Negligence - causation

Question 1

Factual causation (2)

Answer 1

• ‘But for’ D’s actions, C would not have suffered harm
• Davis v Bunn
  o But for D shouting warning when stood on roadside, the accident could have been avoided
• Focus is on necessary conditions of a harmful outcome
• Barnett v Chelsea
  o Poisoned with arsenic. Doctor turned him away. Even if doctor had treated him, the poison would still have killed him before going to A&E – doctor not liable

Question 2

Legal causation (3)

Answer 2

• Who is the wrongdoer in the situation
• Baker v Willoughby
  o Judicial discretion
  o C injured in car accident. After accident but before trial, C was shot in leg in armed robbery of workplace. D tried to argue should be relieved of liability due to injuries sustained after the car accident. Court still held D liable
• Stapley v Gypsum Mines
  o Search for the ‘real’ ‘direct’ or ‘effective’ cause – ascription of responsibility
• Rahman v Arearose
  o Just apportionment of responsibility for harm
  o D1 fails to protect C from attack in workplace – suffers PTSD
  o D2 carries out surgery on C negligently
  o D1 bore 25% responsibility for C’s PTSD, D2 bore 75% responsibility

Question 3

NAI - break in causal chain (2)

Answer 3

• The Oropesa
  o Is there a direct relationship between D’s carelessness and C’s injury or is there a new cause which disturbs the sequence of events and breaks the chain of causation?
  o NAI is something unwarrantable, unreasonable, extraneous, extrinsic, ultraneous
• Hart and Honoré
  o Judges have to exercise discretion as doctrine of NAI is cloudy

Question 4

Liability for third party conduct (3)

Answer 4

• Home Office v Dorset yacht
  o Third party conduct must be ‘very likely to happen’
• Lamb v Camden
  o Third party conduct must have a ‘degree of likelihood amounting almost to inevitability
• Ward v Cannock Chase
  o ‘Virtually certain’
• Court rarely hold people liable for the conduct of third parties

Question 5

Occasioning harm - set scene for another to do harm (1)

Answer 5

• Stansbie v Troman
  o Decorator left alone in house and was told by C to lock house when leaving, D failed to lock house, house was burgled by third party
  o D was held liable for occasioning harm – the harm was reasonably foreseeable

Question 6

Proof of causation (6)

Answer 6

• Bonnington Castings
  o C must show that D made a material contribution to damage
• McGhee
  o Pro-claimant development
  o C must show that D (i) breached the duty owed and (ii) materially increased the risk to which C was exposed
  o Loss spreading – In McGhee, D was a nationalised industry with a deep pocket. By holding coal board liable meant could easily compensate the individual as the coal board is funded by taxpayer so it is able to spread loss across society as a whole meaning the loss was less noticeable
• Wilsher
  o Pro-defendant return to traditionalism
  o Caution on balance of probabilities – uneasy extending McGhee into medical cases
• Fairchild
  o Applied McGhee – pro-claimant development
  o Where D (i) breaches duty owed to C and brings about (ii) a material increase in risk, liability can be imposed on D for (iii) the full loss
  o Employer may only be responsible for small proportion of asbestos exposure but would be sued full amount – is this just?
• Barker v Corus
  o Pro-defendant retrenchment
  o Narrowing of law – consider type of asbestos, duration of exposure, intensity of exposure
• Compensation Act 2006 s3(1)
  o Pro-claimant developments solidified in statute by parliament
  o A ‘responsible person’ (i.e. a person who owed a duty to C) is liable for all relevant harm (even if C has been exposed to asbestos by others)
  o Return to Fairchild – nay past employers are held liable even if exposure was by different past employer – no longer have to sue each individual employer

Question 7

Critical commentary for causation (1)

Answer 7

• Atiyah
  o Judges exhibit sympathy to claimants when determining causal questions