Causation and Remoteness

Question 1

What is the test used for factual causation?

Answer 1

The “but for” test.

But for the defendant’s breach of duty, would the harm have occurred? If yes, factual causation is established.

Remember: this on the balance of probabilities: more than 50% likely on the balance of probabilities that but for D’s negligence, the harm would have occurred.

This means that, if it more likely the harm would have occurred anyway, no causation.

Question 2

When is the “material contribution” test used to establish factual causation?

Answer 2

1. Where C has had cumulative exposure to toxins (such as dust or gas) and such exposure over time has cumulatively damaged C’s health and caused the injury (such as asbestosis - not mesothelioma)
2. Where C has a pre-existing condition, emergency or injury (such as an appendix issue) and a series of medically negligent acts by D (being a hospital/doctor) materially contributes to injury

Question 3

What is the “material contribution” test?

Answer 3

D’s negligence must have made a material contribution (meaning more than negligible) on the balance of probabilities) to the injury.

Test operates when C is exposed to toxins through innocent means. C is awarded damaged proportionally: up to the amount D is liable to the injury.

Question 4

When is the “material increase in risk” test used to establish factual causation?

Answer 4

1. Where C suffers a non-cumulative injury (not mesothelioma) because of a one-off exposure to a toxic material, and C has worked for one or several employers. Assess whether each D materially increased the risk of exposure to the toxin on the balance of probabilities (C must show that it is more than 50% likely D materially contributed to the risk). If one employer, 100% liable, if several employers, joint and severally liable.
2. Fairchild exception: This is when C has contracted mesothelioma or lung cancer as a result of a one-off exposure to asbestos as a result of working for one or a number of employers, but the balance of probabilities test cannot be used to assess material increase in risk. Instead, provided the employer did materially increase the risk, they will be liable. If C contracted mesothelioma, joint and several liability between the defendants; if D contracted lung cancer; damages are apportioned.
3. Multiple defendants each contributing to the same one-off injury that is not an industrial disease (eg a car accident) and you can’t tell using the but for test who caused the injury on the balance of probabilities. Use the material increase in risk test, but still a balance of probabilities calculation (C must prove more than 50% likely negligent act materially contributed to the risk).

Question 5

What is the Fairchild exception?

Answer 5

The Fairchild exception applies when C has contracted mesothelioma or lung cancer as a result of exposure to asbestos and has worked for one or multiple employers over time.

You cannot use the balance of probabilities to assess if there has been a material increase in risk, but D can be liable if they have materially increased the risk in some way (because it would be unjust if the case failed because you can’t probe a material increase in risk on balance of probabilities.

If C contracted mesothelioma, joint and several liability between the defendants; if D contracted lung cancer; damages are apportioned.

Question 6

What is the difference between material contribution and material increase in risk?

Answer 6

Material contribution: covers cumulative injuries where D’s negligence contributes to it over time

Material increase in risk: covers one-off injuries where D’s negligence has materially increased the risk of that injury happening

Question 7

What is the test for remoteness of damage?

Answer 7

Ask: Was the harm to the claimant so far removed from D’s negligence that it was unforeseeable by the defendant (judged by the standard of a reasonable person) at the time the action occurred?

1. The kind of damage must be reasonably foreseeable at the time the breach occurred (judged by the standards of a reasonable person).
2. Only the kind of damage is foreseeable, not the amount. So long as D causes some of the kind of harm that is foreseeable, that is enough.

Question 8

What is the eggshell skull rule?

Answer 8

You must take the claimant as you find them. D will be liable for the full extent of any harm caused to C, even if that harm is a result of some weakness of C, provided that the injury that caused the harm is foreseeable.

Includes damage aggravated by claimant’s own impecuniosity.

Question 9

When can an intervening act break the chain of causation?

Answer 9

1. Unforeseeable, intervening act of a third party (unless it is an instinctive act).
2. Natural, unforeseeable intervening act (like a storm)
3. Negligent intervention of a third party (must not be foreseeable, medical interventions unlikely to break the chain)
4. Reckless or intentional unforeseeable act of a third party (unless D has a level of control over that third party
5. The claimant’s actions after the event cause further harm (unlikely).

Question 10

What are the two elements of causation?

Answer 10

1. Factual causation
2. Legal causation

Question 11

What is the but for test?

Answer 11

On the balance of probabilities (more than 50% chance), but for the defendant’s breach of duty, would the claimant have suffered their loss at that time and in that way?

If no, factual causation is satisfied.

If yes, factual causation is not satisfied.

Question 12

How can a breach for a failure to advise on risk be satisfied in clinical negligence?

Answer 12

If the claimant can prove they would not have had the treatment or would have deferred the treatment had they been told of the risk.

Question 13

What are the exceptions to the but for test where test is not met but factual causation is established?

Answer 13

1. Material contribution test
2. Material increase in risk test

Question 14

What is the material contribution test?

Answer 14

On the balance of probabilities did the defendant’s breach make a material (more than negligible) contribution to the claimant’s disease?

Applies to both sequential cumulative causes and simultaneous cumulative causes.

Question 15

What is the material increase in risk test?

Answer 15

On the balance of probabilities, the defendant’s breach materially increased the risk of injury/disease. Contribution must be more than de minimis.

• confined to industrial disease cases and single agency cases only - one causing factor.

Question 16

What is a loss of chance argument?

Answer 16

Does not apply to personal injury or medical negligence. Pure economic loss.

Applied in a case where the claimant lost the chance to negotiate a clause in a contract as a result of the solicitor’s failure to advise. Causation was successful as the claimant proved that there was a real and substantial chance that the seller would have agreed to the clause.

Question 17

When will the court apply the material contribution test?

Answer 17

The court might apply the material contribution test where there is more than one potential cause of the claimant’s loss, and the causes have acted together to cause the loss. The claimant must prove that the breach made a more than negligible contribution to their loss.

Question 18

When might the courts apply the material increase in risk test and what the claimant must prove in order to satisfy the test?

Answer 18

The court might apply the material increase in risk test to single agent industrial disease cases where there is more than one potential cause of the claimant’s loss. The claimant must prove that the breach made a greater than de minimus contribution to the risk.

Question 19

What is apportionment?

Answer 19

Where there are multiple tortious factors which have caused the claimant’s loss, the courts will divide liability between the various defendants reflecting the respective fault of each defendant.

Apportionment is a calculation to apply once the factual causation has been established. Where there are multiple tortious factors which are known to have caused part of the loss, the courts apportion 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 20

What is the liability for defendants in mesothelioma cases?

Answer 20

Defendants are jointly and severally liable.

Means any or all of the negligent employers who exposed the claimant to asbestos will be liable to the claimant for the whole sum of damages, but can recover contributions from each other if necessary.

Question 21

What is the position if the second defendant has not caused any additional damage to the claimant?

Answer 21

Will not be liable.

Question 22

What happens if a second tortious event happens after an initial tortious event?

Answer 22

First defendant is liable for the original damage past the point of the second event. Second defendant is liable for any additional damage.

Question 23

What happens if a second naturally occurring event happens after an initial tortious event?

Answer 23

If the second event is naturally occurring, the defendant is liable for damage only up to the natural event.

Question 24

What is legal causation?

Answer 24

Legal causation is considered after factual causation has been established. Involved considering whether there are any grounds upon which the link should be regarded as having been broken.

Question 25

What are the three types of intervening acts?

Answer 25

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

Question 26

When will a natural event/act of god break the chain of causation?

Answer 26

If it is some exceptional natural event.

Natural events will not break the chain of causation is they could have been foreseen and the defendant should have taken them into account as events that were likely to happen.

Question 27

When will acts of third parties break the chain of causation?

Answer 27

Will only break the chain if it was highly unforeseeable - something that was very unlikely to happen as a result of the defendant’s negligence.

Question 28

When will acts of third parties break the chain of causation in the context of medical treatment?

Answer 28

Medical treatment will not break the chain unless it is so gross and egregious as to be unforeseeable.

Question 29

When will acts of the claimant break the chain of causation?

Answer 29

Act must be highly unreasonable - rare.

Question 30

What is the effect of an intervening act?

Answer 30

It breaks the chain of causation. Defendant will still be responsible for any loss before the novus actus event but will not be responsible for any loss after it.

Question 31

What is remoteness?

Answer 31

Idea that limits must be placed on the extent of loss recoverable. The damage must not be too remote from the defendant’s breach.

Test: Reasonable foreseeability

Question 32

What is the test of reasonable foreseeability?

Answer 32

A claimant can only recover if the type of damage suffered was reasonably foreseeable at the time the defendant breached their duty of care.

Objective test: what was reasonably foreseeable

Defendant ought to have foreseen the type of damage suffered. Some cases take a narrow view and others a broader view - prevailing attitude is to take a broad approach (particularly in personal injury).

No need to foresee exact way the damage occurs or the extent of the damage (will be liable for full extent if type of damage was reasonably foreseeable).

Question 33

Once it is established that the type of damage was foreseeable then:

Answer 33

• Claimant will succeed even if the precise way the damage occurred was not reasonably foreseeable
• Claimant will succeed even if the full extent of the damage was not reasonably foreseeable
• Defendant must take the claimant as they find them