Chapter 3 - Negligence: Causation of Damage & Defences

Question 1

What is the role of causation in determining negligence?

Answer 1

Causation helps establish whether the defendant’s breach of duty caused the claimant’s harm, determining if the defendant is liable for damages.

Question 2

In the example where David builds a bonfire too close to Fred’s shed, who caused the damage?

Answer 2

David caused the damage by failing to exercise reasonable care in placing the bonfire, and but for his actions, Fred’s shed would not have been destroyed.

Question 3

What happens to causation if another party, such as John adding tyres to the fire, contributes to the damage?

Answer 3

John’s actions may be considered a new intervening act (novus actus interveniens), breaking the chain of causation by being the real cause of the damage, rather than David’s initial actions.

Question 4

In the second example, why might David not be held responsible for Fred losing rent from his shed?

Answer 4

Fred’s loss of rent may be considered too remote from David’s actions. While David’s negligence caused the damage to the shed, the loss of rent might be deemed too far removed to hold him responsible.

Question 5

What does “remoteness of damage” mean in causation?

Answer 5

Remoteness of damage refers to whether the harm suffered by the claimant was too far removed from the defendant’s negligence, making it unfair to hold the defendant liable for all consequences.

Question 6

What are the three key questions to consider when analyzing causation of damage?

Answer 6

1. Was the defendant’s negligence a factual cause of the claimant’s harm?
2. Was there an intervening act that broke the chain of causation?
3. Was the damage too remote to hold the defendant responsible?

Question 7

What is the primary question asked when determining causation of damage?

Answer 7

The primary question is: “As a matter of fact, was the defendant’s negligence a cause of the claimant’s damage?” This establishes the basis for applying the ‘but for’ test.

Question 8

What were the facts in Barnett v Chelsea and Kensington Hospital Management Committee [1969]?

Answer 8

A nightwatchman visited the hospital feeling unwell but was sent away by a doctor without examination. He later died from arsenic poisoning, which medical evidence stated was too advanced to have been treated, even if he had been seen by the doctor.

Question 9

What was the court’s decision regarding causation in Barnett v Chelsea and Kensington Hospital (1969)?

Answer 9

• The court held that while the hospital breached its duty of care, that breach was not the cause of the nightwatchman’s death.
• It determined that the hospital neither administered the arsenic nor could have prevented the death.

Question 10

What does the ‘but for’ test entail in determining causation?

Answer 10

The ‘but for’ test asks: “But for the defendant’s breach of duty, would the harm to the claimant have occurred?” If yes, causation is not satisfied, and the claim fails. If no, then causation is established, allowing the claim to proceed.

Question 11

What is meant by the “chain of causation” in legal terms?

Answer 11

The chain of causation refers to the link between the defendant’s actions (or omissions) and the loss or damage suffered by the claimant. It is essential to establish that the defendant’s breach directly caused the harm in order to hold them liable.

Question 12

What is the standard of proof in civil cases regarding factual causation?

Answer 12

In civil cases, the claimant must prove the alleged fact on a balance of probabilities, meaning it must be shown that it is more likely than not that the defendant’s actions caused the harm.

Question 13

In a negligence claim, what must the claimant demonstrate regarding causation?

Answer 13

The claimant must show, on the balance of probabilities, that the harm suffered was caused by the defendant’s breach of duty. If they fail to do so, the claim will fail.

Question 14

What were the facts in Hotson v East Berkshire Area Health Authority [1987]?

Answer 14

The claimant fell from a tree and sustained injuries but received negligent treatment from the defendant. There was a 75% chance that the claimant’s condition would have been the same regardless of the treatment.

Question 15

Why did the court rule against the claimant in Hotson v East Berkshire (1987)?

Answer 15

The court ruled that the claimant failed to satisfy the causation test because there was only a 25% chance that the defendant’s breach caused the disability. This did not meet the balance of probabilities standard.

Question 16

What were the facts in Wilsher v Essex Area Health Authority [1988]?

Answer 16

The claimant was born prematurely and treated at a hospital. Due to a catheter being incorrectly inserted, he was supersaturated with oxygen, which led to blindness. There were five potential causes of the blindness, only one of which was the defendant’s negligence.

Question 17

What was the court’s ruling in Wilsher v Essex Area Health Authority (1988) regarding causation?

Answer 17

• The court held that the claimant failed to establish that the defendant’s negligence caused the harm because there were multiple potential causes of the blindness, and he could not prove that the damage was due to the defendant rather than other causes.
• The House of Lords considered the fact that burden falls on the claimant to prove that the defendant’s breach of duty caused the harm on balance of probabilities, and because there were so many possible causes of the harm, the claimant had not discharged the burden.

Question 18

What does the material contribution approach in causation address?

Answer 18

The material contribution approach is used in cases where multiple causes have contributed to the harm suffered by the claimant, allowing for liability even if the defendant’s actions were not the sole cause.

Question 19

What were the facts in Bonnington Castings Ltd v Wardlaw [1956]?

Answer 19

The claimant contracted pneumoconiosis after inhaling dust while working at the defendant’s foundry. There were two types of dust: guilty dust from swing grinders (where the defendant breached duty) and innocent dust from a pneumatic hammer (no breach).

Question 20

What was the court’s decision regarding causation in Bonnington Castings Ltd v Wardlaw (1956)?

Answer 20

• The House of Lords held that the claimant established causation by showing the guilty dust from the defendant’s breach materially contributed to his disease.
• The defendant’s breach of duty did not need to be the sole or main cause, simply that it materially contributed to the damage.

Question 21

Why was the material contribution approach not applied in Wilsher v Essex Area Health Authority?

Answer 21

In Wilsher, the claimant could only show that five different risk factors potentially caused his blindness, with the defendant responsible for only one. The defendant’s negligence did not materially contribute to the harm.

Question 22

What was the significance of McGhee v National Coal Board [1973] regarding the material contribution approach?

Answer 22

The House of Lords extended the material contribution approach to include a material increase in the risk of injury rather than just a direct contribution to the injury itself. The claimant couldn’t prove that the dust caused his dermatitis but could show the risk was increased due to the defendant’s failure to provide washing facilities.

Question 23

What was the outcome of Sienkiewicz v Greif (UK) Ltd [2011] regarding the material increase in risk?

Answer 23

The Supreme Court allowed the claimant to rely on the material increase in risk approach, finding the defendant liable. However, the judgments suggested this principle is limited to cases of scientific uncertainty, particularly regarding mesothelioma.

Question 24

How is the principle of material increase in risk viewed in terms of causation?

Answer 24

• The material increase in risk principle is considered an exception to the usual rules of causation and is strictly confined to cases involving scientific uncertainty.
• In most cases, the claimant must still prove causation using the standard ‘but for’ test or the material contribution test.

Question 25

What is meant by divisible injury in the context of negligence claims?

Answer 25

Divisible injury refers to situations where a claimant’s harm can be apportioned among multiple defendants based on the contribution each made to the injury.

Question 26

What were the facts in Holtby v Brigham and Cowan (Hull) Ltd [2000]?

Answer 26

The claimant developed asbestosis from exposure to asbestos during his employment with several different employers. He claimed against one employer, proving that its negligence materially contributed to his condition.

Question 27

What did the court decide regarding the apportionment of damages in Holtby v Brigham and Cowan (2000)?

Answer 27

The court held that damages should be apportioned according to the length of time the claimant was exposed to asbestos while working for each employer. It recognised the cumulative nature of the injury.

Question 28

Why is the concept of divisible injury important for both claimants and defendants?

Answer 28

For defendants, it determines the amount of damages they must pay. For claimants, it means they may need to sue multiple employers to recover the full extent of their damages.

Question 29

What challenges do claimants face when proving causation in mesothelioma cases?

Answer 29

Claimants often cannot prove which exposure to asbestos caused their mesothelioma, as multiple employers may have contributed to the exposure, leading to scientific uncertainty in establishing direct causation.

Question 30

How did Fairchild v Glenhaven Funeral Services Ltd [2003] address the issue of causation in mesothelioma cases?

Answer 30

The House of Lords allowed the claimants to rely on a material increase in risk approach, holding that each employer’s breach increased the claimant’s risk of harm, thereby imposing liability.

Question 31

What was the court’s ruling regarding liability for mesothelioma in Fairchild?

Answer 31

• In Fairchild, the court deemed mesothelioma an indivisible injury, holding that each employer was liable for the whole of the claimant’s harm, not just a portion based on their contribution to the risk.
• This is because mesothelioma does not develop over time according to the length of exposure to asbestos

Question 32

What significant change did the House of Lords make in Barker v Corus UK Ltd [2006] regarding liability for mesothelioma?

Answer 32

The court held that while mesothelioma itself is indivisible, the risk of mesothelioma is divisible, allowing for apportionment of liability among the defendants based on the risk they contributed.

Question 33

How did the Compensation Act 2006 change the legal landscape for claimants suffering from mesothelioma?

Answer 33

It restored the previous position by making defendants liable for the whole of the claimant’s harm, not just for the extent of their contribution to the risk, favoring claimants over defendants.
* Defendants found liable for causing mesothelioma are each liable for the WHOLE of the claimant’s harm, NOT just the extent of their contribution to the risk.

Question 34

What is the principle of indivisible injury in tort law?

Answer 34

Most injuries are classed as indivisible, meaning they cannot be divided up between multiple defendants.

Question 35

What is an example illustrating the principle of indivisible injury using Jack and Elise & Adrianna.

Answer 35

If Jack is injured in a road accident caused by two drivers, Elise and Adrianna, both of whom are negligent, he suffers a single injury (a broken leg). Jack is entitled to recover his damages in full from either driver.

Question 36

What is the legal position of the claimant when multiple defendants are liable for the same injury?

Answer 36

The claimant can sue any or all of the defendants and is entitled to recover the full amount of their loss from any one of them. They cannot recover damages more than once for the same injury.

Question 37

How does the Civil Liability (Contribution) Act 1978 apply to defendants found liable for the same damage?

Answer 37

• Under the Civil Liability (Contribution) Act 1978, if two or more people are responsible for the same damage, the court can apportion the damage between them based on each person’s share of responsibility.
• However, this apportionment only applies between the defendants and does not affect the total damages awarded to the claimant.

Question 38

In the scenario where C is awarded £20,000, with D1 found 90% to blame and D2 found 10% to blame, how does the claimant’s recovery work?

Answer 38

1. C can recover the full £20,000 from either D1 or D2.
2. If C enforces against D1 for the entire £20,000, D1 may seek a contribution from D2 for £2,000 (10% of the total damages).
3. If C enforces against D2 for the full £20,000, D2 may seek a contribution from D1 for £18,000 (90% of the total damages).

Question 38

What is the key difference between the indivisible injury principle and the case of Holtby?

Answer 38

• In Holtby, the court can divide up the damage so that each defendant is liable to the claimant only for the particular share of the damage which they caused.
• By contrast, where two or more defendants are liable for the same damage, each defendant is liable to the claimant in full.

Question 39

What problem of causation arises when a claimant suffers more than one injury?

Answer 39

The issue arises in determining how the injuries impact one another, especially when they occur consecutively and may affect the extent of damages.

Question 40

First, what is an example of unrelated injuries that do not cause specific problems of causation?

Answer 40

If a claimant slips on the stairs and breaks their wrist, then later is involved in a car accident and breaks their leg, these injuries are unrelated and do not impact one another.

Question 41

Describe the case of Performance Cars v Abraham [1962] 1 QB 33.

Answer 41

In this case, the defendant negligently collided with the claimant’s Rolls Royce, which needed a partial respray. However, the same part had been damaged in an earlier accident and would have required a respray regardless of the defendant’s actions.

Question 42

What did the Court of Appeal decide in Performance Cars v Abraham regarding the claimant’s damages?

Answer 42

The court held that the claimant could not claim the cost of the respray from the defendant in the second incident because the need for the respray already existed due to the earlier damage.

Question 43

How should a later defendant be liable when the claimant has already suffered damage?

Answer 43

A later defendant should be liable only to the extent that their actions make the claimant’s damage worse, not for damages that were already present.

Question 44

What is a ‘new intervening act’?

Answer 44

A new intervening act, or novus actus interveniens, refers to an action by a third party that breaks the chain of causation linking the original negligent act to the claimant’s damage.

Question 45

What is the significance of instinctive reactions of a third party in causation?

Answer 45

• Instinctive reactions of a third party do not break the chain of causation. For example, in Scott v Shepherd (1773), the defendant threw a lighted firework into a crowd, and the instinctive actions of two bystanders in throwing it away did not absolve the defendant of liability.

Question 46

How is the chain of causation likely to be broken?

Answer 46

Chain of causation is likely to be broken by a negligent action of a third party which the defendant could not have reasonably foreseen as a likely consequence of their negligence.

Question 47

In what case is a negligent intervention of a 3rd party demonstrated?

Answer 47

Knightley v Johns (1982): Defendant’s negligent driving caused his car to block exit of a busy tunnel. Police inspector took charge and ordered the claimant, a constable, to drive back against the traffic to close the tunnel. Claimant was struck by vehicle in tunnel and was injured.
* Court of Appeal found defendant was NOT liable as they could not have foreseen the act of the police inspector. This intervening act broke chain of causation.

Question 48

Compare the outcomes of Knightley v Johns and Rouse v Squires.

Answer 48

• In Knightley v Johns, the negligent action of a police inspector broke the chain of causation, absolving the defendant of liability.
• In contrast, in Rouse v Squires (1973), both the initial negligent driver and a subsequent negligent driver were held liable for the claimant’s death because it was foreseeable that other drivers might not be vigilant.

Question 49

What does the Civil Liability (Contribution) Act 1978 entail regarding multiple tortfeasors?

Answer 49

Under this Act, when multiple parties are liable for the same damage, the court can apportion liability between them. For example, in Rouse v Squires, both drivers A and B were held liable for Mr. Rouse’s death, and the court apportioned their liability according to their respective contributions to the accident.

Question 50

How does the recklessness or intentionality of a third party’s conduct affect the chain of causation? What is the authority?

Answer 50

The conduct of a third party that is reckless or intentional is more likely to break the chain of causation compared to mere negligence. This distinction emphasises the responsibility of the initial wrongdoer and the impact of subsequent actions.
* Authority for this is Lamb v Camden London Borough Council (1981)

Question 51

What was the outcome in the case of Lamb v Camden London Borough Council [1981]?

Answer 51

• In this case, the defendants negligently caused damage to the claimant’s house, which was left unoccupied during repairs. Squatters entered and caused further damage. The court held that the defendants were not liable for the squatters’ actions, as the squatters’ conduct was considered an intervening act.

Question 52

What was the significance of the case Stansbie v Troman [1948]?

Answer 52

• The defendant, a decorator, left a house unattended for two hours while he fetched wallpaper, leading to a theft of the claimant’s diamond bracelet.
• The Court of Appeal held the defendant liable, emphasising that he was negligent for not taking reasonable care to secure the house. The theft did not break the chain of causation due to the relationship between the parties and the defendant’s implied agreement to take care.

Question 53

How is the determination of whether the chain of causation has been broken often made?

Answer 53

Whether the chain of causation has been broken is typically a question of fact that depends on the court’s judgement of the circumstances in each particular case.
* Generally, if a defendant ought to have foreseen an action as a likely consequence of their negligence, the chain is less likely to be broken.

Question 54

What happens when a claimant receives negligent medical treatment after being injured?

Answer 54

Negligent medical treatment is unlikely to break the chain of causation. A defendant who negligently causes an injury should foresee the need for medical treatment, which inherently carries some risk of negligence. However, grossly negligent medical treatment could potentially break the chain.

Question 55

Describe the case of Rahman v Arearose [2001] and its implications.

Answer 55

• In Rahman v Arearose, the negligence of a hospital in treating the claimant did not break the chain of causation between the employer’s negligence and the claimant’s psychiatric injury.
• The employer remained liable even after the hospital’s negligence contributed to the injury.
• The court determined that the psychiatric problems were a divisible injury, awarding proportionate damages and apportioning liability between the employer and the hospital.

Question 56

When does the claimant do something after the defendant’s negligent act which causes the claimant to suffer further harm and therefore break the chain of causation?

Answer 56

To consitute and intervening act & break the chain of causation, the claimant’s act has to be entirely unreasonable in all the circumstances; otherwise the act will simply be a natural event and will NOT break chain.

Question 57

What case demonstrates this and what are its facts?

Answer 57

• McKew v Holland & Hannen & Cubitts (Scotland) Ltd [1969]
• In McKew, the defendant’s negligence weakened the claimant’s leg, causing it to give way. When the claimant descended a steep staircase without a handrail, his leg gave way again, leading to further injuries. The House of Lords held that the claimant acted unreasonably, thereby breaking the chain of causation.

Question 58

Compare McKew v Holland with Wieland v Cyril Lord Carpets Ltd [1969].

Answer 58

• In Wieland, the claimant injured her neck due to the defendant’s negligence and was fitted with a neck collar that made it hard to use her spectacles.
• She later fell down stairs and injured herself further. The court held that this did not break the chain of causation, as her actions were considered reasonable.

Question 59

In most cases, if a claimant acts in a careless manner instead of committing an intervening act, what will happen?

Answer 59

If a claimant acts carelessly but their actions do not break the chain of causation, the defendant may raise a defense of contributory negligence.
* If successful, this leads to a reduction in the claimant’s damages rather than a complete dismissal of liability, which would occur if the chain of causation were broken.

Question 60

Define Remoteness of Damage.

Answer 60

Remoteness of damage limits liability even if the defendant’s breach factually caused harm. The harm must be of a kind that was reasonably foreseeable to hold the defendant liable.

Question 61

What is the central principle established in The Wagon Mound (No. 1)?

Answer 61

This case introduced the reasonable foreseeability test for remoteness. If a reasonable person would not have foreseen the type of damage, the defendant is not liable.

Question 62

Explain the key takeaways from Hughes v Lord Advocate.

Answer 62

While the specific way an injury occurred (an explosion) was not foreseeable, the type of injury (burns) was foreseeable due to unattended lamps. Thus, the defendant was liable. This illustrates the “similar in type” rule.

Question 63

What is the “Similar in Type” rule?

Answer 63

The defendant is liable if the type of damage was reasonably foreseeable, even if the exact mechanism of injury was not. Hughes v Lord Advocate is a classic example.

Question 64

What happened in Tremain v Pike concerning remoteness?

Answer 64

A farm worker contracted a rare disease from rat urine. The court found the defendant not liable because that specific type of injury was not foreseeable, even though rat bites were.

Question 65

Explain the “Egg-shell Skull” rule.

Answer 65

The egg-shell skull rule states that the defendant is liable for the full extent of harm, even if the claimant’s pre-existing conditions make the harm worse than foreseeable for an ordinary person. This is often phrased as “you take your victim as you find them”.

Question 66

Explain the “Egg-shell Skull” rule using the Robinson v Post Office case.

Answer 66

The defendant was liable for the claimant’s severe reaction to an anti-tetanus injection, even though the reaction was unforeseeable. The defendant had to take the claimant as he found him, including his susceptibility to the reaction.

Question 67

What is Voluntary Assumption of Risk (Volenti non fit injuria)?

Answer 67

This is a complete defense where the defendant argues the claimant knowingly and willingly accepted the risk of harm. It’s difficult to prove and rarely succeeds.

Question 68

What must a defendant prove to succeed with the defense of Volenti?

Answer 68

The defendant must prove that the claimant:
* Had full knowledge of the nature and extent of the risk
* Willingly consented to accept that risk

Question 69

What was the outcome of Dann v Hamilton regarding Volenti?

Answer 69

A passenger knew the driver was drunk but still chose to ride. The court held that knowledge of the risk alone was insufficient to imply consent to the risk, and the defense of Volenti failed.

Question 70

How did Morris v Murray contrast with Dann v Hamilton?

Answer 70

In this case, the claimant helped a heavily intoxicated pilot prepare a plane for takeoff. The court considered the pilot’s drunkenness so extreme that the claimant must have accepted the risk, making Volenti applicable.

Question 71

How does Section 149 of the Road Traffic Act 1988 relate to Volenti?

Answer 71

This section makes any acceptance of risk by a passenger invalid in cases involving motor vehicles where passenger insurance is mandatory. The defense of Volenti cannot be used in such cases.

Question 72

Why does the defense of Volenti rarely succeed in cases involving employees?

Answer 72

Employees often face pressure to perform tasks, even risky ones, to keep their jobs. The lack of genuine free choice makes it difficult to argue they willingly consented to the risk. Smith v Baker exemplifies this.

Question 73

Describe the court’s stance on Volenti in rescue situations.

Answer 73

Courts are reluctant to apply Volenti to rescuers, recognizing they often act under a moral obligation. The defense is unlikely to succeed if the rescuer acted reasonably in response to danger caused by the defendant’s negligence.

Question 74

What is the defense of Illegality (ex turpi causa non oritur actio)?

Answer 74

This defense bars a claim if the claimant’s injury occurred while they were involved in illegal activity, and allowing the claim would be against public policy. The illegality must be substantial and directly related to the injury.

Question 75

Provide an example where the defense of Illegality would apply.

Answer 75

If two burglars are fleeing a crime scene and one is injured due to the other’s negligent driving, the injured party cannot sue. This is illustrated in Ashton v Turner.

Question 76

Explain the outcome of Pitts v Hunt in relation to the defense of Illegality.

Answer 76

An injured pillion passenger on a motorcycle couldn’t sue as he encouraged the rider’s reckless and illegal driving. The court found the injury arose directly from their joint illegal activity, making the defense of Illegality applicable.

Question 77

What is Contributory Negligence?

Answer 77

Contributory negligence is a partial defense that reduces damages if the claimant’s own carelessness contributed to their injury. It involves two elements: the claimant’s carelessness and that carelessness contributing to their damage.

Question 78

How does the Law Reform (Contributory Negligence) Act 1945 affect damages in cases of contributory negligence?

Answer 78

The Act allows for reducing damages proportionally based on the claimant’s share of responsibility, rather than barring the claim entirely. The court aims for a “just and equitable” reduction.

Question 79

Explain the typical reductions applied in Froom v Butcher for failure to wear a seatbelt.

Answer 79

• 25% reduction if injuries would have been avoided with a seatbelt
• 15% reduction if injuries would have been less severe
• 0% reduction if a seatbelt wouldn’t have made a difference

Question 80

What factors does the court consider when reducing damages for contributory negligence?

Answer 80

The court considers:
* Culpability: the relative blameworthiness of each party
* Causation: the extent to which the claimant’s carelessness contributed to their loss

Question 81

What is the key point to remember about contributory negligence and the cause of an accident?

Answer 81

The focus is on the contribution to the damage, not necessarily the cause of the accident itself. Even if the defendant is solely responsible for the accident, the claimant’s actions can still reduce their damages.

Question 82

How does the court assess contributory negligence in cases involving children?

Answer 82

The court compares the child’s actions to those of a reasonable child of the same age. Gough v Thorne is the leading case in this area. A finding of contributory negligence in young children is rare.

Question 83

Are parents’ negligence considered when assessing contributory negligence in a child’s claim?

Answer 83

No, a child is not identified with their parents’ negligence. The child’s damages aren’t reduced due to the parents’ actions. However, the defendant might seek contribution from the parents under the Civil Liability (Contribution) Act 1978.

Question 84

How are rescuers typically treated regarding contributory negligence?

Answer 84

Courts are reluctant to find rescuers contributorily negligent, considering the emergency context. Only a “wholly unreasonable disregard” for their own safety would likely lead to a reduction in damages. Baker v TE Hopkins highlights this.

Question 85

What is the principle related to “dilemma cases” and contributory negligence?

Answer 85

A claimant forced into a dangerous situation due to the defendant’s negligence will not be contributorily negligent if their actions were a reasonable response to the danger, even if, in hindsight, other options were safer. Jones v Boyce demonstrates this.

Question 86

What are some factors courts consider when assessing contributory negligence in cases involving employees?

Answer 86

Courts consider the work environment. Noisy, repetitive, or dull work might lead to reduced awareness, making them less likely to find an employee contributorily negligent compared to, say, an office worker.