Causation Flashcards
‘But for’Causation
-starting point in determining questions of factual causation.
In tort it is not enough to show that’s the D’s conduct was the cause of the damage differed by the claimant BUT rather IT IS THE BREACH OF DUTY IF CARE THAT MUST HAVE CAUSED THE RELEVANT DAMAGE.
Causation: two basic questions of causation.
1) Was the defendants breach of duty or other tortious intervention a factual cause of the damage? - would the damage have occurred ‘but for’ the tort?
2) is the damage attributable to the defendants breach of duty?
Barnett v Chelsea and Kensington Hospital Management Committee
3 nightwatchment went to casualty department complaining to the nurses that they had been vomiting for 3 hours.
-they were told to leave and go home to bed.
-5 hours later one of the men died after drinking tea that had been poisoned.
HELD THAT HE WOULD HAVE DIED FROM THE POISONING EVEN IF HE HAD STAYED AT HOSPITAL.
So failed the but for test as it was held that the defendants should not be held liable for consequences, I.e. The criminal intent of lacing tea with arsenic, that they could not have prevented.
McWilliams v Sir William Arroll Co Ltd 1962
Appellant was the widow of a steel erector who had been working at a height of 70ft when he fell and was fatally injured.
- no safety belt had been provided, the appellant claimed both for breach of common law duties of care and breach of duty of section 26(2) Factories Act 1937.
- the respondents argued successfully that be cause the deceased would not have worn a belt as they showed evidence that if one had been provided he would not have worn it, even if it had been provided their breaches of duty had not caused his death.
Baker v Willoughby (1970): but for causation in concurrent and consecutive torts
Plaintiff suffered injury to his leg in a road traffic accident causes by the tort of the D.
-shortly before the tort action was heard, he was shot in the same leg during an armed robbery and the leg had to be amputated.
-case of consecutive torts as although there was no chance of fogging after the second tortfeasor.
House of Lords held that the first tortfeasor should pay for the damage he had caused notwithstanding the intervention of the second incident.
Jobling v Associated Dairies 1982
Plaintiff suffered a back injury at work.
He later developed a disease spot which he had a predisposition.
House of Lords held that the disease had to be taken into account when assessing damages as the award for loss of earnings must be considered in relation to the fact that the disease would have reduced the years of employment.
Although makes sense in terms of compensation, not wanting to compensate for something that was going to happen anyway, how can it be reconciled with Baker.
Gray v Thames Trains 2009
Claimant had sustained minor physical injuries and serious psychiatric injury in Ladbroke rail crash caused by the appellants negligence.
Whilst under the influence of a psychiatric bout the claimant killed a man and was convicted of manslaughter.
Appellants denied that they were liable for the manslaughter.
- the supervening act, the criminal offence and detention, would not have come about without the fault of the defendants. - caused by the D’s breach of duty?
was held that the consistency principles requires that of criminal law treats the claimant as responsible he cannot then seek compensation for the same act from the defendant.
Cause in Law - remoteness/scope of liability.
Remoteness of damage represents the law’s attempt to place limits on liability for damage for which the defendants negligence has factually been a cause but for which, as a matter of legal authority, no liability should attach.
Re Polemis and Furness Withy 1921-
Re Polemis held that a D who is shown to have been at fault is liable for all DIRECT consequences of that fault, even if the resulting damage in unforeseeable.
So how is foreseeability to be judged?
Privy Council adopted a test of reasonable FORESIGHT judged from the point of view of a reasonable person IN THE POSITION OF THE DEFENDANT AT THE TIME OF THE BREACH.
Development of the wagon mound remoteness/ foreseeability doctrine:
Smith v Leech Brain and Co Ltd 1962
Plaintiff was widow of a steel galvaniser employed by the D, part of his job was lowering articles by means if an overhead crane into molten metal- he suffered a molten burn in his lower lip, a consequence of the insufficient protection given to him by his employer.
The rule in Re Polemis was applied being a decision by the House of Lords it was more powerful than the merely persuasive authority of the Privy Council authority in Wagon Mound No1.
Held that Wagon Mound made no difference to cases such as this as the initial burn was of a readily foreseeable type and subsequent cancer was treated merely as extending the amount of harm suffered.
Wagon Mound and the thin skull rule.
Wagon Mound did not change the ‘take the claimant as you find them rule’ but rather allows the defendant to be liable for more extensive damage than he might have foreseen.
-it does not allow defendants to be liable if, without the vulnerability, no damage would be foreseeable at all.
Wagon Mound does not require the extent of the damage of the damage to be foreseeable.
The Leisbosch Dredger- lack of funds and Wagon Mound No 1.
Plaintiffs ship sank as a result of the defendants negligence.
Plaintiffs were short of funds so had to hire a dredger at great loss to them.
Claimed for the whole of their financial loss but the House of Lords held that nothing attributable to the plaintiffs own lack of funds could be recovered.
-the think skull rule does not apply to Lack of funds, but rather it is causal.
Overruled by Langdon v O’Connor.
The type of kind of damage:
Hughes v Lord Advocate 1963
Manhole in a city street was left open and unguarded.
An 8 year old boy entered the tent and a subsequent explosion left him severely burnt.
On appeal to the House of Lords it was held that the workmen breached a duty of care owed to the boy and that the damage was reasonably foreseeable.
The decision to allow recovery in this case, in which a known source if danger behaves in an unforeseeable way and thereby creates damage which is more extensive that might have been expected, is a considerable relaxation of the strictures of Wagon Mound.
Intervening Acts post Wagon Mound and move away from causal language.
Check revision book
