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Tort Law > Causation > Flashcards

Causation Flashcards

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1
Q

After breach is established

A

Claimant must prove that this breach caused the damage.

Without it the claim will fail.

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2
Q

To determine if there is causation two points must be considered

A

1) Factual causation
2) Legal causation

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3
Q

Factual causation

A

Deals with establishing the link between breach and damage

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4
Q

Legal causation

A

Involves considering whether there are any grounds upon which the link should be regarded as having been broken

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5
Q

Factual Consideration Test

A

On the balance of probabilities, but for the defendant’s breach of duty, would the claimant have suffered their loss at that time and in that way?

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6
Q

Satisfaction of the “but for” test

A

The claimant would not have suffered their loss were it not for the defendant’s breach

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7
Q

But for test is not satisfied

A

Claimant would have suffered their loss even without the defendant’s breach

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8
Q

Barnett v Chelsea and Kensington Hosp 1969

FACTS

A

Hosp breached DoC as Dr fail to carry out proper examination.
Patient died of arsenic poisoning after drinking poisoned tea.
He would have died even if Dr has examined him.
Little to no chance antidote could have been administered to him

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9
Q

Barnett v Chelsea and Kensington Hosp 1969

HELD

A

Claim failed for causation
On the balance of probabilities
Still would have died.

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10
Q

The “but for” test must be proved

A

Must be proved on the balance of probabilities
With a more than 50% chance that the defendant’s breach caused the claimant’s loss.

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11
Q

Wilsher v Essex AHA 1988
FACTS

A
  • Claimant was born prematurely and suffered a condition that caused him to go blind.
  • could have been caused by any one of five equally probable different factor
  • Only one was tortious.
  • Evidence suggested that only one factor caused the loss.
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12
Q

Wilsher v Essex AHA 1988
HELD

A

Claimant had to prove that but for the defendant’s breach he would not have suffered blindness.
Had to establish more than 50%, could only establish 20%

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13
Q

Case used for factual causation in clincial negligence where the breach is to advise on risks

A

Chester v Afshar 2004

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14
Q

Chester v Afshar 2004
FACTS

A
  • Failed to disclose very small risk of paralysis
  • Claimant suffered paralysis in one leg
  • Causation only proved if claimant could show they would not have had the operation having known the risk
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15
Q

Chester v Afshar 2004
HELD

A

“But for” test satisfied if claimant can proof on the balance of probabilities they would not have had the operation or deferred it to a later date

Claimant proved it

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16
Q

Bonnington Castings v Wardlow 1956
**FACTS*

A
  • Sued employers in negligence for a respiratory disease
  • Clear that the cause was exposure to dust, only part was due to breach of duty
  • Tortious and non tortious dust worked together
  • Medical evidence = evidence - could not satisfy the but for test
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17
Q

Bonnington Castings v Wardlow 1956
**HELD*

A

HoL deviated for the “but for” test.
Introduced the material contribution test.
This means a “more than negligible” contribution.
Claimant was successful

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18
Q

Material contribution test

A

Court meant a “more than negligible” contribution to the loss

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19
Q

Bailey V Ministry of Defence 2008
FACTS

A
  • Choked on vomit due to weakness causing brain damage
  • Weakness caused by natural progression of claimants condition
  • Negligent lack of care by the defendant
    Medics could not use the “but for” test
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20
Q

Bailey V Ministry of Defence 2008
HELD

A

Cllaim succeeded.
The claimant could prove that the negligent treatment (the breach) made a material (more than negligble) contribution to her brain damage.

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21
Q

Cases where medical science cannot establish the probability that “but for” an act of negligence the injury would not have happened…

A

But can establish that the contribution of the negligent cause was more than negligible, the “but for” test is modified

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22
Q

Sequential cumulative causes

A

Material contribution test applies

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23
Q

Simultaneous cumulative causes

A

Material Contribution Test Applies

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24
Q

Material Increase In Risk Case

A

McGhee v National Coal Board 1973

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25
Q

McGhee v National Coal Board 1973
FACTS

A
  • Claimant contacted dermatitis as a result of exposure to brick dust.
  • Working with brick dust = non tortious
  • Breach = lack of washing facilities at the end of the day = on skin for an extended time
    But for test not satisfied
    Can’t prove cumulative
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26
Q

McGhee v National Coal Board 1973
HELD

A
  • Tortious dust materially increased the risk of contracting dermatitis.
  • Longer dust was on skin - greater the risk of contracting dermatitis
    = materially increased the risk of injury

Only applies in very limited situations as is an easier threshold

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27
Q

Limits of the material increase in risk test

A

Confined to industrial disease cases only where there is scientific uncertainty over cause.

Most widely applied in mesothelioma cases

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28
Q

Fairchild v Glenhaven Funeral Services Ltd 2003
FACTS

A
  • Claimant worked for employers at different times in the 60s all exposing him to asbestos.
  • Unable to determine whether mesothelioma was caused by cumulative or a single exposure.
    Impossible to say which employer
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29
Q

Fairchild v Glenhaven Funeral Services Ltd 2003
HELD

A

HoL applied the material increase in risk test
* Claim succeeded.
* The claimant could show that by exposing him to asbestos, the defendant had materially increased his risk of mesothelioma
Weighed against the argument that people who suffer harm due to the employers’ breach desreve to be compensated.

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30
Q

Limites to the material increase in risk test

A
  • Material increase in risk test is applicable only to industrial disease, single-agency cases.
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31
Q

Single agency

A

Means that there is only one causal agent.

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32
Q

Hotson v East Berkshire Health Authority 1987

A
  • Child fell from a tree and broke his leg.
  • The hospital was negligent in its treatment and the child was left paralysed.
  • Medical evidence indicated that there was 75% - the “but for” test failed.
    Claimant argued loss of chance
  • Lost 25% chance of recovery and therefore should get 25% of losses
    = REJECTED by HoL
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33
Q

Loss of Chance

A

Does not seem to apply to medical negligence cases

Only economic loss/

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34
Q

Allied Maples Group v Simmons & Simmons 1995

A

Claimant lost chance to negotiate a clause as a result of solicitor failure to advise.

Causation successful as proved that there was no real and substantial chance that seller would have agreed to that clause

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35
Q

Wilsher compared with McGhee

A
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36
Q

Exceptions to materially increased risk

A

McGhee or loss of chance

37
Q

Case:
Barnet v Chelsea and Kensington Hospital
(arsenic poisoning)

A

“But for” test: not satisfied.

Negligence made no difference.

38
Q

Law
“But for” test: not satisfied.

Negligence made no difference.

A

Case:
Barnet v Chelsea and Kensington Hospital
(arsenic poisoning)

39
Q

Law
“But for” test: not satisfied.

Could not prove link between negligence and loss

A

Wilsher v AHA
(lack of oxygen

40
Q

Case
Wilsher v AHA
(lack of oxygen)

A

Law
“But for” test: not satisfied.

Could not prove link between negligence and loss

41
Q

Law
Material contribution test

Satisfied - cumulative causes

A

Bonnington Castings v Wardlaw
(dust)

Bailey v Ministry of Defence
(choking on vomit)

42
Q

Case

Bailey v Ministry of Defence
(choking on vomit)

A

Law
Material contribution test

Satisfied - cumulative causes

43
Q

Case
Bonnington Castings v Wardlaw
(dust)

A

Law
Material contribution test

Satisfied - cumulative causes

44
Q

Law

Increase in risk test

Satisfied - single agent
One tortfeasor

A

McGhee v National Coal Board

(dust, dermatitis)

45
Q

Case
McGhee v National Coal Board

(dust, dermatitis)

A

Law

Increase in risk test

Satisfied - single agent
One tortfeasor

46
Q

Law
Increase in risk test

Satified single agent several torfeasors

A

Fairchild v Glenhaven Funeral Serviced

(asbestos, mesothelioma)

47
Q

Loss of chance

Not satisfied - personal injury

A

Hotson v East Berkshire Health Authority

(falling from tree, negligent medical care)

48
Q

Loss of chance test

Satisfied - pure economic loss

A

Allied Maples Group v Simmons & Simmons

solicitor’s negligence, loss of chance to negotiate

49
Q

“But for” test in clinical negligence cases where the breach is a failure to advise on risk

(Satisfied if the claimant can prove that they would not have had the treatment at that time)

A

Chester v Afshar

Small risk of paralysis, would not have had the spinal operation at that time if informed of the paralysis risk

50
Q

Apportionment

A

A calculation to apply once factual causation has been established.

Where there are multiple tortious factors, the courts apportion liability in a practical way

51
Q

Fitzgerald v Land & Patel 1987
FACTS

A

Claimant crossed the road at a pelican crossing when the lights were red. Hit and then run over by another car.
Both defendants equally negligent, impossible to say which of the collisions caused the injuries

52
Q

Fitzgerald v Land & Patel 1987
HELD

A

Each defendant responsible for 25%

50% non recoverable representing own negligence.

53
Q

Mesothelioma under s3 of the Compensation Act 2006

A

Defendants are jointly and severally liable /

Any or all of the negligent employers who exposed the claimant to asbestos will be liable to the claimant for the whole sum of damages.

54
Q

Multiple Sufficient Causes Case

A

Performance Cars v Abraham 1962

55
Q

Performance Cars v Abraham 1962

FACTS

A

A third party negligently collided with Rolls Royce.
Rolls required respray.
Second collison caused similar respray to repair it

56
Q

Performance Cars v Abraham 1962

HELD

A

As the requirement for a respray already existed before the second collision there was effectively no damage arising from the second collision

57
Q

Multiple sufficient causes

Contrasting case law

A

Baker v Willoughby 1970

Jobling v Associated Diaries 1982

58
Q

Baker v Willoughby 1970

FACTS

A
  • Due to degendant’s negligence the claimant suffered a leg injury.
  • Subsequently was shot in a robbery and his injured leg had to be amputated.
  • Robbers not found
59
Q

Baker v Willoughby 1970

HELD

A
  • First defendant should continue to be liable for the orignal injuries, beyond the time of the robbery.
  • The intervening tortfeaser should compensate for any additional losses
60
Q

Jobling v Associated Diaries 1982
FACTS

A
  • Due to defendant’s negligence, claimant injured their back, suffered reduced earnings.
  • Later suffered a further back injury (non-tortious)
61
Q

Jobling v Associated Diaries 1982
HELD

A

Defendant’s liability ceased at the point that the further back injury developed.

Did not have to compensate the claimant for the vicissitudes of life

62
Q

Performance Cars v Abraham - summary

A

Second defendant not liable if they have not caused any additional damage.

63
Q

Summary: Baker v Willoughby

A

**Two tortious events*
* First defendant liable for inital injuries past the point of second event.
* Second defendant (if found) liable for additional leases.

Suggested the courts did this to prevent “manifest injustice”

64
Q

Summary: Jobling v Associated Dairies

A
  • Tort followed by natural event
  • Key difference to baker
  • Defendant liable until natural event.
  • Second event can be novus actus interveniens
65
Q

If no additional damage

A

Defendant will not be liable.

66
Q

Second event is tortious

A
  • First defendant is liable for the original damage past the point of the second event.
  • Second defendant liable for any additional damage.
67
Q

Second event is naturally occurring

A

Defendant is liable for damage only up to the natural event.

68
Q

Factual causation

A

Establishing the link between the breach and the damage.

69
Q

Legal causation

A

Considering whether there are any grounds upon the link should be regarded as having been broken

70
Q

Defendant is not liable for absolutely everything that follows from thier breach.

A

A line has to be drawn and certain subsequent events that occur after the breach may break the chain of causation

71
Q

nova actus interveniens

A

An intervening act that breaks the chain.

72
Q

Types of novus actusinterveniens

A

1) Acts of God or natural events
2) Acts of third parties
3) Acts of the claimant

73
Q

Acts of God or natural events

A

An act of God breaks the chain of causation if exceptional natural event.
* Eg lightning, drowning in a flood, onset of certain disease.

74
Q

Act of God Example Case

A

Carslogie Steamship Co Ltd v Royal Norwegian Government 1952

75
Q

Carslogie Steamship Co Ltd v Royal Norwegian Government 1952
FACTS

A
  • Claimant vessel damaged in collision
  • Defendant admitted liability
  • Repairs not immediate - taken to US for repair
  • Vessel suffered heavy storm damage
  • Initial damage 10 days to fix, storm damage 51
76
Q

Carslogie Steamship Co Ltd v Royal Norwegian Government 1952
HELD

A
  • Defendant liable for damages of the first collision.
  • Storm = novus actus interveniens.
  • Natural Events will not break the chain of causation if could have been forseen.
77
Q

Acts of third parties

A

Courts see this as highly unforseeable (something was very unlikely to happen as a result of the defendant’s negligence)

78
Q

Knightley v Johns 1982
FACTS

A
  • Defendant caused a road traffic accident
  • Police inspector negligently handled traffic flow - officer was then injured.
79
Q

Knightley v Johns 1982
HELD

A
  • First defendant successfully argued that negligent handling broke the chain of causation between his negligence and the officers injury
80
Q

Acts of third parties - Medical treatment

A

Courts are reluctant to hold that this breaks the chain of causation.

medical treatment will not break the chain unless it is so gross and egregious as to be unforeseeable

81
Q

Wright v Cambridge Medical Group 2011
FACTS

A
  • Claimant was a child whom the defendant GP had negligently failed to refer.
  • When eventually referred treatment was negligent
82
Q

Wright v Cambridge Medical Group 2011
HELD

A
  • Hosp had been negligent but not such an egregious event to destroy causal link.
  • Defendant GP was liable to the full extent of the claimant’s loss, regardless of the negligence
83
Q

Acts of the claimant

A

Can break the chain of causation (where the claimant does something which causes them further harm)

84
Q

Acts of the claimant - Legal Test

A
  • Event must be highly unreasonable.
  • Very rare - as would normally be dealt with under the defense of contributory negligence.
  • Claimant’s damages are reduced to reflect the extent to which they contributed to their loss.
85
Q

McKew v Holland & Hammen & Cubitts (Scotland) Ltd 1969
FACTS

A
  • Claimants suffered leg injury due to the defendant’s negligence
  • Impaired mobility
  • Broke his ankle on steps
86
Q

McKew v Holland & Hammen & Cubitts (Scotland) Ltd 1969
HELD

A

Claimant acted very unreasonably and broke the chain of causation between breach and ankle

87
Q

Wieland v Cyril Lord Carpets 1969
FACTS

A
  • Due to defendant’s negligence the claimant wore a neck brace which restricted her ability to use glasses.
  • Fell down some stairs and injured her ankle
88
Q

Wieland v Cyril Lord Carpets 1969
HELD

A
  • Claimant acted reasonably
  • Had help from her son when descending the stairs.
  • Did not break the chain, defendant liable for ankle injury
89
Q

Effect of a novus actus interveniens

A
  • Breaks the chain of causation.
  • Defendant will still be responsible for any loss before the novus actus interveniens
  • Not responsible for any loss after

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