Negligence: Causation Flashcards
A woman attended the Accident and Emergency department of her local hospital complaining of a severe headache. Due to an administrative error she was not seen by a doctor for over seven hours. While waiting to be seen the woman’s condition severely deteriorated. The woman now suffers from a permanent disability due to the condition that was causing the severe headache.
The hospital have admitted a breach of the duty of care that it owed the woman. However, the hospital are disputing liability on the basis of causation.
The woman’s solicitor has obtained two expert medical reports. The most favourable report states that there was a 50 per cent chance that the woman’s permanent disability would have been prevented if the hospital had not breached its duty of care.
What advice should the solicitor give the woman?
A- The woman’s claim will be successful because there is not a break in the chain of causation between the defendant’s breach and the claimant’s permanent injury.
B- The woman’s claim will be successful but her damages will be reduced by 50 per cent.
C- The woman’s claim will be successful because she will be able to rely on the ‘but for’ test.
D- The woman’s claim will be unsuccessful because her permanent disability is not a reasonably foreseeable consequence of the defendant’s breach.
E- The woman’s claim will be unsuccessful because she will not be able to prove factual causation.
E is correct because the woman must prove factual causation on the balance of probabilities. The medical evidence suggests that there was a 50 per cent chance that her permanent disability would have been avoided. Therefore she will be unable to prove that it was more likely than not that her permanent disability would have been avoided ‘but for’ the defendant’s breach (Hotson v East Berkshire AHA [1987]. B is therefore wrong because this ‘all or nothing’ approach on factual causation would mean that the woman would receive no damages.
C is wrong because the ‘but for’ test would not be satisfied on the facts.
A is wrong because the claim would fail on factual causation so it is irrelevant that there was no intervening act. D is wrong for the same reason i.e. remoteness is irrelevant but also because her harm would be reasonably foreseeable.
A researcher at the Liverpool Research Institute for Tropical Diseases has worked there for the last 18 years.
They have recently been diagnosed with a progressive lung condition.
The research involved tropical lung disease. In their own time and for the last 20 years, the researcher had been spending time on archeological digs, mostly deep underground Egyptian tombs.
It now transpires that the protective equipment the Institute provided was not properly checked and proved ineffective in forming an adequate chemical barrier.
It also transpires that many Egyptologists are suffering with diminished lung capacity as a result of exposure to a spore located in deep underground tombs and that it was not possible to avoid such exposure.
Medical evidence cannot determine whether the lung condition is the result of lack of protective equipment or from the spore.
Which of the approaches to factual causation in negligence best describes the one the court would adopt?
A-The material contribution to harm approach
B-The material increase in risk approach
C-The balance of probabilities approach
D-The but-for test approach
E-The contribution between tortfeasors approach
Option A is the correct answer. Following Bonnington the researcher will be able to show that exposure at work materially contributed to their disease.
Option B is wrong. The material increase in risk approach applies where scientific uncertainty exists which is not the case here.
Option C is wrong. The balance of probabilities is about the burden of proof not the test for factual causation.
Option D is wrong. The but-for test would not yield a result in these circumstances and Bonnington would be followed.
Option E is wrong. This is not about the test for factual causation but about contribution between tortfeasors.
Bonnington:
Thus the Bonnington test ‘… is to be applied where the court is satisfied on scientific evidence that the exposure for which the defendant is responsible has in fact contributed to the injury.
A woman who had asthma was injured while on a tour of a beer brewery by an emission of fumes from a tank holding cleaning fluid. The fumes caused the woman to have a severe asthma attack which led to lung damage.
The woman has medical evidence following her admission to hospital on the same day that she inhaled the fumes. This shows that the woman had existing lung damage at the time of the brewery tour but that woman has additional lung damage due to the inhalation of the cleaning fluid fumes.
The brewery have admitted that they owed a duty of care to the woman and that the emission of the fumes occurred due to a lack of reasonable care on their part. However, the brewery are denying liability to the woman on the basis of causation because the other visitors on the brewery tour who inhaled the fumes did not suffer any injuries. The brewery have relied on expert evidence that states that the cleaning fluid fumes would not cause injuries to a person who was not suffering from asthma.
What advice should the woman’s solicitor give on the likely outcome of the woman’s claim in tort against the brewery?
A-The woman’s claim is unlikely to be successful because a reasonable person with asthma would not have visited the brewery.
B-The woman’s claim is likely to succeed and she will be compensated for the additional lung damage.
C-The woman’s claim is unlikely to succeed because the fact that other visitors did not suffer any injuries demonstrates that the cleaning fluid fumes were not the factual cause of her injuries.
D-The woman’s claim is likely to succeed and she will be compensated for both her existing lung damage and the additional lung damage.
E-The woman’s claim is unlikely to succeed because the fact that other visitors did not suffer any injuries demonstrates that the woman’s lung damage is too remote.
B is the correct answer. The woman is likely to be successful in demonstrating causation of the additional lung damage but the brewery are not liable to pay compensation for the existing lung damage. D is therefore wrong.
A is wrong as there is nothing to suggest that the woman’s actions in visiting the brewery are entirely unreasonable so as to break the chain of causation and make it likely that her claim would be unsuccessful (McKew v Holland [1969]).
C is wrong because the woman can rely on her medical evidence to demonstrate ‘but for’ the brewery’s breach, the woman would not have suffered the additional lung damage. The brewery’s expert evidence on the effect of the inhalation of the fumes on people who do not have asthma is not relevant to the woman’s claim.
E is wrong because the woman can rely on the ‘egg-shell skull’ rule (Robinson v Post Office [1974]) and the brewery must take their victim as they find them . The woman suffers from a particular susceptibility to lung damage because of her asthma. She can recover compensation for her additional lung damage even if lung damage to a person without asthma is not foreseeable.
Which statement best describes the basic test for remoteness in negligence?
A-The way in which the harm was suffered by the claimant must be reasonably foreseeable.
B-The amount of the harm suffered by the claimant must be reasonably foreseeable.
C-The harm suffered by the claimant must be a direct result of the defendant’s breach of duty.
D-The risk of harm suffered by the claimant must be reasonably foreseeable.
E-The type of harm suffered by the claimant must be reasonably foreseeable.
E is the correct answer. This correctly states the basic test from The Wagon Mound.
A is wrong because, under the similar in type proviso to the basic rule, the way in which the harm was suffered by the claimant does not need to be reasonably foreseeable.
B is wrong, because, under the egg-shell skull proviso to the basic rule, the extent of the harm suffered by the claimant does not need to be reasonably foreseeable.
C is wrong because this is the test for remoteness from Re Polemis, and applies to intentional torts such as trespass to land.
D is wrong because it is the harm and not the risk of harm that needs to be reasonably foreseeable. Risk is a factor in determining breach of duty.
The driver of a lorry fails to give way to a van and crashes into it.
The driver of the van suffers whiplash and trauma to the spine and the van is written off. The van driver was driving to an auction house and was carrying a family heirloom: a painting by an Italian Renaissance master, estimated to reach £300,000 at auction. The painting is destroyed in the crash.
Can the van driver recover for the loss of the painting in negligence?
A-Yes because the manner in which the accident occurred was foreseeable.
B-Yes because the damage is not too remote.
C-No because the extent of the damage was not foreseeable.
D-No because it was not foreseeable there would be a valuable painting in an ordinary van.
E-No because the chain of causation is broken by transporting such an expensive item.
Option B is the correct answer. Damage to property was foreseeable and satisfies the Wagon Mound No. 1 test. The ‘egg-shell skull rule’ also applies as the fact that the painting was of high value would not make the loss too remote. Once the type of damage is deemed foreseeable the extent of it does not have to be.
Option A is wrong because the question is not about the manner of the accident but the amount that is recoverable ie. the extent of the damage. The egg-shell skull rule applies.
Option C is wrong because the extent of the damage does not have to be foreseeable (similar kind rule) and the egg-shell skull rule applies.
Option D is wrong because the only thing that needs to be foreseeable is the type of damage (Wagon Mound No 1).
Option E is wrong because there is no actus novus by the claimant as the claimant’s act was not wholly unreasonable.
A mother and her child, aged 6 years, had just left the child’s private school and they were walking along the pavement next to a busy main road. The child was unrestrained and her mother was not holding her hand. Suddenly, the child caught sight of her friend across the road and without warning ran across the road and into the path of an oncoming car. The car was being driven by the defendant and was exceeding the speed limit. The defendant struck the child and seriously injured her. Her mother was unharmed.
When acting for the defendant driver, his insurers want to know which one of the following arguments would be best in the circumstances so as to either defeat or reduce the child’s claim?
A-The mother is contributorily negligent, in that she has failed to take care for her child’s safety and thus contributed to the accident and child’s harm.
B-The mother should be included as a joint tortfeasor, as an additional defendant, as she has contributed to the harm suffered by her child.
C-The child is contributorily negligent, in that she has failed to take care for her own safety and thus contributed to her harm.
D-The child should be included as a joint tortfeasor, as an additional defendant, as she has failed to take care for her own safety and thus contributed to her harm.
E-The mother has voluntarily assumed the risk for her child’s injury, as she knew about the risk in question and voluntarily agreed to that risk; with the result that the child’s claim is defeated.
Option B is correct. This is the best answer because the mother also owes a duty to her child and has left the child unrestrained next to a busy road. The mother can therefore be added as a joint tortfeasor / additional defendant, so as to reduce the amount payable by the defendant and his insurers to the child. This is in accordance with the Civil Liability (Contribution) Act 1978.
Options A and E are both wrong because only the claimant’s behaviour, namely the behaviour of the child herself, can be targeted with such defences.
Option C is a correct statement of what is possible, however, it is not the best answer as the child is only 6 years of age and will therefore be judged against the standard of a reasonable 6 year old. Thus a reduction for contributory negligence is either unlikely to be granted at all or alternatively, if granted, likely to be very small (particularly when compared to the potential blame under option B that might be apportioned to the mother).
Option D is wrong. The child is the claimant and will not be added as a joint tortfeasor / additional defendant to the action.
In reality options B and C could be combined, however, the question simply asked for the best option.
A client was driving carefully down the main high street in town when a driver of a lorry sped out from a side road and collided with the client’s car. The client’s head violently hit the steering wheel which resulted in him having a nasty head injury.
It is accepted that the driver owed a duty of care to the client and that the driver breached the duty by driving carelessly.
What test must the client meet in order to establish factual causation?
A-That the driver’s careless driving was the sole cause of the head injury.
B-That the head injury was almost certainly caused by the driver’s careless driving.
C-That driver’s careless driving was a cause of the head injury.
D-That the head injury was a reasonably foreseeable consequence of the driver’s careless driving.
E-That the head injury is the kind of injury which would naturally result from the driver’s careless driving.
Option C is correct because it is necessary for a defendant’s breach to be a cause of the claimant’s harm. Barnett v Chelsea and Kensington Hospital Management Committee [1969] 1 QB 428 and Hotson v East Berkshire Area Health Authority [1987] 2 All ER 909.
Option A is wrong because it is only necessary for a defendant’s breach to be a cause of the claimant’s harm; it does not have to be the sole cause of the harm.
Option B is wrong because it is only necessary for the breach to be the cause of the harm on the balance of probabilities. The claimant must show it is more likely than not that the breach caused the harm.
Option D is wrong because this is the test of remoteness and irrelevant to factual causation.
Option E is wrong because this is not a test that is applied in a negligence claim.
A solicitor acts for a client who was injured while a passenger on a bus. The client was travelling in the bus when a cyclist pulled out of a side road into the path of the bus. The client says that no collision in fact occurred but the client was thrown sideways when the bus driver had to swerve quickly to avoid the cyclist. This caused the client to injure their head as it hit the inside window of the bus.
The Police Accident Report confirms that the cyclist had ignored a ‘Stop’ sign and that the bus was travelling at 40 mile per hour on a road where the speed limit was 30 miles per hour. Expert evidence confirms that, if the bus driver had been driving within the speed limit, then they would not have had to swerve to avoid the cyclist.
Which of the following statements best explains how the client will be able to show that the breach of duty by the bus driver is a factual cause of their injury?
A-Because but for the breach of duty by the bus driver, the client would not have been injured
B-Because but for the breach of duty by the cyclist, the client would not have been injured.
C-Because the breach of duty by the bus driver made a material contribution to the injuries suffered by the client.
D-Because the actions of the cyclist should have been reasonably foreseeable by the bus driver.
E-Because the injury suffered by the client is a reasonably foreseeable consequence of the bus driver’s breach of duty.
Option C is correct – it states the correct test for factual causation where there are two separate tortious acts, which simultaneously cause damage to the client.
Option A is wrong because this is a case of multiple causes. Here there are two separate tortious acts, which simultaneously cause damage to the client. The client’s injury was caused by the breach of duty by the bus driver but also by the breach of duty by the cyclist. Satisfying the ‘but for’ test in this situation would be problematic because the bus driver could allege that but for the actions of the cyclist they would not have had to swerve at all. Equally, the cyclist could allege that, but for the fact that the bus driver was speeding, their pulling out of the junction would not have injured the client.
Option
B is therefore wrong for the same reason (although it focuses on the breach by the cyclist and not the bus driver).
Option D is wrong because it considers whether the actions of the cyclist may have broken the chain of causation and not factual causation.
Option E is wrong because it considers the question of remoteness rather than factual causation
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