Causation

Question 1

Factual Causation

Answer 1

On balance of probabilities there must be proof that the breach of duty caused the harm. This is used in order to assess liability as if it can’t be proved then the individual who breached did not cause the harm.

Question 2

But For Test

Answer 2

But for the actions of the individual the person would not have been harmed. Yet this has two issues: Over-determination problem two people harm same time can’t decide which, or Attribution problem can’t decide who caused the harm.

Question 3

Barnett v Chelsea and Kensington Hospital

Answer 3

Even though there was a breach in duty, it did not matter as nothing would have stopped their deaths

Question 4

Bolitho v City and Hackney Area HA

Answer 4

Being put in an incubator issue. Again unlikely they would have actually done the incubation process as it is considered more dangerous

Question 5

McWilliams v Sir William Arrol

Answer 5

Safety harness not provided, yet didn’t wear anyway. Company couldn’t be liable as he choose not to wear them

Question 6

Material Contribution - Wardlaw v Bennington Castings Ltd

Answer 6

Dust particles, which lead to a change on whether there is a material contribution to the injury.

Question 7

Material Contribution and material increase - McGhee v NCB

Answer 7

Evident disease was caused but not at which point, expert only willing to say it materially increased the likelihood. This now forms part of the test.

Question 8

Material Contribution and Material Increase new doctrine or exception?

Answer 8

Exception as Barker v Corus UK Ltd - Used to prove there had been material contribution
Kay’s Tutor v Ayrshire and Arran Health Board - Penicillin overdose apparently lead to deafness but it didn’t.
Wilsher v Essex Area Health Authority - Potentially 5 causes, McGhee wasn’t used either so did not lay down new principle

Question 9

Fairchild v Glenhaven Funeral Services

Answer 9

Asbestos particles, 2 employers exposed them to it no way to identify which one did. There is a test:
1) Duty intended to protect employee against risk of disease
2) Compensation for injury related to that breach
3) More exposure, more risk
4) Medical Science can’t prove which one caused it
5) Has contracted said disease should have been protected against
Compensation Act 2003 S3(1)

Question 10

Clarifications of Fairchild Exception

Answer 10

Victim Negligence - Barker v Corus Ltd - Self-employed, but company was held liable
One Negligent Employer - Sienkiewicz v Greif - Mother died of cancer, but employed somewhere with asbestos yet nothing more than normal exposure, yet still could rely on fairchild

Question 11

Legal Causation

Answer 11

Breach of duty must be legal cause of the pursuer’s harm. Need to find causing cause of harm. (Direct) Issue with novus actus intervenies as they shift the liability, which can happen due to victim’s own actions, external event or conduct of a third party.
Oropesa - Ships collided then send back men who then died. Not liable for death as wasn’t unreasonable to send them back when ship upright. Needs to be a new cause
Sayers v Harlow Urban District Council - Toilet trapped then jumps up breaks ankle not a NAI
Mckew v Holland & Hannen & Cubbits - Leg pain, and jump down several steps, classed as NAI acted unreasonably
Sabri-Tabriz v Lothian Health Board - Steroids not to get pregnant then had abortion and needed surgery, shouldn’t have taken risk
Core v IBC Vehicles - Suicide case, it wasn’t NAI