CAUSATION & ACTIONABILITY Flashcards
How do we know when X causes y?
When it wouldn’t have happened without the action taking place.
2 types of causation?
1) when does a breach cause loss? (factual)
- when the loss would not have occurred ‘but for’ the breach.
- when the breach materially contributes to the loss
- when the breach materially increases the risk of loss
- when there is an unbroken chain of causation
2) when is a loss actionable? (legal)
- when the loss is not too remote a consequence of breach (must be predictable)
- when the harm is a type of harm that the duty of care protects against
- when the public interest does not prevent a successful claim
- when the claimant is not expected to avoid the loss
The ‘but for’ test?
We generally say that a breach caused the loss where the loss would not have occurred ‘but for’ the D’s breach of a duty of care.
BARNETT V CHELSEA & KENSINGTON HOSPITAL COMMITTEE =
Outcome would have been the same - even if doctor had diagnosed he still would have died; ‘but for’ test NOT satisfied.
- ‘but for’ D’s actions (breach of duty), the loss would not have occurred.
- Claimant must establish on balance of probabilities (over 50%) that D’s breach caused the harm.
WILSHER V ESSEX AREA =
Doctor negligent in monitoring baby - baby administered too much oxygen on numerous occasions and developed a condition caused by too much oxygen in the blood - prima facie (arguable) case that doctor caused this - other potential causes - only 20% chance doctor caused this; less than 50% so the test fails.
LOSS OF CHANCE OF RECOVERY? (cases)
‘But for’ test applied in medical cases where the claim is based on a reduction in the chance of recovery.
HOTSON V EAST BERKSHIRE HEALTH AUTHORITY=
Boy fell from tree and injured hip, doctor failed to notice damage to blood vessels, boy developed paralysis, if it had been found earlier; 25% chance it could’ve been prevented - still 75% chance it would have developed; claim failed as loss of chance of recovery only 25%.
GREGG V SCOTT =
Failed to find it was a cancerous lump, treatment delayed by 9 months, 25/100 would survive if treated after 1 year; 58% would die even with early treatment, concluded 42% chance of being cured initially - had reduced to 25% due to delay - never had more than 50% chance of survival so claim rejected.
Divisible/cumulative harm?
Causation will be established if the breach made a material contribution to the harm i.e it would not have been as bad without the breach.
Divisible harm = type of harm which means each of the actions have made it worse e.g lost some money because of something and more because of another - lots of kicking on the ground, internal injuries are getting worse and worse.
BONNINGTON CASTINGS V WARDLAW =
C couldn’t do job without inhaling some sort of dust - had consented - employed didnt have system to ventilate factory leading to more dust - some dust innocent, some illegal. Lung condition is cumulative harm as it is a progressive disease - ‘but for’ the legal dust being present, would D have developed this anyway> All dust together that caused the condition - couldn’t say which parts were innocent and illegal so employer was liable.
Extent of liability? (cases)
JOBLING V ASSOCIATED DAIRIES LTD =
injured back as a result of D’s negligence - earning capacity reduced - developed unrelated back condition meaning couldnt work at all - even if the employer hadn’t been negligent, the back condition would have occurred anyway, but not as soon as it did. Employer only liable for up until the back disease would have occurred anyway -
- May only be liable for harm suffered before the inevitable onset of an existing condition.
HOTBY V BRIGHAM & COWAN =
- may only be liable for extent of contribution to a cumulative/divisible harm. Liability is based on making a ‘material contribution’ to the harm.
Indivisible harm?
= Lots of things that have happened to this person, but only one of them causes the harm e.g a broken nose.
- claimant may be able to claim if the breach materially increased the risk of harm. Sometimes when indivisible, will apply the material contribution test.
MCGHEE V NATIONAL COAL BOARD =
skin condition as a result of coal dust at work, some exposure is inevitable but innocent/guilty dust due to D’s negligence - skin condition results as single exposure not a build up - D’s negligence materially increased the risk of developing the condition. Claim successful.
Exception in Mesothelioma cases:
FAIRCHILD =
Multiple claims exposed to something - negligence established - series of different exposues - claimant had worked for number of employers - single exposure caused this condition - not possible to tell which employer. HOL said unjust to say there can be no claim - implied material increase test - ‘but for’ D’s negligence, would there not have been an increased risk of harm?
BARKER V CORUS =
Period of self-exposure - not all due to employer - applying fairchild, D could be liable - some self exposure and some employer; increase of risk - only liable for amount of risk/level of exposure - damages apportioned between d’s.
COMPENSATION ACT 2006 S3=
Reverses position in Barker so that each D is liable for whole sum.
Single Wrongful exposure case?
SIENKIEWICZ V GRIEF LTD =
claimant died from m-disease, worked in factory for years, entered part infested with gas, D argued that Fairchild should not apply when only one employer - court had to decide whether to extend to single wrongful exposure cases - it was applied.
Failure to inform patients of risk of treatment?
CHESTER V AFSHAR =
Had back operation, came away with more severe back injury, doctor had not been negligent in procedure but failed to inform patient of risk - court couldn’t apply but for test - but patient probably would not have had operation - risk could’ve been reduced.
^ necessary to allow claims for failure to inform risks of medical treatment in order to give effect to duty of doctors to ensure patients are providing informed consent.
Breaking chain of causation?
Natural events:
CARSLOGIE STEAMSHIP V ROYAL NORWEIGAN GOV =
collision between 2 ships - damage to 1 - D negligent and responsible - some repairs done in england, ship sailed to USA to be replaired properly - claim was for damage from collision, storm at sea caused damage - HOL said storm was intervening act - D not responsible for damage caused by storm.
Acts of a third party:
THE OROPESA =
collision between 2 ships, 1 so damaged that captain thought it would sink, abandoned ship to get to other, sea was rough which made collision worse and lifeboat fell - 9 drowned - case brought by relatives - did captains decision break the chain? if captain had not abandoned, ship would have sank anyway - he did not break the chain of causation.
KNIGHTLY V JOHNS =
D crashed in tunnel due to reckless driving, traffic build up, police came and forgot to close tunnel, ordered someone to drive against traffic, as he did- crashed into motorbike, court held; police had broken the chain of causation - had been negligent and his decision to send him against traffic was enough to break the chain - D was not liable to police officer who had crashed - claimant could sue sergeant.
DORSET YACHT CO V HOME OFFICE =
Owners of yachts sued home office for negligence as they were responsible for damage caused - DoC may exist as home office assumed responsibility for young boys - boys had not broken the chain of causation.
Claimants own actions:
MCKEW V HOLLAND =
C suffered injury at work to his leg - caused by negligence of employer - claimant had to inspect flat, went downstairs without handrail, injury flared him so hurled himself down stairs to avoid injury but broke his ankle - could have been avoided - his actions broke the chain.
Contrasts with…
REEVES V COMMISSIONER OF POLICE FOR MET =
claimant on suicide watch in custody - police told to keep an eye - committed suicided - did c’s decision to commit suicide break the chain? the police had duty to prevent suicide, not reasonable for courts to hold break in chain - police were liable.
Remoteness of loss?
The further away you get from original breach of duty, it is less and less likely that the courts will say the loss is a consequence of that breach.
Was the damage reasonably foreseeable?
Jolly v Sutton LBC = You don’t have to foresee that there would be a particular injury, you just need to foresee injury would have resulted.
Forseeability of type of harm?
OVERSEAS TANKISHIP V MORTS (WAGON MOUND 2) =
D wasn’t liable for full extent of damage - tankship full of oil and due to negligence of crew, oil started to leak into sydney harbour, oil seeped through into a wharf, considerable fire damage that damage wharf and equipment - court said the crew could not have reasonably foreseen that someone would have been welding in the wharf and it would have reached it - not liable.
contrasts with…
HUGHES V LORD ADVOCATE =
Harm was reasonably foreseeable - 8 year old boy saw tent in middle of pavement, lost his balance and fell down manhole with an oil lamp which exploded and caused severe burns - the court said if you’re going to leave it unattended, someone will get injured - however they get injured is irrelevant - type of harm foreseen, not extent - some sort could be foreseen.
‘Eggshell skull’ rule?
‘take your victim as you find them’
Smith v Leech Brain & Co =
claimant had already a position towards developing cancer, D did not know this but C got burnt as a consequence of D actions - wouldn’t have been severe but due to C’s position, he developed cancer - foreseeable you would get injured when burnt - successful claim.
Robinson v post office =
‘take them as you find them’
