Causation

Question 1

What is causation?

Answer 1

D’s breach must be the cause of the C’s loss.

Question 2

What are the two elements of causation?

Answer 2

Factual causation and legal causation.

Question 3

Is it either factual or legal causation, or both that need to be established?

Answer 3

Both

Question 4

What’s the ‘but for’ test loosely?

Answer 4

‘but for’ the defendant’s breach of duty the claimant would not have suffered the loss at that time and in that way (ie were it not for the defendant’s breach, the claimant would not have suffered that loss) (Cork v Kirby Maclean Ltd [1952]).

Question 5

Three types of novus actus events?

Answer 5

1. Acts of Gods or natural events
2. Acts of third parties
3. Acts of the claimant

Question 6

What’s the difference between factual and legal causation?

Answer 6

Factual causation deals with establishing the link between the breach and the damage, whereas legal causation involves considering whether there are any grounds upon which the link should be regarded as having been broken.

Question 7

Case example of ‘but for’ test not being satisfied? (hospital…tea)

Answer 7

Barnett v Chelsea and Kensington Hospital [1969]: patient died of arsenic poisoning after drinking tea; doctor failed to carry out proper examination. However; evidence showed he would have died even if doctor had examined him. But for test not satisfied.

Question 8

What does the claimant need to prove re. the but for test?

Answer 8

The claimant only needs to prove its case, including the ‘but for’ test, on the balance of probabilities: ie that there is a more than 50 per cent chance that the defendant’s breach caused their loss. So a small chance that the accident might have happened anyway does not mean that the claim will fail.

Question 9

KEY case example for but for test not being satisfied? (blindness)

Answer 9

Wilsher v Essex AHA [1988]
Claimant had been born prematurely. He suffered a condition that caused him to go blind. There was evidence that his blindness could have been caused by any of five equally probable different factors, only one of which was tortious (ie an excess of oxygen given incorrectly).
Claimed failed - 20% chance that breach caused loss.

Question 10

If the ‘but for’ test cannot be satisfied, can factual causation be established?

Answer 10

Yes - in exceptional circumstances; examples;
Cumulative causes
Increase in risk tests
Loss of chance
Apportionment
Multiple sufficient causes

Question 11

What’s the facts of the key case Bonnington Castings v Wardlaw [1956]?

Answer 11

Dust at work - pneumoconiosis disease.
Only part of the breach caused disease - some natural consequence of work.
Here tortious and non-tortious operated together.
To satisfy ‘but for’ test, would need to be able to say ‘but for’ the tortious dust, the claimant would not have suffered from the disease.
Claimant unable to show - simply not known.
Key issue: both factors contributed to the disease…

Question 12

What did the HoL do in the key Bonnington case?

Answer 12

Deviated away from the ‘but for’ test - material contribution test.

Question 13

What’s the case that shows material contribution in clinical negligence context? Facts?

Answer 13

Bailey v Ministry of Defence [2008]
C suffered brain damage. Severely ill in hospital, choked on her own damage causing brain damage. Choked on vomit was due to 2 potential causes leading to weak lungs 1) natural progression of condition 2) negligent lack of care.
Both worked together. Bonnington applied to find material contribution.
See also Dr Sido John v Central Manchester and Manchester Children’s University Hospitals NHS Foundation Trust [2016]: brain injury. Case confirmed that material contribution test applies to sequential cumulative causes (one after another) as well as spontaneous cumulative causes (same time)

Question 14

What are the facts of McGhee v National Coal Board [1973]?

Answer 14

Dermatitis brick dust case.
Brick dust no breach, but non adequate washing stations were a breach.
Whilst would not have contracted dermatitis but for the brick dust, experts could not say with certainty that it caused it. But for not satisfied. Medical evidence could not establish that dermatitis was cumulative.
However, whilst could not be shown that tortious exposure materially contributed to condition, could be shown that tortious exposure materially contributed to RISK (medical evidence showed longer dust on skin, etc…)

Question 15

What’s the relevance of the key case Fairchild v Glenhaven Funeral Services Ltd [2003]?

Answer 15

Asbestos case:
C worked for several employees in 1960s - all exposed to asbestos.
Developed mesothelioma (lung cancer) linked to asbestos 25 years later.
Evidence could not show whether caused by cumulative exposure or single exposure.
Judges had dilemma in choosing whether to apply Wilsher ‘but for’ approach or increase in risk approach in McGhee.
HoL concluded that to achieve fairness and justice the ‘but for’ test could be departed from. Held material contribution re. risk; D liable.

Question 16

What was the problem and solution in Fairchild?

Answer 16

It was not certain which one of the employers cause the mesothelioma.
Solution: they all contributed to the risk.

Question 17

What are limits to material increase in risk test?

Answer 17

Think about whether there’s one causal agent, or more than one.
Also consider if all employers/defendants have committed tortious act… compare Wilsher and Fairchild.

Question 18

Can the material contribution test be applied to all cases?

Answer 18

No - at present test seems to be confined to mesothelioma and lung cancer cases caused by asbestos.
Only applicable to industrial disease/material single agency cases.

Question 19

What is the loss of chance argument? Case?

Answer 19

Case: Hotson v East Berkshire Health Authority [1987]
Child fell from a tree and broke his leg. Hospital negligent in treatment and child left paralysed. Medical evidence showed 75% risk that broken leg would have left C paralysed even if treatment was perfect. But for test failed - 25% chance breach caused paralyses.
C tried to argue loss of chance - i.e. 25% lost due to negligence and should be awarded 25% damages. HoL rejected; causation not based on loss of chance.

Question 20

Is the loss of chance argument ever applicable?

Answer 20

Yes rarely; pure economic loss cases. Allied Maples Group v Simmons & Simmons [1995] 1 WLR 1602 (CA) and Spring v Guardian Assurance Plc [1995].

Question 21

What’s apportionment? When is it relevant?

Answer 21

based on apportioning liability between the defendants in a way that produces a practical result, providing compensation to the claimant while recognising the respective fault of the defendants.

Question 22

Key cases for apportionment?

Answer 22

Fitzgerald v Lane & Patel [1987]:
C crossing pelican crossing. Hit by 2 cars.
Each driver liable 50%. Reduced by 50% each due to C’s own contributory negligence. 25% losses each.
Barker v Corus UK Ltd [2006]:
In the context of Fairchild mesothelioma claims. Reversed re. Compensation Act 2006 claims.

Question 23

Case re. factual causation in clinical negligence where breach is failure to advise on risks?

Answer 23

Chester v Afshar [2004]:
Failure to advise on 1-2% risk of paralyses after spinal operation.
Court held factual causation established as ‘but for’ test was satisfied on the balance of probabilities since the claimant would not have had the operation at that time had she been informed of the 1-2% chance of paralysis. Chance of it occurring another time very small as unlikely to consent to it another time - relaxed approach by the courts.
See also Montgomery and Correia.

Question 24

What happens where damage is sustained by the claimant as a result of the defendant’s negligence and then, subsequently, (often some time later but before trial) a second event occurs which causes exactly the same damage, or worsens the damage already caused?

Answer 24

Performance Cars v Abraham [1962] 1 QB 33.
A third party negligently collided with the claimant’s Rolls Royce. The Rolls Royce required a respray of the whole car to remedy it. Two weeks later, a second collision between the same Rolls Royce and a different car, driven by the defendant, caused similar damage which also required a respray to repair it. The Court of Appeal concluded that, as the requirement for a respray already existed before the second collision, there was effectively no damage arising from the second collision.

Question 25

Other examples of multiple sufficient causes cases?

Answer 25

Baker v Willoughby [1970]
- 1 leg injury, then 2 leg injury during robbery (needed to be amputated.
- Robbers could not be found so 1st tortfeasor still liable.
Jobling v Associated Dairies [1982]
- Back injury at work by D 1. Reduced injury.
- Further back injury. Stop work.
- D 1 still liable for earnings pat point of unrelated back disease? No. Liability ceased. Did not have to compensate for the ‘vicissitudes of life’.

Question 26

Three types of intervening/novus actus events to consider

Answer 26

Acts of God/natural events
Acts of third parties
Acts of the claimant

Question 27

What does legal causation deal with?

Answer 27

It considers whether there are any grounds upon which the link should be regarded as having been broken - i.e. if subsequent events that occur after the breach may break the chain of causation

Question 28

What sort of Act of God would break the chain of causation? Case example? (steamship)

Answer 28

Natural events such as being struck by lightning, drowning in a flood, onset of disease etc.
Carslogie Steamship Co Ltd v Royal Norwegian Government [1952]: C’s vessel damaged by D collision, not repaired immediately, on way to US for repair hit storm. Initial repair took 10 days to fix, storm damage 51 days. D liable for first repair. Second novus actus.

Question 29

Will natural events break the chain if they could have been foreseen?

Answer 29

No - if they could have been foreseen and the defendant should have taken them into account as events that were likely to happen.

Question 30

How can an act of a third party break the chain? Key case example? (police car)

Answer 30

If it was highly unforeseeable (something that was very unlikely to happen as a result of the defendant’s negligence).
Knightley v Johns [1982]: 1st D caused road accident. Police officer negligently handled traffic control. Diff police officer drove wrong way down tunnel as a result and died. This broke chain of causation; C not liable for death but responsible up until policeman drove wrong way down tunnel.

Question 31

If the third party has acted instinctively (heat of the moment) will this break the chain? Case?

Answer 31

No break - Scott v Shephard (1773)

Question 32

Can medical treatments break the chain of causation? Case?

Answer 32

No - courts are reluctant. When a defendant causes injury, he takes the risk that the claimant may not respond well to medical treatment or that the medical treatment may not be perfect. The medical treatment will not break the chain unless it is so gross and egregious as to be unforeseeable.
Robinson v The Post Office [1974] - anti-tetanus injection - allergic reaction - did not break chain as not ‘palpably wrong’ and would have done it anyway.

Question 33

What’s the legal test for acts of the claimant breaking the chain of causation?

Answer 33

The act must be highly unreasonable (more than mere unreasonable conduct) - this is rare, and would normally be dealt with under contributory negligence to reduce damages.

Question 34

What’s a case example where acts of the claimant broke the chain and a comparable case where it didn’t?

Answer 34

McKew v Holland & Hanmen & Cubitts (Scotland) Ltd [1969]: injured leg at work, stiff leg. Went to view flat, jumped down stairs and leg buckled - broke ankle - argued D should be liable for broken ankle, HoL rejected; had acted very unreasonably, broke chain.
Wieland v Cyril Lord Carpets [1969]:
Had to wear neck brace - she couldn’t bear glasses as a result - fell down stairs, injured ankle. Did not break chain - was careful, had help on stairs. D liable for ankle injury.

Question 35

In acts of claimant in legal causation, where’s the line in halting liability?

Answer 35

Based on the concept of fairness: see Spencer v Winncanton Holdings Ltd [2009] prosthetic leg.

Question 36

Acts of claimant sterilisation/wrongful life claims permitted?

Answer 36

Have been - but unlikely now.
Emeh v Kensington and Chelsea Health Authority [1985]; sterilised but fell pregnant. Refusal to have abortion did NOT break chain.
Severely restricted now following McFarlane v Tayside Health Authority.

Question 37

Does suicide break the chain re. acts of claimant?

Answer 37

No - see Reeves v MPC (prisoner) and Corr v IBC Vehicles [2008].
Court held suicide is not voluntary.

Question 38

When will acts of a third party break the chain?

Answer 38

When they’re highly unforeseeable i.e. something very unlikely to happen as a result of D’s breach.