Causation Flashcards
What does factual causation deal with?
Establishing the link between the breach and the damage.
What does legal causation deal with?
Considering whether there are any grounds upon which the link between breach and damage should be regarded as having been broken.
Outline the factual causation ‘but for’ test.
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?
What is the burden of proof for the factual causation test?
Must be proved on the balance of probabilities (more than 50% chance).
In relation to the ‘but for’ test, describe the outcome of Barnett v Chelsea & Kensington Hospital (1969).
D breached their duty of care after failing to examine the C and the C died of arsenic poisoning after drinking poisoned tea.
However, the evidence showed the C would have died even if the D had examined him therefore the claim failed on factual causation.
In relation to the ‘but for’ test, describe the outcome of Wilsher v Essex AHA (1988)
C was unable to prove factual causation using the but for test. Five equally probable causes of C’s blindness acting independently, only one of which was the breach.
C could therefore only prove that there was a 20% chance that the breach caused his loss (not more than 50%).
Does the ‘but for’ test apply where there is a failure to advise on risks associated with surgery?
Yes, where the breach is a failure to advise on risk, the but for test can be satisfied if the C can prove that they would not have had the treatment or would have deferred the treatment had they been told of the risk.
Chester v Afshar (2004): D failed to disclose to C the very small risk of paralysis from surgery which the C later suffered.
If multiple causes operated together to cause the C’s loss, what test will the courts apply?
Material contribution test.
Outline the material contribution test with reference to Bonnington Castings v Wardlaw (1956).
Tortious dust AND non-tortious dust operated together to cause C’s respiratory disease.
But for test failed but court created the material contribution test.
On the balance of probabilities, did D’s breach make a material (more than negligible) contribution to the C’s disease? Yes.
In relation to the material contribution test, describe the outcome of Bailey v MOD (2008).
Due to C’s weakness, she choked on her own vomit causing brain damage. The weakness was caused by progression of her condition (non-tortious) and negligent lack of care by the D (tortious).
The claim succeeded as the C could prove that the negligent lack of care made a material contribution to her brain damage.
Outline the material increase in risk test with reference to McGhee v National Coal Board (1973).
C contracted dermatitis due to exposure to brick dust at work. Part of exposure was tortious and part was non-tortious.
Material increase in risk test was created. On the balance of probabilities, the D’s breach materially increased the risk of dermatitis.
In relation to the material increase in risk test, describe the outcome of Fairchild v Glenhaven Funeral Services (2003).
C was exposed to asbestos by various employers during the 1960s and contracted mesothelioma. The but for and material contribution test failed.
The material increase in risk test succeeded. D, by exposing C to asbestos, had materially increased the risk of him getting mesothelioma.
What cases is the material increase in risk test confined to?
Industrial disease single agency cases only.
In relation to loss of chance, describe the outcome of Hotson v East Berkshire Health Authority (1987).
C fell from a tree and broke his leg. The D was negligent in treatment and the C was left paralysed and the but for test failed as there was a 75% risk that the C would have been paralysed but for the breach.
C argued he had lost a 25% chance of recovery and should be awarded 25% of his losses-argument rejected.
Can loss of chance be argued where the loss is pure economic loss?
Yes, as seen in Allied Maples Group v Simmons & Simmons (1995).
C lost the chance to negotiate a clause in a contract as a result of D’s failure to advise-causation was successful as the C proved there was a real and substantial chance that the seller would have agreed to the clause.
