Causation

Question 1

Which of the following sentences correctly sets out that the ‘but for’ test is satisfied?

(a) 
But for the defendant’s breach, the claimant would have suffered their loss at that time and in that way.

(b) 
But for the defendant’s breach, the claimant would not have suffered their loss at that time and in that way.
(c) 
But for the defendant’s duty, the claimant would have suffered their loss at that time and in that way.

(d) 
But for the defendant’s duty, the claimant would not have suffered their loss at that time and in that way.

(e) 
But for the claimant’s loss, the claimant would not succeed in the tort of general negligence.


Answer 1

(b) 
But for the defendant’s breach, the claimant would not have suffered their loss at that time and in that way.

In order to establish factual causation, the claimant must prove on the balance of probabilities, that if it were not for the defendant’s breach, they would not have suffered their loss at that time and in that way.


Question 1

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?

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

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

(c) 
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.

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

Answer 1

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

n order to establish factual causation, the claimant must prove on the balance of probabilities, that if it were not for the defendant’s breach, they would not have suffered their loss at that time and in that way. The patient in this scenario cannot do this. On the balance of probabilities, if it were not for the doctor’s breach, they would have died anyway.


Question 2

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?

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

(b) 
The ‘but for’ test cannot be satisfied as there are two equally probable causes of the patient’s loss.
(c) 
The ‘but for’ test is satisfied as there is a 50 per cent chance that the breach caused the patient’s loss.

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

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

Answer 2

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

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. The patient cannot only prove that there was a 50 per cent chance. Factual causation fails. See Wilsher.

Question 3

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?

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

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

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

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


Answer 3

(b) 
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.

In clinical negligence cases where the breach is a failure to advise on risk, the claimant must prove on the balance of probabilities that they would not have gone ahead with the treatment had they been informed of the risks. If they cannot do this, they can still satisfy factual causation if they can prove on the balance of probabilities that they would have deferred the treatment had they been informed of the risks. The rationale behind this being that ‘but for’ the doctor’s negligent failure to warn the claimant of the risk, the actual injury would not have occurred when it did and the chance of it occurring on a subsequent occasion (if the claimant had chosen to have the operation at a later date) was small.

Question 4

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

(a) 
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.

(b) 
The court might apply the material contribution test where there is more than one potential cause of the claimant’s loss, and the breach increased the risk of the loss. The claimant must prove that the breach made a more than negligible contribution to their loss.

(c) 
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 significant contribution to their loss.

(d) 
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 independently to cause the loss. The claimant must prove that the breach made a more than negligible contribution to their loss.

(e) 
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 greater than 50 per cent contribution to their loss.

Answer 4

(a) 
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 5

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?

(a) 
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 50% contribution to the risk.

(b) 
The court might apply the material increase in risk test to 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.

(c) 
The court might apply the material increase in risk test to 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 significant contribution to the risk.

(d) 
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.

(e) 
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 more than negligible contribution to their loss.

Answer 5

(d) 
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 6

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?

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

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

(c) 
Given the appendicitis and delay contributed to the rupture and infection, the material contribution test is satisfied. This is a case where medical science cannot establish the probability that ‘but for’ an act of negligence (the delay) the rupture and infection would not have happened. However, it can establish that the contribution of the delay was more than negligible (therefore the material contribution test is satisfied) (Bailey v Ministry of Defence [2008] EWCA Civ 883). Medical evidence established that the delay and appendicitis together caused the rupture and infection.

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

(e) 
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 6

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

This is a case where medical science cannot establish the probability that ‘but for’ an act of negligence (the delay) the rupture and infection would not have happened. However, it can establish that the contribution of the delay was more than negligible (therefore the material contribution test is satisfied) (Bailey v Ministry of Defence [2008] EWCA Civ 883). Medical evidence established that the delay and appendicitis together caused the rupture and infection.


Question 7

Which of the following best describes apportionment?

(a) 
Where there are multiple tortious factors which have caused the claimant’s loss, the courts will divide liability equally amongst the various defendants.

(b) 
Where there are multiple tortious factors at play, the courts will rely on apportionment to establish factual causation and divide liability between the various defendants.

(c) 
Where there are multiple tortious factors which have caused the claimant’s loss, the courts will divide liability between the various defendants and claimant reflecting the respective fault of each claimant.

(d) 
Where there are multiple tortious factors which have caused the claimant’s loss, the courts will divide liability between the various defendants reflecting the respective fault of each defendant. Apportionment is a calculation applied once factual causation has been established.

(e) 
Where there are multiple tortious factors at play, the courts will rely on apportionment to establish factual causation and divide liability between the various defendants and claimant.


Answer 7

(d) 
Where there are multiple tortious factors which have caused the claimant’s loss, the courts will divide liability between the various defendants reflecting the respective fault of each defendant.

Apportionment is a calculation applied once factual causation has been established.


Question 8

What was a key difference between Baker and Jobling that might help to explain the contrasting decisions?

(a) 
In Baker the second defendant could not be found whereas in Jobling the second defendant could be found.

(b) 
In Jobling there were two tortious events and in Baker there was a tort followed by a natural event.

(c) 
In Baker there were two tortious events and in Jobling there was a tort followed by a natural event.
(d) 
In Baker the second defendant could be found whereas in Jobling the second defendant could not be found.


Answer 8

(c) 
In Baker there were two tortious events and in Jobling there was a tort followed by a natural event.

In Jobling, the further back injury would have happened anyway, whether the claimant was injured or not. This was not the case in Baker.


Question 9

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?

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

(b) 
The employer will be liable for the claimant’s losses up until the point that the arthritis developed.
(c) 
The employer will be liable for all the claimant’s losses if the second defendant cannot be found.

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

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

Answer 9

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

Here 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 10

Which of the following lists most accurately the correct types of novus actus interveniens?

(a) 
Acts of claimant; acts of God; and acts of third parties.

(b) 
Acts of claimant; acts of God; acts of third parties; and acts of defendant.

(c) 
Acts of claimant; acts of third parties; acts of medical negligence; and acts of defendant.

(d) 
Acts of claimant; acts of God; and acts of medical negligence.

(e) Acts of claimant; acts of God; and acts of defendant.

Answer 10

(a) 
Acts of claimant; acts of God; and acts of third parties.


Question 11

Which of the following statements is most accurate in relation to the legal test for an act of claimant?

(a) The act of claimant must be unreasonable and unforeseeable in order to break the chain of causation.

(b) 
The act of claimant must be unreasonable in order to break the chain of causation.

(c) The act of claimant must be unforeseeable in order to break the chain of causation.

(d) 
The act of claimant must be highly unreasonable in order to break the chain of causation.

(e) 
The act of claimant must be grossly negligent in order to break the chain of causation.

Answer 11

(d) 
The act of claimant must be highly unreasonable in order to break the chain of causation.


Question 12

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?

(a) 
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.

(b) 
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.

(c) 
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.

(d) 
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.

(e) 
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.

Answer 12

(e) 
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.

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 13

What is the difference between legal and factual causation?

Answer 13

Factual causation = establishes link between breach and loss

Legal causation = considers whether there are any grounds upon which link should be regarded as having been broken

Question 14

What is the test for factual causation?

Answer 14

But for test: on balance of probabilities, but for D’s breach of duty, would C have suffered their loss at that time and in that way?

If no: factual causation satisfied - C would not have suffered loss were it not for D’s breach

If yes: factual causation not satisfied, and D is not liable - C would have suffered loss even without D’s breach

Balance of probabilities means more then 50% chance that D’s breach caused C’s loss

Question 15

What is the position in factual causation in clinical negligence where the breach constitutes a failure to advise on risks?

Answer 15

Where breach is failure to advise on risk, but for test is satisfied where C can prove that on balance of probabilities that if they had been warned of risk, they would not have had operation or deferred it later date

Question 16

What is the material contribution test and when does it apply?

Answer 16

Applies to factual causation where there is more than one cause of C’s loss and causes were acting together cumulatively to cause loss

Material contribution = more than negligible contribution to loss

Caselaw has confirmed that material contribution test applies to sequential cumulative causes (ie where one cause comes after the other) but also to simultaneous cumulative causes (where causes operate in same time)

Question 17

What is the material increase in risk test and when does it apply?

Answer 17

What medical experts could demonstrate was that tortious exposure materially increased risk of contracting dermatitis - the longer the dust was on C’s skin, the greater the risk of contracting dermatitis

This material contribution to risk must be more than de minimis

C does not even have to prove that breach made any actual contribution to loss, just that it increased chances of C suffering that loss

Test only applied in very limited situations - currently confined to industrial disease cases only and only where there is scientific uncertainty over cause

Question 18

When may loss of chance apply?

Answer 18

Courts have allowed tests in cases involving pure economic loss (does not seem to apply to medical negligence or personal injury cases)

Maples Group v Simmons & Simmons: claimant lost the chance to negotiate a clause in a contract as a result of the solicitor’s failure to advise. Causation was successful as the claimant proved that there was a real and substantial chance that the seller would have agreed to the clause.

Question 19

What is apportionment?

Answer 19

Calculation to apply once factual causation has been established - where there are multiple tortious factors which are known to have caused part of loss, courts apportion liability between Ds in way that produces practical result, providing compensation to C while recognising respective fault of Ds

Question 20

Does apportionment apply in mesothelioma cases?

Answer 20

s. 3 CA 2006: Ds are jointly and severally liable - means that any or all of negligent employers who exposed C to asbestos will be liable to C for whole sum of damages, but they can recover contributions from each other if necessary, to make loss fair

Question 21

What happens if there are multiple sufficient causes?

Answer 21

Where C suffers damage as result of D’s negligence and then some time late second event occurs which causes exactly same damage, or worsens damage already caused

In these situations, events are not linked and there are two or more distinct losses that can be attributable to distinct causes - is original tortfeasor responsible for loss caused by the other?

Question is whether original tortfeasor ie D who caused first loss should be responsible for loss caused by later event - whether it is fair to hold them responsible where C’s condition has been affected by someone or smth else before case gets to trial

Question 22

What are the three types of novus actus interveniens?

Answer 22

1. Acts of God/natural events: Act of god breaks chain if it is some exceptional natural event eg being struck by lightning, drowning in flood or onset of certain disease - Natural events will not break chain of causation if they could have been foreseen and D should have taken them into account as events that were likely to happen
2. Acts of TPs: Where subsequent event is act of TP, courts gave viewed it as breaking chain if it was highly unforeseeable ie smth that was very unlikely to happen as result of D’s negligence

2a. Acts of TPs in medical treatment: Medical treatment will not break chain unless it is so gross and egregious as to be unforeseeable

3. Acts of C: act must be highly unreasonable - rare for C’s unreasonable behaviour to break chain of causation as this would normally be dealt with under defence of contributory negligence, bc it reflects extent to which C contributed to loss while D is still liable

Question 23

What is the effect of a novus actus interveniens?

Answer 23

Breaks chain of causation - D will still be responsible for any loss before novus actus event but will not be responsible for any loss after