Causation in Law

Question 1

Excessive liability

Answer 1

law of tort doesn’t accept that defendant is always liable for all the factual consequences of their tort
-it could impose excessive burdens on the defendant

Question 2

Relationship between causation infact/law explained by Lord Nicholls in Kuwait Airways Corporation v Iraqi Airways Co (2011)

Answer 2

“whether the wrongful conduct causally contributed to the loss and, if it did, what is the extent of the loss for which the defendant ought to be held liable”

Question 3

What is causation in law?

Answer 3

“the extent of the loss for which the defendant ought fairly or reasonably or justly to be held liable”

Question 4

Sequence of questions from Rylands v Fletcher

Answer 4

1. Is the kind of damage reasonably forseeable? If it is not the damage is too remote and D isn’t liable
2. If the damage is reasonably forseeable is it the result of a new intervening cause? If yes it’s too remote
3. If the damage is r.f is it the result of coincidence? If it is then the damage is too remote

Question 5

Two principle tests in law of tort for remoteness of damgae

Answer 5

• directness

- foreseeability

Question 6

Re Polemis (1921)

Answer 6

• workmen employed by charterers of a ship carelessly caused plank to fall in the hold
• cargo included petrol
• plank caused a spark in falling and gas burst into flames
• ship was destroyed
• owners claimed value of ship from charterers
• court held the spark could not reasonably have been anticipated from the board falling
• was not foreseeable
• CA found charterers liable
• forseeability of harm was relevant to DoC but not to remoteness
• held that if the act would cause damage the fact the damage is not the exact kind one would expect is immaterial
• also held that if the act by D is negligent then the fact the consequence was not forseen is immaterial

Question 7

Wagon Mound 1 and 2 (1961-67)

Answer 7

• 1 held that in the law of negligence the correct test for remoteness was not the Polemis directness test
• new test for whether the kind of damage was reasonably forseeable
• Polemis wasn’t used cause courts held r.f was fairer/simpler
• C got nothing even though D was careless and C was a forseeable victim of that negligent act and his property was damaged directly
• 2 judge held the fire was forseeable but as a slight possibility
• privvy council held it did not matter due to D’s conduct and the potential for serious damage
• broadening of the reasonable forseeability test

Question 8

Hughes v Lord Advocate

Answer 8

• precise manner harm is caused doesn’t need to be forseeable
• workmen left open manhole unattended covered by tent
• left lamps to mark the place
• child knocked lamp down manhole
• gases in the manhole caused explosion
• child seriously injured
• HoL rejected claim the harm was too remote/not forseeable
• workmen were negligent to leave lamps lit
• burns to he child were held to be reasonable through contact with the lamp
• the fact that burns were caused by explosion instead was immaterial
• making foreseeability to precise would be unfair to claimants

Question 9

Lord Denning’s broad approach for remoteness in Stewart v West African Terminals (1964)

Answer 9

“it is not necessary that the precise concatenation of circumstances should be envisaged. If the consequence was one which was within the general range which any reasonably foreseeable person might foresee, then it is within the rule that a person who has been guilty of negligence is liable for the consequences”

Question 10

Thin skull rule

Answer 10

as regards remoteness of damage, D takes C as they find them

Question 11

3 variants of the thin skull rule where defendant is liable (general rule)

Answer 11

• where D negligently causes foreseeable harm to C which reacts adversely to condition C already has and causes further harm, D is liable for further harm
• where D negligently causes forseeable harm to C, C reacts adversely to medical treatment, D is liable for further harm
• D negligently causes hypersensitivity that causes further harm (liable for further harm)
• D aggravates pre-existing neurosies they are liable in full

Question 12

Smith v Leech Brain (1962)

Answer 12

• D negligently failed to provide adequate shield at work
• C’s job was to lower articles into molten metal
• was given iron sheet to protect himself
• court held this was negligent work system
• molten metal struck C ans caused a burn
• C was predisposed to cancer and burn became cancerous and spread
• C died 3 years later
• Lords held thin skull principle that D takes C as he finds him
• test isn’t whether employers could’ve forseen C would get cancer from burn and die but that the burn in itself was forseeable
• once a forseeable injury is held to be caused by D’s negligence D is liable for all the consequences of the injury

Question 13

Dulieu v White, Thin skull quote

Answer 13

“if a man is negligently run over or otherwise negligently injured in his body, it is no answer to the sufferer’s claim for damages that he would have suffered less injury, or no injury at all, if he had not had an unusually thin skull”

Question 14

Robinson v Post office (1974)

Answer 14

• C was technician employed by post office and slipped on ladder and injured himself
• D negligently allowed oil to leak causing it to be slippery
• C went to doctor who gave him anti-tetanus serum
• C suffered severe reaction/brain damage
• held D were liable for full consequences of the brain damage
• whether or not doctor was negligent was held to be immaterial

Question 15

Wieland v Cyril Lord Carpets (1969)

Answer 15

• C injured on a bus as a result of D’s negligence which gave her neck injury
• she wore spectacles
• in hospital she was given surgical collar which made it difficult to use spectacles
• she was unsteady on her feet
• C went to see son and fell and injured her ankle
• D was liable for further injury
• thin skull rule it was a result of hypersensitivity caused by D

Question 16

Rationale of new intervening causes according to Lord Bingham

Answer 16

“it is not fair to hold a tortfeasor liable, however gross his breach of duty may be, for damage caused to the claimant not by the tortfeasor’s breach of duty but by some independent, supervening cause for which the tortfeasor is not responsible”

Question 17

General approach for new intervening causes in Clay v TUI (2018)

Answer 17

• intervening conduct of claimant
• C’s family were on holiday at hotel
• whole family gathered at grandparent’s balcony
• clicking sound heard and door was locked
• father decided to cross to balcony for the next room
• ledge gave way and father suffered serious injuries
• courts held there was a breach of duty as the door lock didn’t work properly
• F put himself in damage by crossing ledge which was N.I.C
• judge held there was no danger or threat to justify the obvious risk of life threatening injury
• C’s actions were highly unreasonable which satisfies N.I.C requirement

Question 18

Considerations for cases involving N.I.C according to LJ Aikens in Wincanton (2009)

Answer 18

1. was conduct reasonably forseeable? (the more forseeable the less likely to be N.I.C)
2. the degree of unreasonableness of conduct
3. the extent to which it was volunary/independent conduct (the more deliberate/informed its more likely to be N.I.C)

Question 19

Rule for intervening acts of third parties

Answer 19

-reasonable act of third parties in accordance with human nature doesn’t break chain of causation

Question 20

The Oropesa (1943)

Answer 20

• adult taking reasonable steps to protect their own interests
• doesn’t break causation chain
• collison between D’s ship and O
• O was severly damaged
• master of O decided to cross to other ship in a boat to talk about how to save O
• his boat capsized and he drowned
• CA held his decision was not unreasonable and did not break causation chain

Question 21

Lord Reid on novus actus interveniens in McKew v Holland (1969)

Answer 21

“if the injured man acted unreasonably he cannot hold the defender liable for injury caused by his own unreasonable conduct. His unreasonable conduct is novus actus interveniens. The chain of causation has been broken”

Question 22

When are courts likely to find a break in the chain of causation?

Answer 22

-if the intervening conduct is grossly negligent or deliberate wrongful actions

Question 23

Rouse v Squires (1978)

Answer 23

• through negligence of Alan a lorry obstructed the road
• other lorry drivers stopped to help including R
• S drove into the back of the other lorries and R was killed
• judge held S was entirely negligent and was to blame
• CA held Alan was partially responsible for 25%
• S would be wholly to blame if he drove deliberately against obstruction/was reckless
• where there is an accident on the road it is highly forseeable it will trigger further accidents
• so chain of causation is only broken where there is deliberate wrongful action/recklessness

Question 24

Webb v Barclays, 2001 (negligent medical treatment and NIC)

Answer 24

-CA held that negligent medical treatment is not sufficient to break the chain of causation, there needs to be some gross error

Question 25

Lord Neuberger’s comment on NIC in Wright Cambridge (2011)

Answer 25

-hospital’s negligence was not egregious neglience of a high degree and so did not amount to NIC

Question 26

Wagon mound principle on NIC

Answer 26

• where an intervention is unforseeable there will be a break in causation
• the harm is too remote

Question 27

LJ Stephenson’s comment in Knightley v Johns on NIC

Answer 27

“the question to be asked accordingly is whether that whole sequence of events is a natural and probabale consequence of the first defendant’s negligence and is a reasonably forseeable result of it”

Question 28

What happens when an act by the intervening party is a deliberate wrongful act? (general rule)

Answer 28

deliberate wrongful action will normally break the chain of causation

Question 29

Dictum of Lord Sumner in Weld-Blundell v Stephens (1920) on deliberate wrongful interventions

Answer 29

“even though A is at fault, he is not responsible for injury to C, which B a stranger to him, deliberately chooses to do. Though A may have given occasion for B’s mischievous activity, B then becomes a new and independent cause”

Question 30

What happens where C in some way contributes to their own harm (NIC)? (general rule)

Answer 30

• usually apportionment
• law reform contributory negligence act 1945 enables court to reduce amount of damages awarded to C in accordance with their own contribution to the harm they suffered
• in some circumstances the court may regard the contribution as amounting to NIC, relieving D of liability entirely

Question 31

General rule for non-negligent action by the claimant for the chain of causation

Answer 31

-it will not break the chain of causation according to Jones v Boyce (1816) and Yachuk v Oliver (1949)

Question 32

Jones v Boyce (1816)

Answer 32

• C jumped from carriage which was out of control due to D’s negligence
• C was injured
• had C stayed on the coach they wouldn’t have been injured
• court held that the decision was a wrong decision but it wasn’t unreasonable in the moment it was made and so it didn’t amount to NIC

Question 33

McKew v Holland (1969)

Answer 33

• C’s actions held to be NIC
• M suffered injury in the course of his employment and D were liable
• as a result of his injury he occasiaonlly lost control of his left leg
• he was descending a flight of steps with no handrail and chose to go down holding his daughter
• left leg gave away and he threw his daughter back and jumped
• he fractured his ankle
• HOL held C’s conduct in seeking to descend the stairs unaided was NIC
• initial unreasonableness of his conduct broke chain of causation

Question 34

What if the claimant is negligent or reckless but D has a duty of care to protect them (chain of causation)?

Answer 34

-it will not break the chain of causation according to Reeves v Commissioner of police (2000) in which police officers have a positive DOC to protect suicidal prisoners, suicide isn’t NIC

Question 35

What if a defendant causes a psychiatric harm on C that lead’s to C’s suicide according to Corr v IBC (2008)?

Answer 35

• HOL held that a voluntary, informed decision of an adult of sound mind to take their won life following an injury in an accident D was responsible for would break chain of causation
• but if the person. is not an adult of sound mind and their decision to commit harm is a product of psychiatric harm D caused D is liable (maybe)

Question 36

common example of coincidence

Answer 36

-D’s tort places C at a particular place/time where they are harmed by a wholly unconnected risk

Question 37

Gorris v Scott (1874), coincidence

Answer 37

• D was in breach of staturoy duty to put pens to prevent spread of disease among livestock
• held not liable for breach when the animals were swept over due to the weather
• their duty was to prevent animals from disease not the type of accident that occurred

Question 38

According to Lord Hoffman in SAAMCO (1997) why is satisfying the but-for test not enough?

Answer 38

• there must be connection between reason why doctor was negligent and the outcome
• if doctor is negligent but the mountaineer is injured by what has nothing to do with the negligence, the doctor’s negligence didn’t increase the susceptibility of that injury so he isn’t liable

Question 39

rule for liability in coincidence

Answer 39

-there is generally no liability

Question 40

Kahn v Meadows (2019)

Answer 40

• C’s nephew born with haemophilia so she tested to see if the was a carrier
• assured she wasn’t a carrier but wrong test was conducted
• son born with severe haemophilia
• if she was told she was a carrier the foetus would have been tested and pregnancy terminated
• D accepted liability for wrongful birth and costs for raising a child with the disease, 1 million
• child was autisitc which added to the costs by millions and judge awarded full amount
• CA disagreed because autism had nothing to do with haemophilia
• autism costs didn’t fall within scope of GP’s duty of care, coincidental injury
• GP only asked about H, wasn’t asked to give general exams on risk of pregnancy

Question 41

what situations are the normal requirments for causation (but-for) test relaxed to bring a just decision

Answer 41

• material contribution (bonnington)

- multiple sufficient causes

Question 42

Dictum by Lord Simon in McGhee v NCB (1973), material contribution

Answer 42

“where an injury is caused by two or more factors operating cumulatively…in such a way that it is impossible to ascertain the proportion in which the factors were effective in producing the injury or which facts was decisive, the law does not require a pursuer or plaintiff to prove the impossible, but holds that he is entitled to damages for the injury if he proves on the balance of probabilities that the breach or breaches of duty contributed substantially to causing the injury”

Question 43

LJ Waller in Bailey v Ministry of defence (2009), material contribution

Answer 43

“in a case where medical science cannot establish the probability that ‘but for’ an act of negligence the injury would not have happened but can establish that the contribution of the negligent cause was more than negligible, the ‘but for’ test is modified and the claimant will succeed”

Question 44

Bailey v Ministry of defence (2009)

Answer 44

• C in hospital after operation
• left in weakened condition
• negligence of hospital in post-operative care
• while in a different hospital she vomitted and she as so weak that she breathed it in
• caused her brain damage
• weakness caused inhalation of vomit and hospital a contributed to that and were held liable
• appled LJ Waller’s dictum so but for test didn’t apply as there was material contribution

Question 45

Application of dictum in Bailey to John v Central manchester (2016)

Answer 45

• C lost his footing on some stairs and injured his head
• found 2 hours later and taken to hospital
• developed serious brain damage
• judge held negligent delay at hospital in ordering CT scan caused extended period of pressure on the brain which materially contributed to injury
• judge accepted dictum in bailey so no need for but-for causation
• damages not apportioned, judge held brain damage was single indivisible injury

Question 46

Mcghee v national coal board (1973)

Answer 46

• HoL held it was sufficient for C to establish causation by simply showing D’s tort materially increased the risk in harm
• M sent by employers to clean out brick kilns which exposed him to abrasive dust
• employers provided no washing facilities so he had to cycle home dirty and developed dermatitis
• medical evidence showed injury was caused by working conditions/dust
• risk was materially increased by cycling home dirty/dusty
• breach of duty was their failure to provide washing facilties according to statutory duty
• HoL coudln’t prove causation in fact
• held it was sufficient to show D’s tort materially increased risk of dermatitis

Question 47

limits to McGhee exception in Wilsher v Essex Area Health authority (1988)

Answer 47

• C was premature baby and needed oxygen
• hospital carelessly gave too much
• increased risk baby would develop condition affecting sight
• evidence showed there were other possible causes besides the negligence
• HoL held McGhee principle didn’t apply because only one single noxious agent was involved (no doubt dust caused dermatitis) but here other causes could equally have caused the damages
• shifts balance too far in C’a direction because there were multiple noxious agents

Question 48

what are concurrent tortfeasors?

Answer 48

-when two or more are liable for a single, indivisble injury

Question 49

four joint tortfeasor situations:

Answer 49

• vicarious liability (employer vicariously liable for employee)
• where ther eisn abreach of duty imposed jointly on 2/more persons (spouses who jointly own a house both have DOC to take care of a lawful visitor and each will be liable if reasonable care isn’t taken and visitor is injured
• where one person insitgates another to commit a tort by inducement. incitement, persuasion or encouragement
• where one person assists another to commit a tort in pursuance of a common design (mere facilitation of a tort without a common design does not suffice)

Question 50

Pitts v Hunt compared to Cook v Lewis

Answer 50

• in P, the passenger on motorcycle encouraged driver to drive recklessly and scare people
• both were drunk
• collided with another car and rider was killed and passenger seriously injured
• both rider and passenger would in principle be liable to car driver for damages to his car/personal injuries (wasn’t litigated)
• in Cook, there was no encouragement for the other to shoot recklessly so there was no joint liability

Question 51

CBS songs v Amstrad (1988)

Answer 51

• A and other made systems that included recording at high speed from pre-recorded sets to blank tapes
• Ds sold machines to customers
• machine facilitated the copying of cassets in breach of copyright
• HoL held the manufacturers weren’t liable as joint tortfeasors with tape recorder owners who used machines unlawfully
• manufacturers had not procured breach of copyrifht by inducement. incitement or persuasion
• they didn’t act in concert with tape recorder owners and there was no common design between them
• no joint liability

Question 52

Fish v Sea Shepherd 2015

Answer 52

• C owned fish farm off shore malta
• one case of tuna was rammed y vessel operated by environmental activists who regarded them as illegal
• was D (uk branch) of activists part of a common design?
• CA held yes because they sent donations and took two volunterrs to the ship that rammed into C’s ship to work on it
• this was reversed by SC
• actions of UK branch were de minimis
• Lord Neuberger held for lability as joint tortfeasors D must have “assisted the commission of an act by the primary tortfeasor’
• on the facts it was insufficient to count as assistance
• if there was assistance there could have been common design

Question 53

Brooke v Bool (1928)

Answer 53

• landlord of shop invited lodger who lived upstairs to help him detect escape of gas from pipe in shop
• landlord applied a match to one section of pipe and lodger did where landlord coudln’t reach
• lodger’s match caused explosion
• landlord held liable because he authorized the neglgient act
• case of instigation and court held they were acting to a common end
• joint tortfeasors

Question 54

What happens for contribution/damages where D1 and D2 are liable for a single injury

Answer 54

• C can choose to just sue D1 and D1 will have to pay the full bill but they have the right to claim contribution from D2
• court decide how much contribution is equitable depending on how much they regard that person contributed to the damage s1(3)

Question 55

Apportionment, contributory negligence act 1945

Answer 55

• s1(1)
• where a person suffers damage as a result partly of his own fault and partly of the fault of any other person/persons the claim in respect of that damage wull not be defeated but damages recoverable will be reduced according to C’s share in responsibiity for the damage
• no duty element

Question 56

what is the general standard for contributory negligence according to LJ Denning in Jones v Livax (1952)?

Answer 56

“a person is guilty of contributory negligence if he ought resasonably to have forseen that, if he did not act as a reasonable prudent man he might hurt himself”

(standard of care for children is standard of care for reasonable child their age)

Question 57

What happens where the defendant’s wrong has put the claimant in situation of danger and C’s natural reaction fails to avail them of opportunity of escape or aggravates the situation (unintentionally) according to Jones v Boyce (1816)?

Answer 57

-“If I place a man in such a situation that he must adopt a perilous alternative, I am responsible for the consequences”

Question 58

General rule for causation in contributory negligence

Answer 58

• neglgience must be a cause in fact of at least part of damage suffered by C
• application of but for test

Question 59

is it necessary for CN that C’s negligence contributes to the accident?

Answer 59

• no

- its sufficient for it to just contribute to the damage

Question 60

Defence violenti non fit injuria

Answer 60

-common law principle
-no one should have compensation for a harm they have freely consented to expressly/impliedly
“to a willing person no injury is done”

Question 61

How can you use defence violenti non fit injuria in negligence?

Answer 61

express exclusion clause in contract

Question 62

How can a defendant establish there is implied consent (violenti non fit injuria) according to Dann v Hamilton (1939)?

Answer 62

“there may be cases in which the drunkeness of the driver at the material time is so extreme and so glaring that to accept a lift from him is like engaging in an instrinsically and obviously dangerous occupation”

-where c’s conduct is so foolish the normal approach is to reduce damages for CN