Causation

Question 1

Causation of ‘actionable damage means what?

Answer 1

It must be a form of damage that is recognised as recoverable in its own right. Eg not mere anxiety and grief. Not enough to suffer injury. Must be sufficiently substantial injury.

Question 2

What is factual causation - cause in fact?

Answer 2

It’s principally approaches through the but for test. The main technique is to ask what would have happened ‘but for’ the breach of duty. There is no need to be the cause; sufficient to be a cause. If the injury would still have happened but for the breach the ‘but for’ test is not passed.

Question 3

What happened and was held in Barnett v Kensington & Chelsea Management Committee (1969)?

Answer 3

The causality officer had indeed been negligent in failing to examine the patients, however ‘but for’ his breach, the death would still have occurred. Therefore, it was to be eliminated as a cause of the death.

Question 4

McWilliams v Sir William Arrol (1962)?

Answer 4

This involved ‘guess work, the employer had been negligent in failing to provide a safety harness. The employee feel to his death, however even if safety equipment had been available, based on the evidence the deceased wouldn’t have a worn it. Failed the but for test and claim did not succeed.

Question 5

What are the two variations of multiple tortfeasors?

Answer 5

The first is joint tortfeasors - joint tortfeasors are liable for the full damage, subject to contribution proceedings
The second is consecutive torts - separate tortfeasors causing separate harm: consecutive torts.

Question 6

How is responsibility divided between consecutive torts?

Answer 6

Each tortfeasor should be liable only for the damage they caused: wholly different from joint tortfeasors. If the claimant was already damaged by D1, D2 pays only for additional harm. Ds responsibility for the initial injury continues after second tort. Otherwise there would be under compensation or excessive liability for D2. Importantly, C must pursue each tortfeasor to achieve full compensation.

Question 7

What happened and was held in Thompson v Smiths Ship Repairers (1984)

Answer 7

Occupational deafness. Looks like one injury but words with each period of exposure. Each employer liable proportionately.

Question 8

What was held in Holtby v Brigham & Cowan (2000)?

Answer 8

This is a case of asbestosis (gets worse with further exposure. CA awarded proportionate damages according to period and intensity of exposure by each employer.

Question 9

What happened and was held in Baker v Willoughby (1979)?

Answer 9

First Tort: C suffered an leg injury in a car accident, 3 years later before the trial regarding the accident, the claimant was the victim of a shooting. Second tort: leg which had been injured by D1 now amputated. D1 then claimed that his liability for the leg injury should cease at the time of the second injury. D1 still liable for the consequences of an injured leg, eg lost earnings. Not liable for the loss of the leg which was casually unrelated.

Question 10

What happened in Jobling v Associated Diaries (1982)?

Answer 10

In 1973, an accident at work caused injury to back, which was somewhat ‘disabling’. In 1976 his back became completely disabled because he developed a condition called ‘myelopathy’. The myelopathy was unconnected with the Cs 1973 accident.

Question 11

What was held in Jobling v Associated Dairies (1982)?

Answer 11

D1 was released from liability for the loss of earnings sustained after this second event. The incapacity would have happened anyway therefore D1 did not cause any further loss of earnings.

Question 12

Can baker and Jobling be reconciled?

Answer 12

They are logical but adapt different logic. Baker divides responsibility between two tortfeasors. You take your victim as you find him or her. Jobling applies causation principles to decide what harm was caused by the defendant. Different principles depending whether second event is a tort or a natural event.

Question 13

What happened in Gray v Thames Trains 2009?

Answer 13

The Ladbrokes Grove Raul crash in 1994. The C sustained minor physical injury but much more serious PTSD. Under the influence of his mental condition, he killed a man. He claimed general damages for his conviction, detention and feelings and loss of earnings until the date of trial and continuing.

Question 14

What was held in Gray v Thanes Trains (2009) UKHL

Answer 14

He committed a criminal offence, but without the D fault, the criminal offence and detention would not have happened (caused by the D’s BoD) the claim was dismissed as he applied Jobling, the consistency principle.

Question 15

The basic principle of tort?

Answer 15

Putting this in numerical/percentage terms, causation is proved if there is a likelihood of greater than 50% that the breach caused the damage.

Question 16

What happened in McGhee v National Coal Board - 1973?

Answer 16

A worker sustained a skin disease caused by contact with brick dust, his employers failed to prove adequate washing facilities at the end of the day worker was unable to prove that it was this extended exposure at the end of the day which had caused his disease. There was clearly a breach of duty as no showers were provided; C cycled home. It could only establish (on breach of probabilities) that Ds breach of duty contributed to the risk of injury not to the injury itself.

Question 17

What was held in McGhee v national coal board (1973)?

Answer 17

Causation was said to be established in the case as D was liable for the dermatitis suffered. HL held the defendant liable. P did not have to establish that the absence of easing facilities was the actual cause it was sufficient to show that D had materially increased the risk of P contracting the disease.

Question 18

What happened in Wilsher v Essex Area Health Authority (1988)?

Answer 18

Negligence in neo-natal care: premature baby subjected to excess oxygen. Baby developed blindness: excess oxygen one of five possible causes. The others non-negligent.

Question 19

What was held Wilsher v Essex Area Health Authority 1988?

Answer 19

HoL distinguished McGhee, in that there had been evidence that the workers skin disease could have been caused by an accumulation of brick dust, to which there was no doubt that the defendants had negligently contributed.

Question 20

What happened in Barker v Corus 2006?

Answer 20

The claimant had been exposed to asbestos in three distinct periods including while he was self-employed hence a period of self-exposure. Issue of appointment is raised.

Question 21

What was held in Barker v Corus (2006)?

Answer 21

The HoL held that liability was several rather than joint and reduced the damages recoverable by 20% on account of the period he was self-employed. House of Lords awards proportionate damages. However after the Section 3 Compensation Act 2006 restores joint and several liability and a responsible person is liable for the whole of the damage caused by the disease, irrespective of whether anyone else has caused exposure. This does not prevent liable parties from seeking contribution from others.

Question 22

What happened in Gregg v Scott?

Answer 22

Doctor failed to diagnose lump under arm as malignant cancer. On a further visit to a different doctor, there was a diagnosis as cancer - claimed lost of recovery. If the lump had been treated at the first stage there was a 42% chance of being cured. However D told him not to worry about it and sent him home and then only 25%

Question 23

What was held in Gregg v Scott?

Answer 23

The claim failed as the likelihood of recovery was not more than 50% at any stage. No causation established.

Question 24

What happened in Chester v Afshar 2005?

Answer 24

The C suffered low back pain. The D: advised her to have the operation but did not warn her of the small risk of her developing the condition even if the operation was performed without negligence. She developed a serious spinal condition.

Question 25

What was held in Chester v Afshar 2005?

Answer 25

By a 3:2 majority in favour of the C. The D should be held liable for the Cs paralysis. The doctor owed her a duty to advice her of the risks of the treatment and give her ability to make an informed choice. If not the doctors duty to inform his P of the risk associated with an operation would become empty.