NEGLIGENCE: CAUSATION AND DEFENCES Flashcards
What is the but for test used for in causation? State authority.
- it is the first step of establishing factual causation
- e.g but for D’s act would C have suffered harm?
- is yes, harm would’ve occurred regardless of D’s act
-if no, then established factual causation -
Barnett v Chelsea & Kensington hospital management committee
(Barnett would’ve died of arsenic poisoning even if doctor saw him)
What is factual causation?
- uses balance of probabilities to establish if D is in fact liable for damage
- ie more likely than not
If the but for test doesn’t work, then what should you do to establish causation? State authority.
- often multiple cause cases make but for test redundant
- multiple cause case need not show D’s breach of duty was only cause or even main cause
- simply show it materially contributed to damage
- Bonnington Castings Ltd v Wardlaw
State a case where D pays damages reflecting only extent to their contribution to damage?
-Holtby v Brigham & Cowan (Hull) Ltd [2000]
- C developed asbestosis due o dust at work but disease developed over several years at different employers
-all employers divided amount they paid according to duration of time C worked with them
- so where claimant has suffered damage already, later D’s should only be liable to extent of where they made damage worse
What does the Civil Liability contribution act 1978 say?
- gives the court the power to apportion the damage between several defendants if there are more than two
- if all D’s are found liable then one of those Ds can seek contribution from another
- Fitzgerald v Lane
What are the three steps to establish legal causation?
- remoteness of the damage? How closely is it associated with D
- reasonably foreseeable?
- any intervening acts?
What is the wagon mound rule for remoteness of damage?
- was the damage reasonably foreseeable for D
- in wagon mound C’s whard burned down to an oil spill
- which was not foreseeable by D due to oil not catching fire on water
- it wasn’t reasonably foreseeable for there to have been fire damage
There are two conditions for remoteness. What are they?
1) the ‘similar in type’ rule
2) the ‘egg shell skull rule’
Explain the similar in type rule. State an authority.
- provided the type of damage was reasonably foreseeable, D will still be liable even if precise way it happened is unforeseeable
- Hughes v Lord Advocate
- D’s employers left paraffin lamps unattended
- injury by burning foreseeable
- what was unforeseeable was that the lamps would be knocked down a hole and explode
Explain the egg shell skull rule. State an authority.
- provided the type of harm was reasonably foreseeable, the D is still liable for full extent of harm, even if extent is not foreseeable
- take victim as you find them
- Robinson v Post Office [1974]
- C suffered leg injury due to D’s negligence
- doctor gave anti letanus jab
- C suffered from allergic reaction
- C sued D for all of injuries
What are the rules for breaking the chain of causation for a third party? What counts as an intervening act?
- instinctive act by third part doesn’t break chain of causation (Scott v Shephard)
-negligent act of third party will break chain of causation GIVEN that it is an unforeseeable consequence of D’s own negligence (Knightley v Jones) - a third party will not break chain of causation if D is under legal duty to prevent that act (Stansbie v Troman)
What are the rules for break of causation due to the claimant?
- a claimants own act may be an intervening act if he acts unreasonably (Mckew v Holland & Hannen & Cubitts)
Explain the voluntary assumption of risk (volenti) defence. This is where D is not liable and there is a full defence.
- for it to succeed, D must establish that:
1) C had full knowledge and extent of nature of risk
2) that C willingly consented to risk of being injured due to D’s negligence
See Morris v Murray
-the drunkenness of pilot was so extreme that C seemed to have accepted risk of his negligence
NOTE this does not apply to the Road Traffic Act 1988 s149.
- any acceptance of risk by passenger is invalid
- volenti cannot be used as defence
Why does volenti usually fail amongst employees and employers?
- an employee acts under a duty and therefore has no real freedom of choice when carrying our dangerous task asked of employer
- they could risk losing job
- Smith v Baker
When does volenti not apply to rescuers?
- they were acting to rescue persons or property endangered by the defendant’s negligence;
- they were acting under a compelling legal, social or moral duty; and
- their conduct in all the circumstances was reasonable and a natural and probable consequence of the defendant’s negligence
- Haynes v Harwood
