Causation

Question 1

what is causation? (incl. academic)

Answer 1

• Blackburn - ‘the relation between two events that holds when, given that one occurs, it produces, or brings forth, or determines, or necessitates the second’
• OR more simply - there must be a direct link between D’s negligence/omission and the damage/harm suffered by the claimant

Question 2

what two tests need to be satisfied in order to establish causation?

Answer 2

factual and legal causation

Question 3

what is factual causation? (incl. case)

Answer 3

‘but for’ test - (i) identifies the necessary conditions of a (harmful) occurrence; and (ii) eliminates irrelevant considerations (i.e. Davis v Bunn)

Question 4

what happened in Davis v Bunn?

Answer 4

• C brought an action saying that if D had shouted a warning to him he could’ve avoided the accident
• held to be irrelevant as even if D had shouted, the accident would’ve still occurred so the but for test was not passed

Question 5

what is legal causation? (incl. case)

Answer 5

• concerned with ascription of responsibility for the negligent occurrence
• Stapley v Gypsum Mines (Lord Asquith) - the ‘real’, ‘substantial’, ‘direct’ or ‘effective’ cause(s) of a harmful outcome
• effectively searching for wrongdoers

Question 6

what happens in cases where a supervening event occurs? (incl. 2 cases)

Answer 6

• where the supervening event is tortious, there is no reduction in damages (*Baker v Willoughby)
• BUT where the supervening event is non-tortious and a ‘vicissitude of life’, there is a reduction (Jobling v Associated Dairies)

Question 7

what do the Baker and Jobling cases tell us about causation rulings?

Answer 7

the courts are unafraid to make highly discretionary decisions when it comes to causation

Question 8

just apportionment of harm in causation cases? (incl. case)

Answer 8

Rahman v Arearose Ltd - there must be pragmatic and just apportionment of losses based on the degree of wrongdoing each did.

Question 9

Laws LJ in Rahman (quote + commentary)

Answer 9

• judges seek to fashion ‘a decent and rational system for the compensation of innocent persons who suffer injury by reason of other people’s wrongdoing’
• decency implies principle as it is the extent to which a wrongdoer is culpable, but a pragmatic approach implies policy

Question 10

test for a novus actus interveniens? (incl. case)

Answer 10

The Oropesa - an NAI is something unwarrantable, unreasonable, extraneous or spontaneous; ‘out of a clear blue sky’

Question 11

when will 3rd parties be liable for a tort? (incl. 3 cases)

Answer 11

• Home Office v Dorset Yacht - 3rd party conduct must be ‘very likely to happen’
• Lamb v Camden LBC - ‘a degree of likelihood amounting to almost inevitable’
• Ward v Cannock Chase DC - ‘virtually certain’

Question 12

occasioning harm in causation? (incl. case)

Answer 12

Stansbie v Troman - D held liable for reasonably foreseeable loss. he had occasioned the harm which would otherwise not materialise.

Question 13

what are the key cases in proof of causation? (x4)

Answer 13

• McGhee v National Coal Board
• Wilsher v Essex Area Health Authority
• Fairchild v Glenhaven Funeral Services
• Sienkiewicz v Greif

Question 14

McGhee v National Coal Board

Answer 14

• C exposed to brick dust and contracted dermatitis. D had breached the duty owed to C by failing to provide adequate washing facilities
• at the time, the medical knowledge was unable to help C establish factual causation
• pro-claimant development: causation held to be established as C could show that the breach materially increased the risk to which C was exposed
• the burden of proof is on D to dispute that they were not the cause
• other factors also played a role, including the National Coal Board’s ‘deep pockets’

Question 15

Wilsher v Essex Area health Authority

Answer 15

• pro-defendant return to orthodoxy: causation must be proved on the balance of probabilities (Lord Bridge)
• contrasts with the CA’s decision in which they applied McGhee and found that other factors may have played a role in D’s (a nurse’s) negligence

Question 16

Fairchild v Glenhaven Funeral Services principle and application

Answer 16

• pro-claimant again - in most cases causation shall be established on the balance of probabilities, however, in exceptional cases such as Fairchild, the McGhee approach is applicable to find causation
• because it was thought Fairchild was an exceptional case, the Lords held each employer as jointly and severally liable

Question 17

Fairchild v Glenhaven Funeral Services decision-making process

Answer 17

where D:
a) breaches duty owed to C and brings about
b) a material increase in risk, liability can be imposed on D for
c) the full loss
(vis. notwithstanding that there might have been other causes)

Question 18

Fairchild v Glenhaven Funeral Services on relevant considerations

Answer 18

‘rejecting the claims would have been deeply offensive to instinctive notions of justice’

Question 19

the Fairchild exception in statute

Answer 19

The Compensation Act 2006, s.3 - under the current law any negligent defendant owing a duty of care to C, could, if necessary be ordered to bear 100% liability regardless of the extent of their involvement with C. normally however, under s.3 all Ds will be held jointly and severally liable.

Question 20

Sienkiewicz v Greif

Answer 20

• The ‘Fairchild exception’ applies to cases of mesothelioma involving a single defendant
• There is no requirement for a claimant to show that the defendant’s breach of duty doubled the risk of developing the disease

Question 21

academic commentary on the Fairchild exception

Answer 21

Lord Rodger - ‘it is important that judges should bear in mind that the Fairchild exception … represents what the House of Lords considered to be the proper balance between the interests of claimants and defendants in these cases’

Question 22

academic commentary: traditionalism

Answer 22

• Fleming: proof on the balance of probabilities; direct, anecdotal, particularistic evidence; non-statistical evidence
• probabilistic evidence: relevant to non-traumatic injuries (e.g. injuries arising from exposure to toxic pollution)
• courts: typically uncomfortable with probabilistic evidence

Question 23

alternative approaches: USA

Answer 23

• market share liability - orthodox requirement (proof of causation on the balance of probabilities) waived (Sindell v Abbott Laboratories)
• cancerphobia treated as a form of mental injury (Ayers v Jackson Township)

Question 24

The Dangers of a Pro-Claimant Approach to Proof of Causation

Answer 24

Snell v Farrell (Canadian SC) - the US medical malpractice crisis of the 1970s; inflated insurance premiums (implies floodgates!)

Question 25

academic commentary: the psychology of causation

Answer 25

Patrick Atiyah (The Damages Lottery) identifies judges as exhibiting sympathy to claimants when determining causal questions.