Causation

Question 1

What is factual causation?

Answer 1

A question of law - on the balance of probabilities, was it more likely than not that D’s negligence caused C’s injury

Alternatively, but for the defendant’s actions, would C have escaped harm?)

Question 2

Barnett v Chelsea and Kensington Hospital Management Committee

Answer 2

Established the ‘but for test’

Facts:
D (a dr) didn’t examine C. C hard arsenic poisoning and died. D admitted negligence but he wasn’t liable for his death because the antidote would not have worked in time even if he had treated him

Question 3

The but for test does not apply when…

Answer 3

• there are multiple causes of C’s harm
• D’s negligence is a material contribution to harm
• D’s negligence increases the risk of harm
• the negligence of multiple D’s is attributable to C’s harm/if it would lead to unjust results
• it will lead to unjust results caused by a failure to inform

Question 4

What is meant by ‘The but for test won’t apply if there are multiple causes of C’s harm?’

Answer 4

In scenarios where there are multiple causes of harm each possibility must be given a %, it needs to be more than 50% to satisfy the test. Otherwise, D will not be liable (judges decipher the % based on evidence)

Question 5

Wilsher v Essex Area Health Authority

Answer 5

multiple causes of harm meaning the but for test cannot apply:
Dr gave a baby too much oxygen. The baby developed a medical condition. There were 5 potential causes, each had a 20% chance of causing the condition. Therefore, the but for test couldn’t be applied and D was not liable.

Question 6

Problems with ‘multiple causes of harm’

Answer 6

People can easily escape liability.

People argue this is good as people shouldn’t be liable if it cannot be 100% proven

Question 7

Bonnington Casting Ltd v Wardlaw

Answer 7

Material contribution to harm:
C developed a condition from dust inhalation. This was part of the job, was made worse by D not ventilating the factory properly. On the balance of probabilities it couldn’t be proven if it was the innocent or guilty dust

HELD: the HL found that because cumulatively the innocent and guilty dust were more likely to cause harm, it was enough to show that D’s harm was a material contribution to the disease.

• done for policy reasons to ensure employers conduct themselves properly

Question 8

McGhee v National Coal Board

Answer 8

D’s negligence increases the risk of harm:

C developed dermatitis after brick dust at work. His exposure to it was prolonged because there was no where to wash his hands. It couldn’t be proved ‘but for d’s actions’. This also is not a cumulative illness unlike Bonnington,

However, it could be proved the longer the dust was on the skin, the greater the risk of developing dermatitis. HL ruled the increased risk of C developing the condition was enough to satisfy causation.

Question 9

Fairchild v Glenhaven Funeral Services

Answer 9

but for test is not used if their are multiple D’s attributable to C’s harm:

C was negligently exposed by 3 employers to asbestos. Agreed it could have been due to a single exposure, but couldn’t determine which one.

HL said a strict application of but for would leave to unfair results when one D definitely caused the harm. Causation was established and the D’s were joint and severally liable

Question 10

Chester v Afshar

Answer 10

D was advised to have surgery but was not told of the risks. Her condition worsened and she sued D for being negligent in his failure to inform her of the risks. HL agreed he had a duty to warn her

causation established

Question 11

Who is liable for D’s harm, the 1st defendant or the third party?

Answer 11

Usually the original D

Question 12

Baker v Willoughby

Answer 12

C suffered injury in a car accident caused by D. He was later shot in the same leg by a third party.

HL held D was liable, the original negligence continued. (robbers were never caught they were worried it would lead to a gap in damages)

Question 13

What is legal causation?

Answer 13

A question of fact

1) was the harm too remote from the damages?
2) Was there any subsequent events to break the chain of causation?

Question 14

Wagon Mound (1)

Answer 14

Illustrates that a ‘reasonable person’ must be able to predict the possible consequence of the negligent act

(oil leaked from a ship on the water, spread to a wharf, where a ship was being worked on, sparks ignited it and damaged the boat and wharf)

Question 15

Hughes v Lord Advocate

Answer 15

D negligently left a man cover open. A child picked up a lamp and fell into the whole causing an explosion causing burns.

HELD: it was reasonably foreseeable the type of damage would be burns, therefore it did not matter how they arose
(Note policy driven - shows sympathy to children and encourage maintenance workers to be more careful)

Question 16

What rule applies to legal causation?

Answer 16

The thin skull rule - ‘take the victim as you find them’

Question 17

Smith v Leech Brain & Co

Answer 17

C was burnt on the lip because of D’s negligent actions. C had a pre-cancerous condition which became cancerous because of the burn and he eventually died. HL held as long as the physical injury was foreseeable, D was liable for the end result.

Question 18

What may break the chain of causation?

Answer 18

Intervening acts (novus actus interveniens)
Acts of C's
Natural intervening acts

Question 19

Weld-Blundell v Stephens

Answer 19

Deliberate acts, such as crimes can be a novus actus interveniens (this opposes Baker - that was probably more policy driven)

Question 20

Rouse v Squires

Answer 20

Novus actus interveniens example (don’t like this one that much)
2 lorries stopped to assist, a fourth one negligently crashed into the third lorry killing the driver. The Q for the courts was which negligent driver was at fault, did the actions of the 4th driver break the chain or causation? CA held it did not break the chain of causation (but both drivers were liable)

Both drivers can be liable and court can order them to both pay damages

Question 21

McKew v Holland and Hannen and Cubitts Ltd

Answer 21

Acts of claimants breaking the chain of causation:
C suffered a leg injury at work due to D’s negligence. He was climbing some stairs and his leg buckled, to avoid hitting his head he threw himself forward and broke his ankle. C argued D should be liable for damages as it was an extension of the original injury.

HL rejected this saying C negligently threw themselves down the stairs, breaking the chain of causation.

Question 22

Carslogie Steamship Co Ltd v Royal Norwegian Government

Answer 22

D crashed into C’s ship resulting in repairs. It was admitted that C was to blame. Temporary repairs were made and would be completed in the US, on the voyage the ship sustained storm damage. HL held the storm broke the chain of causation.