Causation and Remoteness

Question 1

Basic principle of causation

Answer 1

• Generally, in law, a loss will lie where it falls unless there is a reason for transferring responsibility to some one else.
• In relation to negligence this justification is that the claimant can prove that the defendant was at fault and has caused them harm.
• This justification is a matter of policy presented as a rule of law.
• No liability unless damage is caused.
• Issues of causation arise very frequently.

Question 2

Question of the fact in causation

Answer 2

Did the defendants negligence cause the claimants loss?

Question 3

Question of law/ policy in remoteness

Answer 3

Should the defendant be held liable for the damage caused.

Question 4

Simple causation

Answer 4

One alleged cause and one alleged effect.

Question 5

But for test

Answer 5

Would the damage have occurred BUT FOR the defendants actions or omissions? The claimants answer needs to be ‘no’.

Question 6

Barnett v Chelsea

Answer 6

‘Bur for’ test.

Question 7

Consecutive Competing/ independent causes

Answer 7

Where there may be consecutive torts, accidents or acts of nature - in any combination and order.

Question 8

Thin skull rule

Answer 8

Take the victim as they are.

Question 9

Performance cars v Abraham

Answer 9

The Claimant tried to claim for the second incident however it was conceded the Claimant could not recover the same loss twice.

Question 10

Simultaneous Competing/ Independent causes

Answer 10

Generally the claimant must prove their case - that the negligent cause is the cause of the damage. Wilsher.

Question 10

Cumulative causes

Answer 10

• The ‘bur for’ test is needed.
• Industrial diseases involving dust, noise or vibration are the usual example.
• If several successive torts, all liable and apportion loss: Holtby v Brigham & Cowan.
• Is simultaneous in one employment, but partially tortious , the defendant is liable. Bonnington Castings v Wardlaw.
• The defendant in each case materially contributed to the harm.
• The claimant is much better off here, and it is also fair to the defendant.

Question 11

Disapplying ‘but for’ rule, usually dealing with cases with the following characteristics:

Answer 11

• Caused by single noxious agent (often dust/fumes).
• Administered in different ways (successive employments, or under different circumstances in the same employment).
• Clear that the agent has caused the harm.
• Not clear when the harm occurred.
• Not cumulative.
• McGhee v NCB.

Question 12

Mesothelioma cases

Answer 12

• Asbestos has been a known hazard since the 1920’s.
• Requirements of regulation routinely breached.
• Employment often on short term contracts in the construction industry.
• Problems of identifying/ tracing employers/ insurers.
• Fairchild v Glenhaven.
• Conscious rejection of but for on policy/ principle grounds - Lord Bingham
• Barker v Corus - Compensation Act 2006