CAUSATION AND REMOTENESS OF DAMAGE

Question 1

WHAT IS CAUSATION??

Answer 1

ESTABLISHING that the loss suffered was caused by the defendant’s breach of duty or negligent behaviour

Question 2

BUT-FOR TEST

Answer 2

• defendants breach of duty must be cause of damage totally or at the very least materially contributed to the claimants damage
• but-for test removes any factor that has had a casual effect

(but-for test was described in cork v Kirby Maclean Ltd)

Question 3

but-for test was used in

Answer 3

(Barnett v Chelsea and Kensington hospital management committee)

Question 4

courts could not easily use the but-for-test to prove causation and the fact that causation was an issue to decide upon in the case of…

Answer 4

(Chester v afshar)

Question 5

but-for test is simple when…

Answer 5

there is one cause of harm and one defendant

Question 6

BUT-FOR TEST IS NOT ADEQUATE WHERE…

Answer 6

• claimant has lost the chance of full recovery
• several concurrent cases
• consecutive causes of harm

Question 7

LOSS OF CHANCE CASES

Answer 7

usually involves medical negligence, if a claimant has a percentage chance of being cured but that percentage is reduced by the doctor’s delay in diagnosing illness.

Question 8

for loss of chances cases full damages should have been awarded rather than a percentage

Answer 8

(Hotson v East Berkshire area health authority )
and reinforced in (GREGG V SCOTT)

Question 9

SEVERAL CONCURRENT CAUSES OF HARM

Answer 9

where there is more than one possible cause of damage courts have modified the but-for test to find a fair way of deciding whether liability should be imposed on defendant.

(BONNINGTON CASTINGS V WARDLOW) HoL did not indicate what amounted to material contribution in this case

Question 10

DEFINITION OF PERCENTAGE ATTACHED WAS FINALLY ADDRESSED IN… AFTER THE CASE OF …

Answer 10

…(SIENKIEWCIZ V GRIEFF)

…(MCGHEE V NCB)
where it was held that where more than one possible cause of injury, causation can be proved if a claimant can show defendant’s negligence materially increased the risk of injury

Question 11

MATERIAL INCREASE APPROACH USED IN …
at times courts will use a diff approach from MCGHEE where claimant must prove on balance of probabilities that defendants negligence was material cause of injury not enough to show defendant merely increase risk of damage of damage like case of…

Answer 11

(BAILEY V MINISTRY OF DEFENCE )…

…(WILSHER V ESSEX AREA HEALTH AUTHORITY)

Question 12

CONSECUTIVE CAUSES OF HARM

Answer 12

where 2 independent event cause the damage and second defendants breach causes the same damage as that caused by the first defendant, first event should be treated as the cause
(BAKER V WILLOUGHBY)

Question 13

COURTS COULD USE THEIR OWN DISCRETION IN …

Answer 13

(JOBLING V ASSOCIATED DIARIES)

Question 14

NOT POSSIBLE TO PROVE WHO CAUSED THE HARM SO BOTH DEFENDANTS FOUND LIABLE

Answer 14

(FITZGERALD V LANE )

Question 15

MULTIPLE TORTFEASORS

Answer 15

this mostly occurs in realtion to work related illnesses that has taken years to develop
(HOLTBY V BRIGHAM AND CROWN)

Question 16

Holtby principle can work harshly against claimants as they may not recover compensation in full so it was partially corrected by

Answer 16

(FAIRCHILD V GLENHOVEN FUNERAL)

Question 17

(FAIRCHILD V GLENHOVEN FUNERAL)

Answer 17

where each defendant will be liable if it can be shown they made a material contribution to risk of harm

Question 18

COURTS TOOK THE CHANCE TO AMEND THE SITUATION IN FAIRCHILD IN A SIMILAR CASE…

Answer 18

(BARKER V CORUS UK)
where defendant’s contribution to harm was limited to the extent that they negligently exposed the claimant to harm

Question 19

NOVUS ACTUS INTERVENIENS

Answer 19

defendant has to show that an intervening act has caused the damage rather than the defendant this may break the casual link btw defendants breach of duty and harm

• intervention by claimant
• intervention by third party

Question 20

INTERVENTION BY THE CLAIMANT

Answer 20

test is whether the claimant acted reasonably in the circumstances. If the claimant’s actions are deemed reasonable the chain of causation remains intact and the defendant is liable for the actions of the claimant. If, however, the claimant’s actions are unreasonable in the circumstances the chain of causation is broken and the defendant is not liable for the actions of the claimant

(MCKEW V HOLLAND AND HANNEN CUBITTS)

Question 21

INTERVENTION BY 3RD PARTY

Answer 21

Where the new act is of a third party, the test is whether the act was foreseeable. If the act of the third party was foreseeable, the defendant remains liable and the chain of causation remains intact.

(KNIGHTLEY V JOHNS)

Question 22

TEST FOR REMOTENESS OF DAMAGE

Answer 22

DAMAGE MUST BE A FORESEEABLE TYPE. CAN BE APPLIED TO NEGLIGENCE CLAIMS, OCCUPIERS LIABILITY AND NUISANCE CLAIMS

Question 23

ORIGINALLY A DEFENDANT WAS LIABLE FOR ALL LOSSES WHICH WERE A DIRECT CONSEQUENCE OF THE DEFENDANTS BREACH OF DUTY

Answer 23

*(RE POLEMIS)

Question 24

RE POLEMIS CASE WAS CONSIDERED UNFAIR AS A DEFENDANT COULD BE LIABLE FOR DAMAGE WHICH WAS NOT FORESEEABLE AND THEREFORE COULD NOT TAKE STEPS TO PREVENT IT SO DIRECT CONSEQUENCE TEST WAS OVERRULED IN

Answer 24

(WAGON MOUND NO)

Question 25

FOLLOWING THE WAGON MOUND CASE DAMAGE MUST BE OF A KIND OF FORESEEABILITY . ONCE DAMAGE IS A KIND THAT IS FORESEEABLE DEFENDANTS ARE LIABLE FOR THE FULL EXTENT OF DAMAGES NO M,ATTER WHETHER THE EXTENT OF DAMAGE IS FORESEEABLE

Answer 25

(HUGHES V LORD ADVOCATE)

Question 26

THIN SKULL RULE IN REMOTENESS OF DAMAGE

Answer 26

(PAGE V SMITH)
(SMITH V LEECH BRAIN AND CO)