Negligence: Causation / Remoteness of Damage Flashcards
Explain causation
A claimant need only prove that it more likely than not that the defendant was the cause of the claimant’s harm.
Barnett v Chelsea and Kensington Hospital Management Committee (1969)
The ‘but for’ test
The negligent defendant has a duty to put the claimant back in to the position they were ‘but for’ the accident.
Fairchild v Glenhaven Funeral Services (2006)
Mesothelioma case: a single fibre into a person lungs may have caused the injury but it is determining when that was inhaled over the working life.
No medical or scientific evidence can prove this. It was held that all employers of in Fairchild were deemed negligent.
S.3 Compensation Act 2006 now provides for joint and several liability for all the damage caused to victims of mesothelioma caused by negligent exposure to asbestos.
Novus actus interveniens - Rouse v Squires (1973)
A break in the chain of causation
A Defendant may be liable for an incident occurring but an event may intervene and break that chain. A Defendant will only be liable up until the point of that event.
how to address a Novus actus question
Identify the different possible claimants
Identify the first tortfeasor for each claimant
Identify the subsequent tortfeasor for the same claimant
Ask whether the subsequent torts breaks the chain of causation to the first tortfeasor
Re Polemis (1921)
A defendant will be held liable for the direct consequence of a breach of duty, failing to address foreseeability of a reasonable man.
The test was helpful to claimants before the introduction of Donoghue v Stevens (1932) the neighbour principle.
The Wagon Mound (no.1) (1961)
Reasonable foreseeability test case
A defendant is only liable for the types and kinds of damage which can be reasonably foreseen as a consequence of his breach of duty
Lagden v O’Connor (2004)
If claimants susceptibility to greater harm exists because claimant is in financial difficulty at the time of the accident, the egg-shell rule may still apply.
Tremain v Pike (1969)
Provided that the general type of damage suffered can be foreseen by a reasonable careful person, it does not matter that the precise chain of events is unforeseeable.
Gregg v Scott (2005)
Loss of chance
Policy considerations prevent a cause of action for mere exposure to danger to future harm.
Lady Hale stated that this would allow Claimants a second bite at the cherry should the claimant fail to prove causation on the balance of probability but succeed as long as there is some non-negligible possibility that the Defendant was the cause of the harm.
Rouse v Spires (1973)
Novus Actus interveniens
Car crash where lorry A crashes and causes an obstruction. Further vehicles Lorries B & C stopped to offer assistance but one driver, the Defendant failed to stop in time and collides with Lorry A, pushing it into and killing the Claimant who was assisting at the crash site.
Claimant sued B who claimed a contribution from A. It was held that lorry A was responsible on the basis that other drivers may not be fully alert to the traffic danger.
Barker v Corus (2006)
where the claimant could successfully prove that the defendant’s tortious negligence had materially increased the risk of injury, they were entitled to a remedy
It’s decision in determining remoteness of damage in mesothelioma claims was then reversed by s3 Compensation Act 2006.
