Causation and Remoteness

Question 1

Barnett v Chelsea and Kensington Hospital Management Committee

Answer 1

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

Question 2

Hotson v East Berkshire AHA

Answer 2

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

Question 3

3 Different Situations to the But For Test Application

Answer 3

1) Material Contribution to Injury
2) Material Contribution to Risk
3) Loss of a Chance

Question 4

Bonnington Castings v Wardlaw

Answer 4

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

Question 5

Holtby v Brigham and Cowan

Answer 5

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

Question 6

Bailey v MoD

Answer 6

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

Question 7

Concurrent Events/Liability

Answer 7

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

Question 8

Heil v Rankin

Answer 8

If the more significant contribution/harm came first, then D is only liable for the additional damage that they materially contributed to

Question 9

Baker v Willoughby

Answer 9

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)

Question 10

Jobling v Associated Diaries

Answer 10

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

Question 11

Rahman v Arearose

Answer 11

Proportionate damages may also be awarded where factors operate concurrently, in addition to sequences of events - provided that the injury is divisible

Question 12

McGhee v National Coal Board

Answer 12

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

Question 13

Wilsher v Essex AHA

Answer 13

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

Question 14

Fairchild v Glenhaven Funeral Services

Answer 14

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!

Question 15

Barker v Corus UK

Answer 15

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)

Question 16

s.3 Compensation Act 2006

Answer 16

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

Question 17

Sienkiewicz v Greif

Answer 17

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.

Question 18

Durham v BAI

Answer 18

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

Question 19

Gregg v Scott

Answer 19

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

Question 20

Chester v Afshar

Answer 20

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

Question 21

Empress Cars v National Rivers Authority

Answer 21

Lord Hoffmann - novus actus typically consists of one of two events

1) Deliberate third party act
2) Extraordinary natural event

Question 22

Yachuk v Oliver Blais Co

Answer 22

Chain of causation is not broken if the third party acts in a reasonably foreseeable way (objective test)

Question 23

Knightley v Johns

Answer 23

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

Question 24

Weld-Blundell v Stephens

Answer 24

Deliberate act of a third party will usually break the chain of causation

Question 25

Corr v IBC Vehicles

Answer 25

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

Question 26

Reeves v Metropolitan Police Commissioner

Answer 26

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

Question 27

The Wagon Mound (No 1)

Answer 27

C can only recover damages which are reasonably foreseeable - objective test

Question 28

Smith v Leech

Answer 28

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

Question 29

Lagden v O’Connor

Answer 29

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

Question 30

Hughes v Lord Advocate

Answer 30

D only needs to reasonably foresee the TYPE of damage that might occur, not necessarily the exact sequence of events that did occur

Question 31

Spencer v Wincanton Holdings

Answer 31

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