Negligence: Causation + Remoteness

Question 1

What is Factual Causation?

Answer 1

Was Ds negligence the factual cause of Cs loss?

If this isn’t established, then claim fails

Question 2

What is Remoteness (Legal Causation)?

Answer 2

Does anything break the chain of causation or is the type of harm too remote?

There must be a causal link between Ds actions and Cs harm.

If harm is too remote, D will not be held liable

Question 3

How do we establish Factual Causation?

Answer 3

The But For Test

Question 4

What is the But For Test?

Answer 4

Used to establish Factual Causation

But for D’s breach, would C have suffered the harm?-

So it’s basically asking If it wasn’t because of D would C have suffered?

If Yes, then factual causation not established
If No, then factual causation established

Question 5

What is a key case for the But For Test?

Answer 5

Barnett v Kensington- Dr sent C home without treating her.
C would have died anyway, treated or not.
factual causation not established- no liability

Question 6

what do we use after the But For Test?

Answer 6

All of nothing approach
this is used to make sure if D is the real cause.

this test sees the situation on a balance of probabilities- it has to be more than 50% that it was Ds fault

Wisher v Essex 1988

Question 7

What is a key case for the All or Nothing approach?

Answer 7

Wilsher v Essex 1988

Facts: premature baby had underdeveloped lungs which meant doctors have to give oxygen. Too much was given, baby became partially blind

In this case it was established that there are 5 potential causes of harm
Only one of them was the doctor’s negligence
So there was a 20% chance that it was the doctors fault
So there was no factual causation here

Question 8

What are some attempts to relax the But For test?

Answer 8

• Material contribution to harm cases
• Material contribution to risk of harm/Fairchild exception cases
• Informed consent cases
• Loss of chance cases

REMEMBER: These are only used when the But For Test fails!

Question 9

Material Contribution to harm

Answer 9

This is used when the but for test fails.

So this is only relevant where there are multiple potential causes of the harm- eg if there’s a cumulative condition

Key Case:
Bennington v Wardlaw 1956- C developed Lund disease from breathing silica dust in work place. there was both guilt and innocent dust so not sure which caused the disease. However this disease occurred due to gradual exposure. Court said since it caused the harm, this was sufficient for causation

Question 10

Material Contribution to THE RISK OF harm

Answer 10

This is used when But For Test fails. It extends but for test

This is used for multiple causes again- But its NOT for cumulative conditions

Key case:
McGhee v National Coal Board [1972]- C got dermatitis (non cumulative condition) from brick dust at work. There was innocent and guilty dust- D cant prove which one caused it (but for test fails). Couldn’t prove that it materially contributed to the harm as it was non cumulative. But they could say that Ds negligence had materially contributed TO THE RISK of harm rather than direct harm- this was sufficient

Question 11

Within material contribution to the risk of harm, what is the Fairchild exception?

Answer 11

This is where the may be a number of potential employers who contributed to the harm- if you can’t pin point one then you can sue them all

Key case:

Fairchild v Glenhaven [2002]- 3 Cs developed mesothelioma (fatal lung disease). They were negligently exposed to asbestos over numerous jobs. This wasn’t cumulative and could have developed even after single exposure. Wasn’t possible to pinpoint which employer caused the disease. But For test therefore failed but HOL saw this as unjust outcome and applies McGhee- Material increase to risk approach- disregarding Wilsher. Ds became liable

Fairchild exception is rarely used: Zurich Insurance PLC [2015] – said it can be applicable to any disease that has the unusual features of mesothelioma

Question 12

How are damages awarded with Fairchild Exception?

Answer 12

The defendants can be jointly and severally liable.

Instead of each D paying full compensation, it could be split proportionately across defendants according to how negligent they were.
so if one is more negligent than the other, they pay more.

Key Case: Barker v Corus 2006- split damages proportionately according to negligence

S3 Compensation Act 2006- enacted to allow C to get full compensation.
It can only be used for mesothelioma cases.

Question 13

Another way to extend the but for test is informed consent cases

Answer 13

this can only be used where consent is at issue.

Key case:
Chester v Afshar [2004]- C had back surgery and got spinal condition. Doctor not negligent but didn’t inform C of the risk. If she knew shhe would have gone somewhere else. But still would have got condition. So, But for test failed but It was an unjust outcome so court said the injury was within the scope of duty to warn of material risk so enough to establish causation

Question 14

Another way to extend But For test is Loss of Chance

Answer 14

This is where the claimant may want to recover in negligence for loss of chance in relation to their health. This isn’t very successful.

Key case:
Hotson v East Berkshire AHA [1987]- Negligent treatment of hip injury after boy falls out of tree- later becomes paralysed. Court held that causation couldn’t be established because there was a more than 70% chance of paralysis happening anyway

Question 15

What test do we use for remoteness (legal causation?

Answer 15

The Wagon Mound Test

Question 16

What is the Wagon Mound Test?

Answer 16

This is asking: Was the type of damage suffered by C reasonably foreseeable at the time the breach occurred?

Was it likely this was going to happen? reasonably foreseeable?

Question 17

When looking at the Wagon Mound test, how do we work out if the harm was foreseeable?

Answer 17

When looking at the type of harm, we need to see if its reasonable foreseeable foe that activity to carry some risk of physical injury. if it’s completely not foreseeable, then the harm is too remote.

Key case:
Jolley v Sutton [2000]- two kids repairing boat, the boat fell on kid causing injury. HOL said kids were medaling with boat which had the risk of some physical injury- they said this was reasonably foreseeable and harm not too remote

Its important to remember the thin skull rule when looking at foreseeability.

If the type of damage is reasonably foreseeable, then D must take the victim as they find them- even if C is particularly vulnerable

Key case: Smith v Leech Brain [1962]

Question 18

Chain of Causation- What are some things that could break the chain of causation?

Answer 18

1) Supervening acts

2) Novus Interveniens - New intervening acts.

Question 19

What is a Supervening Act?

Answer 19

This is an event that may occur which breaks the chain of causation.

These are consecutive but unconnected acts which cause the same/greater harm than the original one caused by Ds actions.

If there is a supervening act, D would still be liable but damages adjusted accordingly.

Key case: Jobling v Associated Dairies [1982]

Question 20

Key case for supervening acts?

Answer 20

supervening acts affect the chain of causation.

Key case: Jobling v Associated Dairies [1982]

C got back injury, led to reduced earning potential. Before suing D he got back disease and was going to blame this because of D. HOL said D only had to pay damages up until the point of when disease started. So damages were reduced accordingly
C cannot claim for the “Vicissitudes of life”- things happen to everyone you cant blame someone else for something that was going to happen anyway

Question 21

What are some examples of Supervening Acts?

Answer 21

Natural Events
Tortious Acts
Criminal Acts

Question 22

What is an intervening act?

Answer 22

This breaks the chain of causation

If this is present, D will only be liable for harm caused before the intervening act.

Question 23

What are some examples of intervening acts that would break the chain of causation?

Answer 23

1) Intervening acts by third parties

2) Intervening acts by claimant

Question 24

What is the difference between supervening act and intervening act?

Answer 24

● a supervening act would have happened regardless of the defendant’s tort and wouldn’t have occurred without Ds negligence

● an intervening act is going to be more closely connected to the defendant’s tort, and the claimants relevant harm

Question 25

Intervening acts: What are some examples of acts but third parties?

Answer 25

1) Deliberate wrongful acts
Lamb v Camden LBC [1981]- council caused some damage to Cs house. But then squatters moved in and caused more damage. This broke the chain- making council not liable

2) Negligent acts
If there is a later negligence act, this will break the chain
For D to remain liable, the act must be a natural and probable consequence of Ds negligence.

Knightley v Johns [1982]- D caused road accident by negligent driving. Police officer didn’t close tunnel, thus not stopping traffic. Sent another officer on bike to stop traffic- he suffered an accident- this was a negligent act- D wont not be liable for this – this was not a natural consequence of Ds negligence but polices

3) Medical negligence
Wright v Cambridge Medical Group [2011] – held an act of medical negligence will not break the chain. Held to be not sufficiently egregious to break it- but it depends on facts

Question 26

How are damages awarded for acts of third parties?

Answer 26

Later negligent acts don’t often break the chain of causation unless contributory negligent as court can apportion/ split damages.

Key case:
o Wright v Lodge [1993]- D1 car broke down on dual carriageway- stopped in middle of road. D2 was a speeding lorry- didn’t slow down and hit the back of D1 which injured her passenger and hit other vehicles
o D1 liable for 10% damages and D2 responsible for 90% damage- this is a way to split damage

Question 27

Intervening acts: What are some examples of acts done by claimant that would break the chain of causation?

Answer 27

1) Unreasonable acts
Cs own unreasonable actions can break the chain of causation
this is rarely used as there is contributory negligence

McKew v Holland [1969] – C injured due to work accident by Ds negligence- no hand rail on stairs and he couldn’t use his legs so he decided to throw himself down stairs landing on his head. Court said this was unreasonable and it broke the chain- D not liable

2) Suicide and mental health
A deliberate act of suicide doesn’t break chain- D still liable
Reeves v Metropolitan PC [2000]- Cs partner committed suicide in police custody. D had a duty to take steps to prevent suicide. Court said this was contributory negligence

Corr v IBC Vehicles [2008] – C injured and nearly killed in work accident. Later developed PTSD and commits suicide. Here there was no specific duty to prevent suicide (cf. Reeves; Kirkham). No break in chain of causation.