Negligence - Causation & Remoteness

Question 1

What is the concept of causation?

Answer 1

For D to be liable in the tort of negligence, it must be shown that his breach of duty caused loss to C.

Question 2

How important is causation to negligence claims?

Answer 2

Causation is an essential element to a negligence claim. It provides an essential link between D’s conduct and the harm suffered by C, which explains why this D should be liable to this C for this loss.

Question 3

What are the two types of causation?

Answer 3

1. Factual Causation

2. Legal Causation

Question 4

What is factual causation?

Answer 4

This involves asking whether the C would have suffered the loss but for the defendant’s breach of duty.

Question 5

What is legal causation?

Answer 5

This involves asking whether the D’s breach of duty was the sort of but for cause as to justify liability.

Question 6

What are the key sub-considerations within the factual causation question?

Answer 6

1. What happened factually in the situation as it occurred?
2. On a balance of probabilities, did the breach cause the harm alleged (‘but for’ the negligence, would the harm have been suffered)?
3. If not, have the courts created an exception to the usual rule?

Question 7

What are the key sub-considerations within the legal causation question?

Answer 7

1. Even if the breach was the cause in fact of the harm suffered, what is the legal interpretation of the facts?
2. Are there any policy or other reasons to justify denying liability?
3. Was there a break in the chain of causation?

Question 8

What is the key rule or test, underpinning the question of factual causation?

Answer 8

The ‘but for test’ - the factual causation inquiry asks a basic hypothetical factual question: would C have suffered the same loss even if D had not breached his duty?

Question 9

Which case supports the importance and application of the ‘but for test’?

Answer 9

Barnett v Chelsea and Kensington Hospital

Question 10

What are the details of the Barnett Case?

Answer 10

C’s husband, after drinking tea, started vomiting. He was taken to hospital, where the doctor told him to go home and get some rest. C later died of arsenic poisoning.

Question 11

What was the finding of the Barnett Case?

Answer 11

It was held that C’s claim failed. Although the doctor was held to have acted negligently, C’s husband would have died even if he had been treated promptly.

Question 12

What does a claimant need to demonstrate to satisfy the ‘but for’ test of factual causation?

Answer 12

C needs to show that it is more likely than not or on the balance of probabilities that, had D not breached his duty, C would not have suffered the loss he did.

Question 13

Which case demonstrates the need to establish that ‘on the balance of probabilities, had D not breached his duty, C would not have suffered the loss he did?

Answer 13

Wilsher v Essex Area Health Authority

Question 14

What are the details of the Wilsher Case?

Answer 14

1. A baby was born prematurely and placed in a special care unit.
2. The hospital wanted to monitor his arterial blood oxygen levels, which required that a catheter be inserted into the umbilical artery.
3. The catheter was, however, wrongly inserted into the umbilical vein.
4. This then led to inaccurate readings of his arterial blood oxygen levels, which in turn resulted in his receiving excessive quantities of oxygen. 5. The baby developed a condition called retrolental fibroplasia, which cause him to go blind.
5. At trial the D was held liable.

Question 15

What was the finding of the Wilsher Case?

Answer 15

It was held that the D’s appeal was successful. The excessive oxygen was only one of six possible causes of the blindness, and C had not established on the balance of probabilities that he would not have gone blind but for the D’s breach .

Question 16

What are the exceptions to the ‘but for’ rule of factual causation?

Answer 16

1. Material contribution to injury

2. Material increase in risk

Question 17

Which case established the ‘material contribution to injury’ exception to the ‘but for’ rule of factual causation?

Answer 17

Bonnington v Wardlaw Castings

Question 18

What were the details of the Bonnington v Wardlaw Castings Case?

Answer 18

A factory employee contracted pneumoconiosis, a lung condition, from the inhalation of ‘innocent’ and ‘guilty’ silica dust.

Question 19

What was the finding of the Bonnington v Wardlaw Castings Case?

Answer 19

It was held that, in the situation of 2 potential causes of danger, the onus of proof was on the pursuer to prove on a balance of probabilities that the negligence or breach of duty (i.e. the source for which the defender was responsible) caused or materially contributed to his injury.
Since in this case, it might be argued that cumulatively the ‘innocent’ and ‘guilty’ dust were more likely to cause harm, it was enough to show that D’s negligence had been a material contribution to the condition.

Question 20

Which case established the ‘material increase in risk’ exception to the ‘but for’ test of factual causation?

Answer 20

McGhee v National Coal Board

Question 21

What were the details of the McGhee Case?

Answer 21

C contracted dermatitis as a result of being covered in brick dust each day when at work. D didn’t provide showers for workers (in breach of the duty of care they owed to the C) and so the C had to wait till he got home to wash the dust off himself. It could not be established whether being able to shower at work would have prevented the disease from arising.

Question 22

What was the finding in the McGhee Case?

Answer 22

The House of Lords held that it was sufficient for a pursuer to show that the defender’s breach of duty materially increased the risk of injury, even though there were other factors, for which the defender was not responsible, which had contributed to the injury and that there was no practical difference between materially increasing the risk of harm and materially contributing to that harm.

Question 23

Is the reasoning in the McGhee case reconcilable with that of Wilsher?

Answer 23

Yes, it appears that the basic principles of McGhee (other than the reversal of the burden of proof) had remained intact despite Wilsher. In the context of an evidential gap of unassessibility of relative contribution of risk.

Question 24

Which case demonstrated the application of the ‘material increase in risk’ exception to cases of multiple potential causes?

Answer 24

Fairchild v Glenhaven Funeral Services

Question 25

What are the details of the Fairchild Case?

Answer 25

1. Cs contracted a disease called mesothelioma, which was caused by exposure to asbestos.
2. It was established both that Cs had been exposed to asbestos only through their work and that their employers had breached the duty of care they owed to them by allowing them to be exposed to asbestos.
3. The problem arose because each of Cs had worked for more than one employer and they could not say which employer they were working for when they were exposed to asbestos, which triggered the disease.

Question 26

What was the finding of the Fairchild case?

Answer 26

It was held that where successive employers had failed to protect an employee from a disease (mesothelioma), but it could not be proved on a balance of probability which employer had caused the injury, the conduct of each employer in exposing the claimant to a material increase in risk to which he should not have been exposed should be treated as if it had made a material contribution to the disease.

Question 27

What were the two key justifications the HoL gave for departing from the standard ‘but for’ test in Fairchild?

Answer 27

1. Fairness

2. Compliance

Question 28

What is the scope of the Fairchild exception?

Answer 28

It is difficult to precisely define the extent of the reach of the Fairchild exception - on the facts of the case, C was entitled to succeed, and the causation requirement was held to be satisfied, provided D increased the risk of the C being harmed in this way and that harm then eventuated and it could not be proved that this was not as a result of the D’s breach.

Question 29

What were the 5 seemingly significant considerations or factors taken into account by the court when deciding Fairchild?

Answer 29

1. Evidential Gap - The current state of relevant science left it uncertain how the injury was caused.
2. Material Risk - The defendant’s conduct created a material risk of injury to the claimant.
3. Capable of Causing injury - The defendant’s conduct was capable of causing the claimant’s injury.
4. Eventuation of kind of risk created by the Defendant’s wrongdoing - The claimant’s injury was caused by the eventuation of the kind of risk created by the defendant’s wrongdoing.
5. Same agent or operated in substantially same way - The claimant proved his injury was caused, if not exactly by the same agency as was involved in the defendant’s wrongdoing, at least by an agency that operated in substantially the same way.

Question 30

Which case demonstrated the application of the ‘material increase in risk’ exception to instances involving self-employment?

Answer 30

Barker v Corus

Question 31

What were the details of the Barker Case?

Answer 31

A number of Cs had developed mesothelioma as a result of exposure to asbestos through their work. The key difference was that each C had, for a period of the time in which he was exposed to asbestos, been self-employed. Accordingly, and unlike Fairchild, there was a chance that the C had inhaled the relevant asbestos fibre(s) when self-employed, and so in circumstances which do not amount to a breach of duty (because you cannot owe a duty of care to yourself).

Question 32

What is the first modification or clarification to the Fairchild Exception that Barker made?

Answer 32

Barker established that the Fairchild exception did not require all potential causes of the injury to be tortious, providing one or more employers was at fault or the claimant was at fault himself. It was therefore irrelevant whether the other exposure was tortious or non-tortious, by natural causes or by the claimant himself.

Question 33

What is the second modification or clarification to the Fairchild Exception that Barker made?

Answer 33

Barker saw the majority hold that, in regards to the scope of the Fairchild exception, where it could not be shown which defendant’s breach of duty caused the damage, but that it could be shown that each defendant exposed the claimant to a significant risk of eventual damage, fairness demanded that the damage should be apportioned between defendants in accordance with their aliquot contribution to the risk or chance of the disease being contracted by the claimant.

Question 34

How does the Barker Case extend the rule set down in the Fairchild exception?

Answer 34

Arguably Barker extended the Fairchild exception to a wider range of cases as the House of Lords considered that no legitimate distinction could be drawn between cases of multiple potential causes (including self-inflicted ones) and those first considered in Fairchild.

Question 35

What is the key difference between Fairchild and Barker Case?

Answer 35

The big difference with Barker Cases (in contrast to Fairchild ones) was that there was a chance that the illness was not the result of a tort – that is, it may have resulted from exposure during a period of self-employment.

Question 36

How does the Barker Case narrow the rule set down in the Fairchild exception?

Answer 36

Barker arguably narrows the scope of the Fairchild rule as the House of Lords thought that liability should be limited to each employers “share” of the total asbestos exposure to which the C was subjected.

Question 37

What is the current status of the apportionment ruling in Barker?

Answer 37

The apportionment ruling in Barker has been overruled by s 3 of the Compensation Act 2006, such that anyone liable under the Fairchild exception for causing/creating the risk of mesothelioma is liable in full for C’s losses.

Question 38

Which case demonstrated the application of the Fairchild exception to ‘single exposure cases’?

Answer 38

Sienkiewicz v Greif (UK) Ltd

Question 39

What were the details of the Sienkiewicz v Greif (UK) Ltd case?

Answer 39

1. An action was brought on behalf of Mrs Costello, who died from mesothelioma in 2006.
2. Mrs Costello had worked in offices at the defendant’s factory in Ellesmere Port in Cheshire for nearly 20 years until 1984.
3. Her job required her to enter areas of the factory that were contaminated with asbestos.
4. At first instance, this exposure was found to be negligent. However, the judge also found that the claimant had been exposed to low levels of asbestos in the general atmosphere around Ellesmere Port, which might also have been significant enough to have caused mesothelioma.

Question 40

What was the finding of the Sienkiewicz v Greif (UK) Ltd?

Answer 40

The Supreme Court held that the Fairchild exception applied to such “single exposure cases” (where only one defendant exposed the victim to asbestos, and the only other exposure creating a risk of developing mesothelioma was environmental exposure to low-level asbestos dust in the atmosphere), providing the claimant proved that the defendant’s breach of duty materially increased the risk that he would develop mesothelioma.