Causation and Remoteness Flashcards
Barnett v Chelsea and Kensington Hospital Management Committee
The GENERAL test for causation in tort is the but for test - if C’s damage would not have occurred but for D’s act, then there is causation
Hotson v East Berkshire AHA
Where, on the balance of probabilities, C would have suffered the injury anyway, there is NOT causation. So if over 50% chance that C would have suffered the injury anyway, D is not liable
The law uses balance of probabilities to treat likelihood as certainty
3 Different Situations to the But For Test Application
1) Material Contribution to Injury
2) Material Contribution to Risk
3) Loss of a Chance
Bonnington Castings v Wardlaw
Where there are multiple potential causes to C’s injury, the court use a different test as it would not be appropriate/helpful to use but for in these situations. Test for MCTI = there is causation if D materially contributed to the risk - anything that falls outside of the de minimis exception (law does not pay attention to tiny details)
D is only liable for their material contribution to C’s injury
Holtby v Brigham and Cowan
If multiple employers materially contributed to the injury, each employer is liable for the share of the injury that they caused - done on a time-exposure basis here as there was no other fair method
Bailey v MoD
But if the injury is INDIVISIBLE, then D is joint and severally liable for the whole injury - rough form of justice, but it is the law
Concurrent Events/Liability
D’s liability for material contribution to injury where the events are taking place alongside each other is different. The extent of D’s liability depends on whether the more significant cause came first or second
Heil v Rankin
If the more significant contribution/harm came first, then D is only liable for the additional damage that they materially contributed to
Baker v Willoughby
If the more significant harm came second (after D’s negligence), then D is liable for the full extent of the injury if the second significant harm was tortious (i.e. caused by another person committing a tort)
Jobling v Associated Diaries
However, if the second significant harm was caused naturally (e.g. back condition developed after D’s material contribution to injury), then D is only liable for the harm they caused - liability stops before the second harm is caused/develops
Rahman v Arearose
Proportionate damages may also be awarded where factors operate concurrently, in addition to sequences of events - provided that the injury is divisible
McGhee v National Coal Board
Court extended material contribution to injury to material contribution to risk - so where D has not necessarily/clearly caused the injury, but simply increased the risk of D suffering the injury they went on to suffer, D is liable
Wilsher v Essex AHA
Court cast some doubt over McGhee v National Coal Board - suggested that it was not a new test, which led to material contribution to risk being very confined. This is important in the historical development of material contribution to risk - now only used in mesothelioma/similar cases
Fairchild v Glenhaven Funeral Services
Court applied the material contribution to risk test - D was found to be liable for materially contributing to C’s risk of suffering mesothelioma. Important in the decision that it is scientifically unclear whether mesothelioma is triggered by one exposure, or an accumulation - therefore, D was liable for mat. cont. to risk because it could be the former.
But HL kept it very confined to such cases in the workplace!
Barker v Corus UK
Employers can still be liable for material contribution to risk, even if C also negligently contributed to the risk himself. Court held that D is only severally liable - i.e. only liable for the increase in risk that they caused = caused outcry and led to s.3 Compensation Act 2006
Also confirmed single agent rule - material contribution to risk only applies where the condition has one causative agent (e.g. asbestos fibres)
s.3 Compensation Act 2006
Where D materially contributes to the risk of C suffering mesothelioma, D is joint and severally liable - this means that one D is liable to pay C FULL damages where D materially contributed to the risk.
Note that this section ONLY applies to mesothelioma! So if Fairchild does extend to other diseases/injuries, then these diseases cannot get full damages from just one employer
Sienkiewicz v Greif
Suggests that the Fairchild principle MIGHT apply to other diseases than just mesothelioma. However, it is clear that if this is the case, there must be the same ‘rock of uncertainty’ - i.e. it must be medically uncertain about whether the disease is caused by just one exposure, or accumulation etc.
Durham v BAI
In order to claim compensation for material contribution to risk, C must actually go on to suffer from the condition that D’s negligence materially contributed to the risk for - damages are for the injury, not JUST the risk
Gregg v Scott
If, on the balance of probabilities, C would not have survived/recovered from the condition anyway, then D is NOT liable. So if the chance of recovery was below 50% already, D is not liable for causing loss of a chance.
C’s chance of survival was only 42% if the doctor had correctly diagnosed his cancer originally, so on the balance of probabilities he would not have recovered - so his loss of chance was NOT recoverable
Chester v Afshar
Disclosure of risk to patient has a different rule - if D does not disclose all of the material risks to a patient, even if they have a very low likelihood, then D is liable
Empress Cars v National Rivers Authority
Lord Hoffmann - novus actus typically consists of one of two events
1) Deliberate third party act
2) Extraordinary natural event
Yachuk v Oliver Blais Co
Chain of causation is not broken if the third party acts in a reasonably foreseeable way (objective test)
Knightley v Johns
A momentary mistake will NOT break the chain of causation, but several acts of serious negligence will break the chain. So degree/amount of carelessness is an important factor in negligent acts breaking the chain of causation
Weld-Blundell v Stephens
Deliberate act of a third party will usually break the chain of causation
Corr v IBC Vehicles
But the mere fact that C makes a deliberate act does not necessarily break the chain of causation - C’s act must be truly voluntary and informed. It was NOT here because C’s suicide was not truly voluntary and informed
Reeves v Metropolitan Police Commissioner
Even where C is sound of mind when they commit suicide in police custody, D is still liable as the chain of causation is not broken - broad police/prison duty of care to prevent self-harm.
It would make a mockery of the duty to prevent self-harm by police to say that the chain of causation was broken when C actually does commit self-harm
The Wagon Mound (No 1)
C can only recover damages which are reasonably foreseeable - objective test
Smith v Leech
The Wagon Mound does not apply to ‘thin skull’ cases - so where C is more likely to sustain certain injury due to a personal vulnerability unknown to D, D is still liable for the full extent of the damage
Lagden v O’Connor
D can be liable for subsequent financial loss due to their negligence if it was reasonably foreseeable that C would incur other expenditure to mitigate his loss
Hughes v Lord Advocate
D only needs to reasonably foresee the TYPE of damage that might occur, not necessarily the exact sequence of events that did occur
Spencer v Wincanton Holdings
If C still acts in a reasonably foreseeable way and this leads to an unexpected but possible further injury, it is not too remote to be recoverable
