Negligence - Causation and Defences Flashcards
To succeed in a claim for negligence the claimant must demonstrate that the breach by the defendant caused the damage.
Which ONE OR MORE of the following statements is/are TRUE?
A. There must be an unbroken chain of causation.
B. There may be more than one cause of damage.
C. If the damage would have happened in any event, even without the defendant’s breach, there will be no liability on the defendant.
D. A defendant can claim that an intervening event is the cause of the damage.
Well done. All the statements are true. It is a question of fact whether the damage complained of by the claimant is the result of the defendant’s breach of duty. There should be an unbroken chain of causation.
A defendant negligently caused an accident in a tunnel. A police inspector took charge and ordered a police motor cyclist to ride against the flow of traffic to the end of the tunnel to close it. The motorcyclist came into collision with the claimant’s oncoming car.
Is it TRUE OR FALSE that the defendant would be liable for the claimant’s injuries?
True
False
The statement is false. The defendant would not be liable to the claimant. This sequence of events is not a natural and probable consequence of the defendant’s negligence. The conduct of the police inspector is not reasonably foreseeable by the defendant. This would, therefore, be an intervening act that would break the chain of causation between the defendant’s breach and the claimant’s injuries. (These facts are based on the case of Rouse v Squires [1973]).
Damage caused by the defendant’s negligence is not recoverable if it is too remote a consequence of the defendant’s act.
Which of ONE the following BEST expresses the test for remoteness of damage in negligence?
A. The claimant’s damage must be reasonably foreseeable.
B. The claimant’s damage must be a direct consequence of the defendant’s act.
C. The defendant must have foreseen the damage likely to be caused.
D. The defendant must be at fault in causing the harm.
the correct answer is A. The test for remoteness of damage in negligence is that the claimant’s damage must be reasonably foreseeable. In the tort of negligence, it is not sufficient that the claimant’s damage was a direct consequence of the defendant’s act. The damage must also be reasonably foreseeable. The test is an objective one, so it does not depend on what the defendant foresaw. It is true to say that the defendant in a negligence claim must be at fault, but that is not the test for remoteness of damage.
Is the following statement TRUE OR FALSE?
The fact that the precise manner in which the damage was caused was not reasonably foreseeable does not necessarily mean that the damage was not foreseeable.
True
False
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Well done - the statement is true. The precise manner in which the damage was caused need not be reasonably foreseeable. See Hughes v Lord Advocate [1963].
Is the following statement TRUE OR FALSE?
The defendant is only liable for the extent of the injury which the reasonable man would have suffered. If the claimant is particularly sensitive and this means that he suffers greater loss, the defendant is not liable for this ‘extra’ loss even though the type of injury was reasonably foreseeable.
True
False
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You are correct - the statement is false. Provided the type of loss is reasonably foreseeable, the defendant is liable for the full extent of the loss even though the precise extent was not foreseeable. This is known as the egg-shell skull rule.
Which ONE OR MORE of the following is or are TRUE?
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a. A claimant will always have their damages reduced if the defendant can show the claimant has failed to take care for their own safety.
b. The court, at a defendant’s request, will always consider whether the claimant’s own lack of care has contributed to their injuries.
c. Contributory negligence is governed by statute.
d. Contributory negligence requires a causal link between the claimant’s carelessness and the actual cause of the accident.
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You are right. B and C are true.
A is false. Damages will not always be reduced. For example, there must be a causal link with the harm suffered.
B is true. The court will always consider this.
C is true. The relevant statute is the Law Reform (Contributory Negligence) Act 1945.
D is false. There must be a link between the carelessness of the claimant and the harm the claimant has suffered.
Which ONE of the following BEST describes the defence of contributory negligence?
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A. The claimant fell below a reasonable standard of care.
B. A third party was partly to blame for the claimant’s harm
C. The claimant’s lack of care for their own safety contributed to the harm which they suffered.
Correct answer
D. The defendant can recover a contribution from someone else whose negligence contributed to the harm suffered by the claimant.
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Well done. The correct answer is C. The statement which best describes the defence of contributory negligence is:
The claimant’s lack of care for their own safety contributed to the harm which they suffered
It is not enough to show that the claimant fell below a reasonable standard of care. The claimant’s lack of care must also have contributed to the harm which they suffered.
Brian was riding his motor bike without wearing a crash helmet when he was involved in an accident wholly caused by the negligence of Alan. Brian suffered a broken leg.
Is it TRUE OR FALSE that Brian’s damages will be reduced because of his contributory negligence?
True
False
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You are right - the statement is false. Brian’s damages will not be reduced in this case. Although he did fail to take reasonable care for his own safety by not wearing a crash helmet his negligence did not contribute towards causing the injury which he suffered.
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.
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Well done. 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].
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 claimant suffered a badly broken arm while driving a motorbike. The defendant was driving a car and pulled out of side road into the path of the claimant’s motorbike. The claimant feared that the car would hit their motorbike. In order to avoid this, they swerved quickly and lost control of the motorbike. They broke their arm in the falling from the motorbike. In fact, the defendant car driver managed to swerve around the claimant’s motorbike and avoided a collision.
Which of the following statements best explains how the claimant will be able to show that the fact that they fell off the motorbike did not act as an intervening act that broke the chain of causation?
A. Because the claimant’s act was entirely reasonable in the circumstances that they were in at the time.
B. Because the claimant’s act ought to have been foreseen by the defendant as a likely consequence of their negligence.
C. Because the claimant’s act caused an injury that was reasonably foreseeable.
D. Because the claimant’s act caused an injury of a type that was reasonably foreseeable, even if the precise way it happened was not foreseeable.
E. Because the claimant’s act caused an injury of a type that was reasonably foreseeable, even if the precise extent of the injury was not foreseeable.
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Well done. Option A is correct – the test that is applied for when the act of the claimant themselves may be an intervening act and break the chain of causation is whether their act was entirely reasonable in the circumstances that they were in at the time.
Option B is wrong as it is the test that is applied when the negligent act of a third party may break the chain of causation.
Option C is wrong as this is the basic rule for remoteness of damage from The Wagon Mound.
Option D is incorrect as this is the ‘similar in type’ rule for remoteness.
Option E is incorrect as this is the ‘egg-shell skull’ rule for remoteness.
A worker suffers a minor cut to his hand in an accident at work caused by his employer’s negligence. The worker has a pre-existing medical condition, of which his employer is unaware, which means his injury becomes more serious as he bleeds profusely and requires treatment in hospital. Unfortunately, the doctor treating him makes a grossly negligent error by administering an incorrect blood clotting drug. As a result, the worker becomes seriously ill and requires a lengthy period of hospitalization.
Which of the following statements best describes whether the worker could recover damages for the harm he has suffered from his employer?
A. The worker could only recover damages for his minor hand injury as the employer is not liable for any worsening of his condition caused by a pre-existing condition.
B. The worker could only recover damages for his minor hand injury and the worsening of this caused by his pre-existing condition as the employer must take the worker as he finds him. The worker would have to bring a claim against the doctor for the consequences of his error.
C. The worker could only recover damages for his minor hand injury and the worsening of this caused by his pre-existing condition as the employer must take the worker as he finds him. The doctor’s mistake is likely to break the chain of causation meaning the employer would not be responsible for the serious illness and period of hospitalisation.
D. The worker could only recover damages for his minor hand injury as he is partially responsible for the other harm he suffers because he has not told his employer about his existing medical condition.
E. The worker could only recover damages for his minor hand injury as the other harm he suffers is not reasonably foreseeable and so is too remote.
Feedback
Well done. Option C is the correct answer because the court would apply the rules on factual and legal causation. But for the employer’s negligence the worker would not have suffered any of these injuries (Barnett v Chelsea & Kensington Hospital [1969]. It does not matter that the injuries are more severe due to a pre-existing condition due to the egg-shell skull rule which says the employer must take the worker as he finds him. Whilst medical treatment and a possible medical error are foreseeable, the employer is unlikely to be liable for the consequences of this medical error as grossly negligent medical mistakes break the chain of causation.
Option A is wrong because it ignores the application of the egg-shell skull rule.
Option B is wrong because whilst it may be accurate, it is not the best answer as it does not explain why a separate claim against the doctor would be needed.
Option D is wrong because the operation of the egg-shell skull rule does not require the employer to know of the pre-existing condition.
Option E is wrong because it does not apply the egg-shell skull rule nor does it consider the effect of the medical error on the chain of causation
The claimant owned a shipyard at a local harbour. The defendant owns and operates a large commercial ship which was anchored in the nearby bay for two weeks. During that time, due to the negligence of the defendant, oil has inadvertently leaked from the ship and crossed the bay. Unfortunately, last week the oil ignited and burned down the claimant’s shipyard. Damage caused by the defendant’s negligence is not recoverable if it is too remote a consequence of the defendant’s act.
Which of the following best expresses the test for remoteness of damage in this negligence case?
A. The defendant must have foreseen the damage likely to be caused to the shipyard.
B. The damage to the claimant’s shipyard must be a direct consequence of the defendant’s act.
C. The damage to the claimant’s shipyard must be reasonably foreseeable.
D. The defendant will be judged against the standard of a reasonable commercial shipping operator.
E. The defendant must be at fault in causing the harm to the claimant’s shipyard.
Feedback
Well done. Option C is correct. The test for remoteness of damage in negligence is that the claimant’s damage must be reasonably foreseeable- The Wagon Mound (No 1) [1961] 1 All ER 404.
Option B is wrong because in the tort of negligence it is not sufficient that the claimant’s damage was a direct consequence of the defendant’s act.
Option A is wrong because the test is an objective one, so it does not depend on what the defendant foresaw.
Options D and E are wrong because it is true to say that the defendant in a negligence claim must be at fault and will be judged against the standard of a reasonable person, or here operator in its position, but that is not the test for remoteness of damage.
A solicitor is instructed by a client who has suffered a bad head injury due to an accident at work. His employers have admitted that they breached the duty they owed the client but are disputing liability on the issue of causation. The employers’ argument is that, while the client was healthy at the time of the incident, medical evidence shows that concussion injuries from playing rugby resulted in the long-term effects of the head injury due to the accident being much worse than they would have been otherwise. The employers have made an offer to settle based upon the effects of the head injury on a person who did not have any pre-accident concussion injuries.
Which of the following statements best explains whether the solicitor should advise the client to accept the employers’ offer?
A. No, because the additional long-term effects of the client’s head injury were reasonably foreseeable.
B. No, because the head injury was reasonably foreseeable and the employer is liable for the full extent of the harm, even if the additional long-term effects of the client’s head injury were not foreseeable.
C. No, because the head injury was reasonably foreseeable and the employer is liable for the full extent of the harm, even if the precise way the head injury occurred was not foreseeable.
D. Yes, because the additional long-term effects of the client’s head injury were not reasonably foreseeable.
E. Yes, because the additional long-term effects of the client’s head injury were caused by the client.
Feedback
Well done. Option B is correct as this explains the ‘egg-shell skull’ rule and why the offer should be rejected.
Option A is wrong because it is likely that a court would find that the additional long-term effects of the client’s head injury were not reasonably foreseeable, ie the client would fail on the basic rule on remoteness as it was not foreseeable that the effects of the injury would be worse because of the client’s concussion injuries. However, the ‘egg-shell skull’ proviso to the basic rule on remoteness would apply. This means that the employers must take the client as they find them, ie with the pre-existing concussion injuries.
Option C is wrong because, while it explains the ‘similar in type’ proviso to the basic rule on remoteness, this proviso is not relevant on the facts of the question.
Option D is wrong because it neglects to consider the ‘egg-shell skull’ rule.
Option E is wrong because whether the client was in any way at fault in causing the pre-existing concussion injuries is not relevant to an application of the ‘egg-shell skull’ rule. (If a claimant’s own unreasonable act, if done after the defendant’s breach of duty, results in their injuries being more severe, then there may be a break in the chain of causation. However, this does not apply to the facts of the question.)
A solicitor acts for a client who is being sued in negligence. The solicitor’s instructions are that the client was giving the claimant (the 8-year-old son of the client’s friend) a lift in the client’s car when they had to carry out an emergency stop. The claimant was thrown forward and hit the back of the driver’s seat. The claimant suffered a broken collar bone as a result. The client confirms that they did not ensure that the claimant was wearing a seatbelt. They had presumed that either the claimant’s father had secured the claimant’s seatbelt when they had sat the claimant in the car or that the claimant themselves had fastened the seatbelt.
The solicitor has advised the client that it is likely that they will be held to have breached the duty of care they owed to the claimant and that the breach caused the claimant’s injury. The solicitor is considering the applicability of any available defence(s).
Which of the following statements best explains whether the client will be able to successfully rely on an applicable defence?
A. Yes, because the claimant’s father was clearly contributorily negligent and this can be argued to reduce the level of compensation the client will have to pay the claimant.
B. Yes, because the claimant was clearly contributorily negligent.
C. Yes, because the claimant’s father consented to the risk of their son’s injury when they sat the claimant in the client’s car without ensuring that the seatbelt was fastened.
D. No, because the claimant’s age makes it highly improbable that the claimant would be found to have been contributorily negligent.
E. No, because, as the claimant’s father did not know of the risk of the client carrying out an emergency stop, they could not be said to have consented to the risk.
Feedback
Well done. Option D is correct. While there is no age below which a child cannot be contributorily negligent, the claimant’s age makes it highly improbable that the claimant would be found to have been contributorily negligent. The ordinary 8 year old would not be expected to have fastened their own seatbelt.
Option A is wrong because the defence of contributory negligence is used as against a claimant ie the child in this case and not their father. The claimant’s father may have been negligent but the child is not ‘identified’ with the negligence of their parent. If the claimant’s father has been negligent, then the client can seek a contribution under the Civil Liability (Contribution) Act 1978. However, this does not prevent the claimant from recovering all of their compensation from the client.
Option B is wrong because it cannot be said that the claimant was clearly contributory negligent (see above).
Option C is wrong because the defence of consent only applies as against the claimant. Any apparent consent by the claimant’s father is irrelevant.
Option E is wrong for the same reason as option C.
A client was driving his car one evening in rush hour traffic. Seeing that the traffic was queuing ahead, the client slowed down. However, the driver of a lorry immediately behind him was not paying attention and collided with the rear of the client’s car. The client was not wearing his seat belt and as a consequence of the collision, struck his head on the windscreen of his car and his chest struck the steering wheel. Medical evidence obtained on the client’s behalf confirms that had he been wearing his seatbelt, he would not have been injured at all. Damages have been agreed in principle at £10,000 but the insurers of the lorry driver are seeking to reduce damages due to your client’s failure to wear his seatbelt.
Based on the information above, what amount is your client likely to receive in damages?
A. £0
B. £5000
C. £7,500
D. £8,500
E. £10,000
Feedback
Well done. Option C is correct because the issues presented relate to contributory negligence, a partial defence pleaded by a defendant, which if successful, results in a claimant’s damages been reduced to reflect their degree of responsibility for their losses – Law Reform (Contributory Negligence) Act 1945. The leading case on which the scenario is based is Froom v Butcher [1975] in which the Court decided that, where the claimant’s injuries would have been avoided had a seatbelt been worn, the likely reduction is 25%.
Options A, B, D and E are therefore all wrong answers because they do not make a 25% reduction in the damages.
