wisher v Essex AHA [1988] AC 1074.
Medical evidence established that all three causes were capable of contributing to the brain injury. It has not been possible to separate out the relative contribution of the three factors, so it is not possible to say that there is a greater chance that the breaches caused the loss.
As explained above, this is a case where the courts might depart from the ‘but for’ test and apply the material contribution test instead (three possible causes and the two delays have made a more than negligible contribution) (Bonnington Castings Ltd v Wardlaw [1956] AC 613).

Question 17

A scaffolder attends a building site where he is working. The day before, his colleague failed to secure some timbers properly. These fall on the scaffolder’s head and cause him to suffer a serious head injury. He had not yet put on his safety hard hat.

What is the scaffolder’s legal position regarding legal causation in his negligence claim against his colleague?

If the scaffolder’s failure to wear a hard hat is considered unreasonable, this may break the chain of causation, but a court is more likely to deal with this in terms of contributory negligence.

If the scaffolder’s failure to wear a hard hat is considered highly unreasonable, this may break the chain of causation, but a court is more likely to deal with this in terms of contributory negligence.

If the scaffolder’s failure to wear a hard hat is considered unforeseeable, this may break the chain of causation.

If the scaffolder’s failure to wear a hard hat is considered unreasonable, this may break the chain of causation.

The scaffolder’s failure to wear a hard hat would be considered highly unreasonable and would therefore break the chain of causation. He will not receive any damages for his head injury.

Answer 17

If the scaffolder’s failure to wear a hard hat is considered highly unreasonable, this may break the chain of causation, but a court is more likely to deal with this in terms of contributory negligence.

Correct. The scaffolder’s failure to wear a hat might be considered highly unreasonable and therefore break the chain of causation (McKew v Holland). However, this answer reflects the approach of the courts in preferring to reduce the damages of a culpable claimant rather than find that the claimant’s actions have broken the chain of causation.
While the other options might sound plausible, they are each incorrect.

Question 18

A woman contracts mesothelioma as a result of exposure to asbestos. Medical evidence has proved that mesothelioma (a type of lung cancer) can be caused by a single asbestos fibre entering the lung. The woman was negligently exposed to asbestos by a previous employer over 40 years ago. She was also exposed to asbestos in the general atmosphere as a young girl, as she lived in close proximity to a factory which used asbestos.

Which of the following statements is most accurate regarding factual causation in relation to the previous employer?

Factual causation is satisfied as the woman can show that the employer materially increased the risk of her contracting mesothelioma.

Factual causation is satisfied as there is a chance that the employer caused the woman’s mesothelioma.

Factual causation fails as the woman cannot show on the balance of probabilities that the employer caused her mesothelioma. The woman could have been exposed to the single fibre as a young girl.

Factual causation is satisfied as the employer materially contributed to the woman’s mesothelioma.

Factual causation is not satisfied as there are two possible independent causes and the ‘but for’ test therefore fails.

Answer 18

Factual causation is satisfied as the woman can show that the employer materially increased the risk of her contracting mesothelioma.

Correct. It is impossible for medical experts to say which exposure caused the mesothelioma. The ‘but for’ test therefore fails as it cannot be said on the balance of probabilities that the employer caused the woman’s mesothelioma (there is only a 50 per cent chance). However, this is an example of where the courts depart from the ‘but for’ test and apply the material increase in risk test (McGhee v National Coal Board [1973] 1 WLR 1, applied in Fairchild v Glenhaven Funeral Services Ltd & Others [2003] 1 AC 32). The employer might well be held liable for damage that it did not cause but this has to be weighed against the argument that people who suffer harm due to their employers’ breach deserve to be compensated. In mesothelioma cases, science is unable to provide the claimant with the means to ever establish factual causation using the ‘but for’ test (unless the claimant worked for only one employer who exposed them to asbestos, which is rare). The courts have therefore concluded that to achieve fairness the ‘but for’ test should be departed from and the material increase in risk test applied. Here it could be shown that the employer materially increased the risk of the woman contracting mesothelioma (given it only takes one fibre to cause the disease).
While the other answer options might sound plausible, they are each incorrect.
This is a situation (mesothelioma cases) where the courts depart from the ‘but for’ test and apply the material increase in risk test instead(McGhee v National Coal Board [1973] 1 WLR 1, applied in Fairchild v Glenhaven Funeral Services Ltd & Others [2003] 1 AC 32). It therefore does not matter that the woman cannot show on the balance of probabilities that the employer caused the mesothelioma.
The employer is liable for the mesothelioma because there is a chance it did cause the disease, but the correct legal terminology is material increase in risk(McGhee v National Coal Board [1973] 1 WLR 1, applied in Fairchild v Glenhaven Funeral Services Ltd & Others [2003] 1 AC 32).
The material contribution test does not apply here. As mesothelioma can be caused by exposure to a single asbestos fibre, the woman will not be able to prove on the balance of probabilities that the employer materially contributed (made a more than negligible contribution). The employer may have made no contribution at all to the disease.
There are two possible causes and the ‘but for’ test does fail, but this is an example of where the courts depart from the ‘but for’ test and apply the material increase in risk test instead (McGhee v National Coal Board [1973] 1 WLR 1, applied in Fairchild v Glenhaven Funeral Services Ltd & Others [2003] 1 AC 32).

Question 19

‘similar in type’ rule?

Answer 19

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.

Question 20

Egg-shell skull rule?

Answer 20

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.

Question 21

Question 1
A solicitor acts for a client who was injured while a passenger in a taxi. The client was
travelling in the taxi when a motorbike driver pulled out of a side road and drove into the
path of the taxi. The client says that no collision in fact occurred between the vehicles but
the client was thrown sideways when the taxi driver had to swerve quickly to avoid the
motorbike. This caused the client to injure their head as it hit the inside window of the taxi.
The Police Accident Report confirms that the motorbike driver had ignored a ‘Give Way’ sign
and that the taxi driver was travelling at 40 mile per hour on a road where the speed limit
was 30 miles per hour. Expert evidence confirms that, if the taxi driver had been driving within
the speed limit, then they would not have had to swerve to avoid the motorbike.
Which of the following statements best explains how the client will be able to show that
the breach of duty by the taxi driver is a factual cause of their injury?
A Because but for the breach of duty by the taxi driver, the client would not have been
injured.
B Because but for the breach of duty by the motorbike driver, the client would not have
been injured.
C Because the actions of the motor bike driver should have been reasonably foreseeable
by the taxi driver.
D Because the breach of duty by the taxi driver made a material contribution to the
injuries suffered by the client.
E Because the injury suffered by the client is a reasonably foreseeable consequence of
the taxi driver’s breach of duty.

Answer 21

Option D is correct – it states the correct test for factual causation where there are two
separate tortious acts, which simultaneously cause damage to the client.
Option A is wrong because this is a case of multiple causes. Here there are two separate
tortious acts, which simultaneously cause damage to the client. The client’s injury was caused
by the breach of duty by the taxi driver but also by the breach of duty by the motorbike driver.
Satisfying the ‘but for’ test in this situation would be problematic because the taxi driver could
allege that but for the actions of the motorcycle driver they would not have had to swerve
at all. Equally, the motorbike driver could allege that, but for the fact that the taxi driver was
speeding, their pulling out of the junction would not have injured the client.
Option B is therefore wrong for the same reason (although it focuses on the breach by the
motorbike driver and not the taxi driver).
Option C is wrong because it considers whether the actions of the motorbike driver may have
broken the chain of causation and not factual causation.
Option E is wrong because it considers the question of remoteness rather than factual
causation.

Question 22

Question 2
A claimant suffered a badly broken leg while being a passenger on a motorbike driven by
the defendant. The defendant pulled out of side road into the path of an oncoming car. The
claimant feared that the car would hit the defendant’s motorbike. In order to avoid this, they jumped from the motorbike and broke their leg in the fall. In fact, the car driver managed
to swerve around the defendant’s motorbike and avoided a collision.
Which of the following statements best explains how the claimant will be able to show
that the fact that she jumped off the motorbike did not act as an intervening act that
broke the chain of causation?
A Because the claimant’s act of jumping off the motorbike was entirely reasonable in the
circumstances that she was in at the time.
B Because the claimant’s act of jumping off the bike ought to have been foreseen by the
defendant as a likely consequence of their negligence.
C Because the claimant’s act of jumping off the bike caused an injury that was
reasonably foreseeable.
D Because the claimant’s act of jumping off the bike caused an injury of a type that was
reasonably foreseeable, even if the precise way it happened was not foreseeable.
E Because the claimant’s act of jumping off the bike caused an injury of a type that was
reasonably foreseeable, even if the precise extent of the injury was not foreseeable.

Answer 22

Answer
Option A is correct – the test that is applied for when the act of the claimant themselves
may be an intervening act and break the chain of causation is whether their act was entirely
reasonable in the circumstances that they were in at the time.
Option B is wrong as it is the test that is applied when the negligent act of a third party may
break the chain of causation.
Option C is wrong as this is the basic rule for remoteness of damage from The Wagon Mound.
Option D is incorrect as this is the ‘similar in type’ rule for remoteness.
Option E is incorrect as this is the ‘egg- shell skull’ rule for remoteness.

Question 23

Question 3
A solicitor is instructed by a client who has suffered a bad head injury due to an accident
at work. His employers’ have admitted that they breached the duty they owed the client
but are disputing liability on the issue of causation. The employers’ argument is that, while
the client was healthy at the time of the incident, medical evidence shows that concussion
injuries from playing rugby resulted in the long- term effects of the head injury due to the
accident being much worse than they would have been otherwise. The employers have
made an offer to settle based upon the effects of the head injury on a person who did not
have any pre- accident concussion injuries.
Which of the following statements best explains whether the solicitor should advise the
client to accept the employers’ offer?
A No, because the additional long- term effects of the client’s head injury were
reasonably foreseeable.
B No, because the head injury was reasonably foreseeable and the employer is liable for
the full extent of the harm, even if the additional long- term effects of the client’s head
injury were not foreseeable.
C No, because the head injury was reasonably foreseeable and the employer is liable
for the full extent of the harm, even if the precise way the head injury occurred was not
foreseeable.
D Yes, because the additional long- term effects of the client’s head injury were not
reasonably foreseeable.
E Yes, because the additional long- term effects of the client’s head injury were caused by
the client.

Answer 23

Answer
Option B is correct as this explains the ‘egg- shell skull’ rule and why the offer should be
rejected.
Option A is wrong because it is likely that a court would find that the additional long- term
effects of the client’s head injury were not reasonably foreseeable, ie the client would fail on
the basic rule on remoteness as it was not foreseeable that the effects of the injury would be
worse because of the client’s concussion injuries. However, the ‘egg- shell skull’ proviso to the
basic rule on remoteness would apply. This means that the employers must take the client as
they find them, ie with the pre- existing concussion injuries.
Option C is wrong because, while it explains the ‘similar in type’ proviso to the basic rule on
remoteness, this proviso is not relevant on the facts of the question.
Option D is wrong because it neglects to consider the ‘egg- shell skull’ rule.
Option E is wrong because whether the client was in any way at fault in causing the pre-
existing concussion injuries is not relevant to an application of the ‘egg- shell skull’ rule. (If a
claimant’s own unreasonable act, if done after the defendant’s breach of duty, results in their
injuries being more severe, then there may be a break in the chain of causation. However, this
does not apply to the facts of the question.)