Tort Law - Causation

Question 1

What does factual causation deal with and what is the starting point? (4)

Answer 1

It deals with establishing the link between the defendant’s breach and the claimant’s damage. The starting point is always the ‘but for’ test, which means but for the defendant’s breach of duty, would the claimant have suffered their loss at that time and in that way. This is on the balance of probabilities.

Question 2

If the answer to the but for test is no? (1)

Answer 2

Factual causation is satisfied, the claimant would not have suffered their loss were it not for the defendant’s breach.

Question 3

If the answer to the but for test is yes? (1)

Answer 3

Factual causation is not satisfied and the defendant is not liable. The claimant would have suffered their loss even without the defendant’s breach.

Question 4

Key case for but for test and factual causation? (1)

Answer 4

Barnett V Chelsea and Kensington Hospital 1969.

Question 5

Key case for factual causation / but for test failing? (1)

Answer 5

Wilsher V Essex Aha 1988.

Question 6

Key case for factual causation in clinical negligence where the breach is failure to advise on risks? (1)

Answer 6

Chester V Afshar 2004.

Question 7

Key case where but for test is accepted? (1)

Answer 7

Hoston V East Berkshire Health Authority 1987.

Question 8

What may happen when there is more than one potential cause of the damage which operated together to cause the claimant’s loss? (1)

Answer 8

The courts might depart from the ‘but for’ test and apply the material contribution test.

Question 9

What cases do the courts commonly depart from the ‘but for’ test and apply the material increase in risk test? (1)

Answer 9

In industrial disease single agency cases such as mesothelioma and lung cancer caused by asbestos.

Question 10

When may loss of chance be argued? (1)

Answer 10

Where the loss is pure economic loss.

Question 11

Key case of when material contribution test is satisfied? (2)

Answer 11

Bonnington Castings V Wardlaw and Bailey V Ministry of Defence.

Question 12

Key case of when increase in risk test is satified? (1)

Answer 12

Mcghee V National Coal Board.

Question 13

Key case where loss of chances not satisfied? (1)

Answer 13

Hotson V East Berkshire Health Authority.

Question 14

Key case where loss of chance satisfied? (1)

Answer 14

Allied Maples Group V Simmons & Simmons

Question 15

What is apportionement? (2)

Answer 15

A calculation to apply once factual causation has been established. Where multiple tortious factors have caused the loss, the courts apportion liability between the defendants to produce a practical result, providing compensation to the claimant while recognising the respective fault of the defendants.

Question 16

What is the key case for apportionment? (1)

Answer 16

Fitzgerald V Lane & Pate 1987.

Question 17

Key case for apportionment and multiple sufficient cases? (1)

Answer 17

Performance cars V Abraham 1962.

Question 18

When should we consider multiple sufficient cases? (2)

Answer 18

Where there is more than one defendant, each of whom passes the ‘but for’ test for distinct separate losses but each comes after another. The later action may be non-tortious (natural event) but is the factual cause of the later loss.

Question 19

What happens in terms of multiple cases if the second event is tortious? (1)

Answer 19

The first defendant is liable for the original damage past the point of the second event and then the second defendant is liable for any additional damage.

Question 20

What happens in terms of multiple cases if the second event is naturally occurring? (1)

Answer 20

The defendant is liable for damage only up to the natural event.

Question 21

What is the principle of novus actus interveniens and the three types of it? (4)

Answer 21

The defendant is not always liable for absolutely everything that follows from their breach as certain events that occur after the breach may break the chain of causation such as Acts of Gods, acts of third parties and acts of claimant.

Question 22

When do acts of gods break the chain of causation and what is the key case? (2)

Answer 22

If they are exceptional natural events, Carslogie Steamship Co Ltd V Royal Norwegian Government 1952.

Question 23

When do acts of third parties break the chain of causation and what is the key case? (2)

Answer 23

If they are highly unforeseeable, Knightley V Johns 1982.

Question 24

Will acts of third parties that are medical treatment break the chain of causation and what is the key case? (2)

Answer 24

If it is so gross and egregious as to be unforeseeable, Wright V Cambridge Medical Group 2011.

Question 25

When do acts of claimants break the chain of causation and what is the key case? (2)

Answer 25

If they are highly unreasonable, Mckew V Holland & Hanmen ( Cubitts Ltd 1969.

Question 26

Why is it unlikely for acts of claimants to break the chain of causation? (1)

Answer 26

It would normally be dealt with under the defence of contributory negligence.