Negligence (Causation and Defences)

Question 1

Which case establishes the basic test for factual causation?

Answer 1

Barnett v Chelsea and Kensington HMC [1969] - three workers come in with stomach pains, hospital turns them away say nothing much wrong. Turns out to be arsenic poisoning and one of them dies. Hospital did breach its duty of care but did not satisfy the But For test, as they did not administer the arsenic, nor could they have prevented death): Factual Causation is established if ‘But for D’s breach, C would not have sustained the harm’

Question 2

2 ways of applying but for test?

Answer 2

1) All or nothing (Hotson v East Berkshire Health Authority)

2) Modified Test (Wilsher v Essex Area HA). C must show D’s breach:
- Materially contributed to harm (Bonnington v Wardlaw)
- Materially contributed to risk of harm (McGhee v National Coal Board)

Question 3

Hotson v East Berkshire Area Health Authority [1987]

Answer 3

claimant fell from a tree and was injured, but was then treated negligently by the D. There was a 75% chance that the claimant’s medical condition following the fall would have been the same irrespective of diagnosis and treatment. C failed to satisfy causation test as there was only a 25% chance the D’s breach had caused his disability and this did not satisfy the balance of probabilities)

Question 4

Wilsher v Essex Area Health Authority [1988] - Court of Appeal

Answer 4

there could have been five different causes of the baby being blind. As there were so many possible causes of the harm, the C had not discharged the burden. The HoL ordered a retrial on the question of causation)

Question 5

Bonnington Castings v Wardlaw [1956] - House of Lords

Answer 5

[SWING GRINDERS!!!] D was negligent in exposing C to dust from equipment (the swing grinders) not been properly maintained. C’s disease was caused by the inhalation of dust. Two causes of dust. First was the swing grinders, D was negligent. Second was pneumatic hammer, D was not negligent. C successful as could show D’s breach MATERIALLY CONTRIBUTED to the harm suffered)

Question 6

McGhee v National Coal Board [1973]

Answer 6

[RETURNING HOME FROM COAL MINE!!!] C exposed to dust at work. Exposure sustained during working day, D was not negligent. Exposure on way home from work, D was negligent as hadn’t provided washing facilities. C contracted dermatitis, this was caused by dust exposure but could not prove whether it was dust at work or on way home which caused. House of Lords held that the C did not have to show that absence of washing facilities was the actual cause of the dermatitis. SUFFICIENT TO SHOW THAT THE Ds HAD MATERIALLY INCREASED THE RISK OF THE C CONTRACTING DERMATITIS

Question 7

How do the courts deal with DIVISIBLE harm (where there is more than one cause)?

Answer 7

i. If harm is DIVISIBLE, the court will apportion damages accordingly (Holtby v Brigham [2000] – C developed asbestosis due to exposure to asbestos dust during his work. However, the disease had developed over a period of time during which he had worked for several different employers. Brought his claim against one of those employers and was able to prove that this employer’s negligence had made a material contribution to his damage. Therefore, he was able to succeed in proving causation. Damages paid were as a proportion of the time spent in employment at that firm)

Question 8

How do the courts deal with INDIVISIBLE harm?

Answer 8

ii. If the harm is INDIVISIBLE (more than one party is responsible for the same harm), C may sue any one D for the whole loss. But under the Civil Liability (Contribution) Act 1978 this D may seek a just and equitable contribution from the other liable parties

Question 9

Fairchild v Glenhaven Funeral Services [2002]

Answer 9

if more than one employer is being sued, the responsibility of each employer need not be categorically proven. Mesothelioma is a non-cumulative disease unlike asbestos. Court said as long as could prove one employer materially contributed to risk, could sue him in full

Question 10

How was Barker v Corus overruled?

Answer 10

By s. 3 Compensation Act 2006

Question 11

What if the claimant is injured more than once?

Answer 11

Performance Cars v Abraham [1962] - Rolls Royce collides and needs re-spray but already damaged in that area. Court of Appeal says cannot claim cost of re-spray:

• Where the claimant or his property has already suffered damage, a later D who causes a subsequent injury should be liable only in so far as he makes the C’s damage worse

Question 12

Does the negligent intervention of a third party break the chain of causation?

Answer 12

Only if unforeseeable. Knightly v Johns [1982] - Police inspector sends constable back against traffic after someone blocks the tunnel. D held to be not liable, could not have foreseen actions of police inspector [CHARGING LIKE A KNIGHT AGAINST THE TRAFFIC!]

Rouse v Squire [1973] - Case where lorry jack-knifes and pile up occurs. Court of Appeal held A and B both liable, B’s negligence did not break chain of causation for A

Question 13

Does the instinctive intervention of a third party break the chain of causation?

Answer 13

No - Scott v Shepherd (1773)

Question 14

Will reckless or intentional conduct (as opposed to negligent) break the chain of causation?

Answer 14

More likely to break chain unless foreseeable. In Lamb v Camden Borough Council [1981] - Squatters case - Ds were not liable, squatters broke chain

Compare with Stansbie v Troman [1948] – D decorating a house. Told by owner to lock up. Left unlocked for two hours while fetched wallpaper. Thief comes in and stole diamond bracelet. Court of Appeal held D was liable to C. Not taken reasonable care to prevent thieves entering. THIEF DID NOT BREAK CHAIN OF CAUSATION

Question 15

Which case is authority for rule that medical negligence does not break the chain of causation unless wholly unreasonable?

Answer 15

Rahman v Arearose [2000] Court of Appeal

Question 16

Judgement in Rahman v Arearose [2000] Court of Appeal (Burger King beating case)?

Answer 16

1. Claimant’s employer negligent in not protecting staff (had been multiple attacks there) and responsible for 1st injury
2. Hospital solely responsible for blindness
3. Both employer and hospital liable for psychiatric problem. Divisible injury. Damages apportioned between employer and hospital
4. Medical negligence does not break the chain of causation. Employer still liable

Question 17

Will intervening acts by the C break the chain of causation?

Answer 17

Only if wholly unreasonable in all the circumstances. C acted unreasonably in McKew v Holland [1969] in descending steep staircase after D’s negligence had weakened his leg. Compare with Wieland v Cyril Lord Carpets [1969] - C injured her neck due to D’s negligence. Neck brace meant couldn’t wear spectacles. Fell down stairs as a result. Did not break chain of causation. Acted reasonably

Question 18

Legal causation: What is the remoteness rule?

Answer 18

Remoteness rule: D is only liable for REASONABLY FORSEEABLE damage (i.e. Damage is only recoverable if a reasonable man could have foreseen it) (The Wagon Mound (No.1) [1961]

Question 19

Facts of The Wagon Mound (No. 1)

Answer 19

D operating a ship, the Wagon Mound. Its employees carelessly allowed oil to spill from the ship into Sydney Harbour. Claimant was a ship builder who owned wharf where employees used welding equipment. C’s managers ordered work to stop while inspected. Decided that not likely to ignite. Welding commenced. Oil ignited. C’s wharf and ship under repair damaged. HELD – Privy Council found that D not liable for the fire damage as not reasonably foreseeable)

Question 20

Similar type rule?

Answer 20

Hughes v Lord Advocate [1963]: It is not necessary to foresee the precise WAY in which the harm is caused, provided the TYPE OF HARM is reasonably foreseeable: Facts: Post Office employees repairing underground cable left manhole with tent over it and paraffin lamp while on tea break. Boys aged 8 and 10 go in and climb down manhole. On coming out, lamp drops down causing huge explosion and boy suffers bad burns. HELD – D liable for injuries

Question 21

In what case was the similar type rule not satisfied?

Answer 21

Tremain v Pike [1969] – C worked on D’s farm. The D negligently allowed rats to proliferate on the farm. The C came into contact with the rats. Contracted rare condition, Well’s disease, which is caught by contact with rat’s urine. Court said this type of injury not foreseeable even under similar type proviso

Question 22

Egg shell skull rule?

Answer 22

c. Robinson v Post Office [1974] – the egg-shell skull rule: Take your victim as you find him. If C suffers from a particular disability/condition, C may recover in full from D, even where D could not have foreseen C’s losses

Question 23

What defences to negligence are there?

Answer 23

1) Voluntary assumption of risk
2) Illegality
3) Contributory Negligence

Question 24

What must be satisfied for voluntary assumption of risk to be a valid defence?

Answer 24

Apply Nettleship v Weston test. D must prove:

i. C had FULL KNOWLEDGE of nature and extent of risk
ii. C WILLINGLY ACCEPTED THE RISK of being injured due to D’s negligence [hard to show]

Question 25

What normally happens if employers use defence of voluntary assumption of risk?

Answer 25

Rarely succeeds - Smith v Barker [1891] – C injured when crane lifting heavy stones dropped load on him. Just because C continued to work, knowing the risks, did not mean he had consented in law to the risks

Question 26

Will defence of voluntary assumption to succeed where negligence has harmed a rescuer?

Answer 26

c. Rare for defence to succeed against rescuers, who are deemed to be ‘compelled by moral instinct’ (Haynes v Harwood [1935] – CofA, police officer on duty inside station on busy street, sees runaway horses charging down, rushed out and stopped them, sustaining significant injuries in consequence. Defence of voluntary assumption of risk did not apply)

Question 27

Dann v Hamilton

Answer 27

knowledge must be sufficient to inform the consent for Volenti. Facts: C knew the driver had been drinking so that there was a risk might drive carelessly. Knowledge not sufficient to imply consent

Question 28

Morris v Murray [1990]

Answer 28

drunkenness of pilot so extreme and glaring that C could said to have accepted the risk of negligence. Had been drinking at the Blue Boar all day. Murray had consumed equivalent of 17 whiskies. Drove plane from Stapleford. C paid for refuelling, drove them to airfield etc. He had consented.

Question 29

How does s. 149 Road Traffic Act influence Dann as an authority?

Answer 29

Despite s.149 Road Traffic Act 1998, Dann is still relevant – illustrates how difficult it is to rely on the defence of volenti.

Question 30

Illegality defence?

Answer 30

D may have a defence if C was involved in an illegal enterprise when injured Pitts v Hunt [1990]

Question 31

Facts of Pitts v Hunt [1990]

Answer 31

CofA – Pitts was a passenger in a motorbike which collided with an oncoming car, killing the driver and permanently disabling Pitts. Both had been drinking and driver was 16, too young for motorbike driven, and uninsured. HELD – that defence of illegality. Balcombe L.J. – impossible for the court to determine the appropriate standard of care. Therefore, no duty of care owed by deceased to claimant. Dillon L.J. ex turpi applies. NB – trial judge believed C 100% contributory negligent. Dillon L.J. said that was wrongs)

Question 32

Ashton v Turner [1981]

Answer 32

C and D escaping from burglary they had committed. D’s negligent driving caused a crash in which the C was injured. Defence of illegality applied.

Question 33

What does D need to show for contributory negligence?

Answer 33

i. C was careless

ii. C’s careless behaviour contributed to C’s harm

Question 34

What does s1(1) Law Reform (Contributory Negligence) Act 1945 do?

Answer 34

If contributory negligence shown, s1(1) reduces damages

Question 35

What case demonstrates what s1(1) Law Reform (Contributory Negligence) Act 1945 does?

Answer 35

Reeves v Metropolitan Police Commissioner [1999] – House of Lords – the deceased hanged himself whilst in police custody. Court found he was 50% to blame so only got 50% damages (1945 Act – Damages reduced to such an extent as the court thinks just and equitable, having regard to the C’s share in the responsibility for the damage)

Question 36

Froom v Butcher [1975]

Answer 36

Froom v Butcher [1975] - damages can be reduced by 25% for injuries that would have been avoided if seatbelt worn, 15% if less severe if seatbelt worn, and 0% where seatbelt made no difference.

Question 37

What if C was not wearing helmet on a motorbike?

Answer 37

d. Capps v Miller [1989] – CofA adopted same tariff for failure by motor cyclists to wear crash helmets as that laid down for seatbelts in Froom v Butcher

Question 38

What happens if you accept lift off someone you know to be drunk and then you have an accident. Are you contributorily negligent?

Answer 38

YES - e. Owens v Brimmell [1997] – Passengers who accept lifts from driver they know to be drunk will be contributorily negligent. Also, self-induced intoxication cannot be used as an excuse by claimants for failing to take reasonable care of themselves

Question 39

Will the courts reduce employee’s damages for contributory negligence normally?

Answer 39

f. Employees: Courts typically generous and rarely reduce employees’ damages, particularly where the work involved is dull/repetitive (Caswell v Powell Duffryn)

Question 40

Against what standard are children judged in contributory negligence?

Answer 40

judged according to their own standard – would a child of that age have taken more care for his safety? (Gough v Thorne [1966]

Question 41

i. How do you get a contribution from the parents if they are partly to blame for child’s injuries?

Answer 41

Civil Liability (Contribution) Act 1978

Question 42

Are rescuers likely to be found contributory negligence?

Answer 42

Rescuers: findings of contributory negligence very rare – only where rescuer has shown a ‘wholly unreasonable disregard for his/her own safety’. Judged against standard of reasonable rescuer (Baker v T.E. Hopkins [1959])

Question 43

What is the dilemma rule and give a case where it meant contributory negligence could not be found?

Answer 43

Dilemma Rule: Situations of imminent danger: Where C’s response is reasonable, there will be no finding of contributory negligence (Jones v Boyce [1814-23] – Jones jumped from the D’s coach when there was a danger of it overturning. He broke his leg. He had acted in the agony of the moment, and so no finding of CNeg. Would have been safer if stayed on coach).

Question 44

Give a case where the actions were unreasonable and the dilemma rule could not be used to negate contributory negligence as a defence?

Answer 44

Where unreasonable, defence of CNeg may succeed (Sayers v Harlow [1958] Court of Appeal – C trapped in public toilet owned by D as a result of D negligence. After unsuccessfully calling for assistance, she decided to climb out, placing weight on roll holder, which gave way. HELD, she was CNeg, as method of escape was not reasonable)

Question 45

Corr v IBC Vehicles [2008]

Answer 45

D caused injury to its employee, which lead to his eventual suicide. D accepted DoC, Breach, physical and psychological injuries. Disputed liability for the deceased’s eventual suicide. Argued (all of which failed):
• Suicide not reasonably foreseeable, too remote
• Suicide = new intervening act
• Defence of voluntary assumption of risk
• Suicide = contributory negligence

Question 46

Gray v Thames Trains [2009]

Answer 46

C injured in a rail crash caused by D’s negligence. C suffers PTSD, stabs someone to death. On top of damages directly related to crash, also claimed damages related to the stabbing eg. damages for conviction, to dependents of victim etc. D argued claim for latter heads of loss was inextricably bound up with C’s criminal conduct. House of Lords HELD Defence of illegality applied.

Question 47

St. George v Home Office [2008]

Answer 47

C was a prisoner with a history of drug abuse. Caused withdrawal seizures. Despite telling prison officers, he was placed on top bunk. Had a seizure, fell 7 or 8 feet and suffered a head wound which caused seizure to develop to brain damage. Severely and permanently disabled. Trial judge said Home Office negligent but that prisoner was contributorily negligent.
- HELD, that the addiction was too remote from the fall from the accident and the true cause of the injuries was the negligence of the police staff. Even if addiction had played a part, it would not have been just and equitable to reduce damages