Negligence: Causation Flashcards
what are the key questions to establish causation?
o As a matter of fact, was D’s negligence a cause of C’s harm?
o Even if so, was there any intervening act?
o In the alternative, was the damage too remote?
what is factual causation?
the causal link between the braech and the loss
who needs to prove factual causation?
the claimant
what is the test for factual causation?
the ‘but for’ test i.e.
o But for the defendant’s breach, would the harm to the claimant have occurred?
o If the answer is no – the harm would not have occurred were it not for the defendant’s breach – then causation is satisfied.
if there are multiple potential causes of the claimant’s harm, then the claimant must prove that D’s bread ‘materially contributed’ to the damage
what is causation?
did the damage occur due to D’s actions?
what is the standard of proof for factual causation?
Give an example.
C must prove on the balance of probabilities that D’s negligence caused their harm i.e. there is more than a 50% chance the negligence caused the harm
- Hotson v East Berkshire Area Health Authority (1987) there was a 75% chance that C’s medical condition would have occurred anyway. Therefore, causation was not established.
- Wilsher v Essex Area Health Authority (1988) a baby was blinded following negligent medical treatment. There were 5 possible reasons (only one of which was D’s actions) the baby could have been blinded. Therefore, it couldn’t be proven that D’s breach of duty caused harm on the balance of probabilities. There was no causation and D was not liable.
what is the material contribution test?
where D has breached their duty and there is more than one possible cause of harm attributable to D then the court will apply the material contribution test i.e. the breach of duty must have materially contributed to C’s harm
when does the ‘material contribution test’ apply?
This only applies where there are multiple simultaneous causes of C’s harm
give an example of the ‘material contribution’ test
- Bonnington Castings Ltd v Wardlaw (1956) C was exposed to two types of dust. ‘Guilty dust’ which D was in breach of duty for and ‘innocent dust’ which D wasn’t in breach of duty for. C suffered lung disease from exposure to the dust, however they couldn’t prove which dust was responsible. In this case, the Court held that the guilty dust made a ‘material contribution’ to C’s lung disease so C’s claim succeeded.
This case would have failed on the ‘but for’ test
o This test couldn’t have been used in Wilsher v Essex Area Health Authority (1988) because D’s actions were only one of the five possibilities for C’s harm.
what is the ‘material risk’ approach and when is it used? Give an example.
this is limited to cases of scientific uncertainty i.e. mesothelioma
if D’s breach materially increased the risk of C’s harm, then there will be causation and they will be liable in negligence
McGhee v National Coal Board (1973) > there were two types of dust. C couldn’t prove that D’s breach had contributed to C’s dermatitis. The court found D liable on the basis that the breach had materially increased the risk of D’s dermatitis.
re: material contribution
what is a divisible injury? Give an example.
an injury where the defendant’s contribution to the injury can be apportioned
asbestosis is known to be cumulative (i.e. greater exposure, greater the injury). Therefore, if C worked for 3 employers and was exposed to asbestos on each occasion, each employer’s liability could be apportioned.
re: material contribution
what is indivisible injury? Give an example.
more common than divisible injury
where the condition can be caused by single exposure and it is medically impossible to say which exposure caused the condition
in contrast to asbestosis, mesothelioma (a cancer caused from asbestos exposure) is not cumulative. If C worked for three employers, it would not be possible to say which was responsible for C contracting the disease.
i.e. a broken leg is a single injury. This could not be apportioned.
the court may apportion a % of blame, but this is different to apportioning liability. Apportionment of blame does not prevent the C from recovering damages in full from 1 D.
what is the position of C has already suffered damage/injury, and a second D causes more damage?
Give an example
- If C or his property has already suffered damage, a second D who causes further injury / damage is only liable to the extent they have made C’s damage worse
- Performance Cars v Abraham (1962) > D collided with C’s Rolls Royce, resulting in requiring a re-spray. However, the Rolls Royce had been damaged in an earlier accident and already needed a re-spray. The Court held that C couldn’t claim for the cost of the re-spray from the second D because his actions hadn’t caused the need for the re-spray.
re: material contribution
what happens with regard to damages in relation to divisible and indivisible injury?
Divisible > because liability is apportioned between the Ds, damages will be apportioned accordingly.
Indivisible > the claimant can recover full damages from one D. The court may apportion blame, but this does not prevent the claimant from recovering the full damages from 1D (i.e. D1 = 10% to blame, D2 = 90% to blame. C awarded £20k damages. C can sue D1 for full £20k. D1 could then seek a 90% contribution from D2)
re: material contribution
why is it important to determine from the outset if it is a divisible / indivisible injury?
if the injury is divisible, the claimant would need to sue all of the defendants to recover damages.
Whereas, with indivisible injury, the claimant can sue any of the defendants and recover in full from them because they have ‘materially contributed’ to the injury and liability cannot be apportioned.
