Causation- Chapter 4 Flashcards
In order for a successful claim of causation, what must the claimant prove in two areas
Causation in law
And
Causation in fact
Causation in law
Damage must not be too remote from the negligence
Causation in fact
Requires evidence of a direct casual link between negligence and damage and casual link cannot have been broken
3 questions to ask yourself on causation and whether damage is applicable.
Did the breach cause the damage?
Was the chain of causation broken?
Was the damage too remote?
What is the basic ‘but for’ test
Would the claimant still have suffered a loss if it wasn’t for the defendants negligent act.
No loss, def liable. Loss, def not liable.
Barnet v Chelsea and Kensington hospital (Barnet)
Arsenic poisoning. Dr didn’t examine patient but held not to be liable because patient would’ve died anyway.
Rebuttal to Barnet
Gouldsmith- failed to refer her to a specialist which lead to loss of her hand.
Greg v Scott
Numerical approach is necessary to allow the court to establish whether deterioration of a condition was inevitable. If inevitable there’s no claim
Indivisible injury
Claimant must prove that harm was more probably than not using but for test (less than 50% no claim). Wilsher v essex area health authority
Divisible injury
If a material contribution has been made the defendant will be liable. Bonnington castings ltd v wardlaw
Material increase risk test - what is owed by the defendant in industrial disease
McGhee- remove the requirement that the claimant prove on the balance of probabilities, the defendant did in fact cause the harm claimed.
Mesothelioma special rules
It is difficult to establish which exposure to asbestos caused the illness.
Extensive time delay in the illness becoming apparent
Fairchild v Glenhaven
Claimant must prove that one employer has materially increased the risk of them contracting disease. That employer can then attempt to recover from other employers in the past.
Baker v Willoughby
If claimant is injured a second time, they can seek damages for their entire life time if the first injury affected their enjoyment of life from the get go, not just up till the second injury.
Jobling v Associated dairies
Claimant was only awarded damages for first injury as the second injury was inevitable and the damages would have given the claimant betterment instead of putting him in the position he started in. (Back injury then back disease case).
Baker / Jobbking differences
Baker applies if second act was deliberately caused
Jobling applies but if the second injury is attributable to a natural cause like disease
Causation - Novus Actus Interveniens
A new intervening act
Novus Actus Interveniens 3 Types
Nature
Third party act
Act of the claimant
Non Novus Actus Interveniens events which change negligence
A third parties act- maybe become another defendant.
Non intervening act by the claimant
Intervening act of nature
Must be reasonable foreseeable
Knightly v John’s
Treatment for injury will not reduce the defendants liability to pay damages
Webb v Barclays Bank and Portsmouth hospital
Intervening act if the claimant
Where the claimant contributed to their own injury
Sayers v Harlow
A claimant who has already suffered harm must take care not to worsen the situation
McKew
Causation in law - remoteness test
Wagon Mound
Would a reasonable person have foreseen the type or kind of damage that occurred when they acted negligently.
If no, as the injury is too remote. No damages will be awarded.
The thin skull rule
Defendant must take the victim as he finds him.
Robinson v Post office
Had tetanus jab but allergic got brain injury. Employer liable because he employed him with the allergy.
