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Law Second Year > Tort Law - Causation > Flashcards

Tort Law - Causation Flashcards

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1
Q

Stapleton gives what two strands of causation?

A

Historical connection between D’s negligence and injury, and damage falling within scope of liability for consequences

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2
Q

What is the usual test for a historical connection between D’s negligence and injury?

A

But for

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3
Q

What is the usual test to find damage falling within scope of liability for consequences?

A

Remoteness and NA

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4
Q

What are the tests of remoteness and NA, essentially?

A

A normative inquiry reflecting a value judgment as to proper liability limits

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5
Q

Who gave two strands of causation?

A

Stapleton

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6
Q

What does causation require C to prove?

A

D’s fault caused damage , on the balance of probabilities

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7
Q

Name the four possible tests of causation

A

But for, material contribution to injury, loss of chance and material contribution to risk

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8
Q

what does the but for test require?

A

D’s wrong to have made a difference

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9
Q

Barnett v Chelsea & Kensington Hospital general

A

Tea doctor arsenic

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10
Q

Tea doctor arsenic

A

Barnett v Chelsea & Kensington Hospital

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11
Q

Barnett v Chelsea & Kensington Hospital judgment

A

No claim - administrative processes meant antidote would have been given too late even if doctor hadn’t been negligent

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12
Q

What was the key feature in Barnett v Chelsea & Kensington Hospital?

A

The timetable

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13
Q

Why was Barnett v Chelsea & Kensington Hospital unusual?

A

Could be relatively sure of outcome in parallel hypothetical sequences of events, which is uncommon in medical negligence

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14
Q

Hotson v East Berks AHA general

A

Hip, avascular necrosis, sent home

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15
Q

Hotson v East Berks AHA judgment

A

If unsure of outcome, balance of probabilities test

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16
Q

Why was the injury considered certain in Hotson v East Berks AHA?

A

75% chance he was already too badly injured

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17
Q

What did the judges refuse to rule out in Hotson v East Berks AHA?

A

Possibility of proving loss of chance in medical negligence

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18
Q

In what case did the judges refuse to rule out the Possibility of proving loss of chance in medical negligence?

A

Hotson v East Berks AHA

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19
Q

Bolitho v City and Hackney HA general

A

Pager message, intubation

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20
Q

Bolitho v City and Hackney HA judgment

A

Look to what D says they would have done, see if it would have been negligent, and if yes then causation will be proved on what she SHOULD have done

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21
Q

In what case did the courts examine what would happen if D says they would have done X if they hadn’t been negligent, but C says they should have done Y?

A

Bolitho v City and Hackney HA

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22
Q

Pager message, intubation

A

Bolitho v City and Hackney HA

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23
Q

Wright v Cambridge Medical Group confirmed what case?

A

Bolitho

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24
Q

What case confirmed Bolitho?

A

Wright v Cambridge Medical Group

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25
Q

Wright v Cambridge Medical Group judgment

A

Even if subsequent negligence is by 3rd, Bolitho applies

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26
Q

Why did Bolitho still apply in Wright v Cambridge Medical Group?

A

Irrebutable presumption that subsequent treatment would be without negligence

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27
Q

In what case was Bolitho held to apply even if subsequent negligence is by 3rd?

A

Wright v Cambridge Medical Group

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28
Q

Wright v Cambridge Medical Group general

A

Delay in referral, negligent correct diagnosis

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29
Q

Delay in referral, negligent correct diagnosis

A

Wright v Cambridge Medical Group

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30
Q

When is the material contribution to injury test used

A

when several potential causes combine together to cause the damage

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31
Q

What do the cases have to be a form of causally for material contribution to injury?

A

Cumulative causation

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32
Q

What is cumulative causation?

A

Takes into account both innocent and negligent exposures

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33
Q

What is alternative causation?

A

Assumes EITHER D’s negligence OR other factor is the cause

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34
Q

Bonnington Castings v Wardlaw general

A

Swing grinders, pneumatic hammers

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35
Q

What was the harm in Bonnington Castings v Wardlaw?

A

Pneumoconiosis

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36
Q

Bonnington Castings v Wardlaw judgment

A

Negligence in failing to maintain ventilation for swing, but not operation of hammers

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37
Q

What was negligence taken to have caused of the total exposure in Bonnington Castings v Wardlaw?

A

20%

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38
Q

What did Lord Reed say of the material contribution to injury test, in terms of the amount of contribution

A

Any kind is sufficient, as long as above a minimal point

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39
Q

What latin saying encompasses Lord Reid’s view of contribution in Bonnington Castings v Wardlaw?

A

De minimis non curat lex

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40
Q

De minimis non curat lex

A

The law does not concern itself with small matters

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41
Q

Holtby v Brigham & Cowan general

A

Asbestosis, different employers

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42
Q

Holtby v Brigham & Cowan judgment

A

Look at quantifiable part of exposure and create employment history to divide responsibility on a ‘time exposure’ basis

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43
Q

How did the court in Holtby v Brigham & Cowan explain full damages in Bennington?

A

Question of apportionment not raised

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44
Q

Asbestosis, different employers

A

Holtby v Brigham & Cowan

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45
Q

Why is it crucial that the injury for material contribution to injury is cumulative?

A

Every particle/exposure makes the illness a bit worse

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46
Q

What does the decision on apportionment in Holtby do to C?

A

Throws onus on C to sue and recover against all who contributed in order to get full compensation

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47
Q

What is the only way C under material contribution to injury can recover full compensation?

A

Find all who contributed and sue them

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48
Q

What is the ‘quantifiable part’ of exposure?

A

Length and intensity of exposure

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49
Q

Bailey v MoD general

A

Inappropriate post-op care, further surgery, vomit

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50
Q

Inappropriate post-op care, further surgery, vomit

A

Bailey v MoD

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51
Q

Bailey v MoD judgment

A

Negligence led to C’s weakness, which was cumulative cause of brain damage

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52
Q

What case shows the operation of material contribution to injury test outside of employment-related injuries?

A

Bailey v MoD

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53
Q

Bailey on material contribution to injury test

A

Should be confined to situations satisfying ‘but for’ test in normal way for coherence

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54
Q

Stapleton on material contribution to injury test

A

Any positive mechanism by which the injury occurred should be causal, but THEN consider if C can claim

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55
Q

Who said any positive mechanism by which the injury occurred should be causal?

A

Stapleton

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56
Q

Who thought the material contribution to injury test should be confined to situations satisfying ‘but for’ test in normal way for coherence?

A

Bailey

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57
Q

Miller on the material contribution to injury test

A

If D’s negligence is one of two or more alternative causes, need to satisfy ‘but for’, but if cumulative then evidential hurdle is lower

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58
Q

Who criticised the material contribution to injury test for lowering the evidential hurdle based on the type of injury?

A

Miller

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59
Q

Rahman v Arearose Ltd general

A

Workplace beating, blind in right eye from hospital

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60
Q

Rahman v Arearose ltd judgment

A

Confirmed proportionate damages are awarded even where causative factors operate concurrently

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61
Q

What case Confirmed proportionate damages are awarded even where causative factors operate concurrently

A

Rahman v Arearose ltd

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62
Q

Weir on Rahman v Arearose ltd

A

No scientific basis for attribution of causality in this way - C is not half mad because of X and half made because of Y

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63
Q

Who said that C is ‘as mad as he is because of what both of them did’, criticising attribution of causality in Rahman v Arearose ltd?

A

Weir

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64
Q

Workplace beating, blind in right eye from hospital

A

Rahman v Arearose ltd

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65
Q

What two academics debate over the proper application of the material contribution test?

A

Miller and Bailey

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66
Q

Bailey on the proper application of the material contribution test

A

It is a particular application of ‘but for’ test for cumulatively caused injuries

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67
Q

Why did Miller reject Bailey’s view that material contribution to injury is just a particular application of ‘but for’ test?

A

Bonnington wasn’t dependent on knowledge of magnitude or even existence of threshold in relationship linking dust concentration to respiratory function

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68
Q

When is the material contribution to risk test used?

A

When C can’t prove D’s negligence either made a difference OR that D materially contributed - just increased likelihood C would suffer

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69
Q

McGhee v National Coal Board general

A

Brick kilns, cycle not shower, dermatitis

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70
Q

Brick kilns, cycle not shower, dermatitis

A

McGhee v National Coal Board

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71
Q

McGhee v National Coal Board judgment

A

Material increase in risk the same as material contribution to injury

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72
Q

Why could C in McGhee v National Coal Board not use but for or material contribution to injury?

A

Divergent medical opinion and can’t prove difference due to lack of medical info

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73
Q

Wilsher v Essex AHA general

A

Newborn baby, RLF

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74
Q

Newborn baby, RLF

A

Wilsher v Essex AHA

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75
Q

Wilsher v Essex AHA judgment

A

Rejected material contribution to risk is the same as injury - required single agent before departing from but for or material contribution to injury test

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76
Q

what distinguished McGhee from Wilsher?

A

Only one agent involved in McGhee, as opposed to 5 independent possible causes in Wilsher

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77
Q

How many independent possible causes were there in Wilsher?

A

5

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78
Q

Fairchild v Glenhaven Funeral Services general

A

Mesothelioma, many employers, delayed symptoms

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79
Q

Mesothelioma, many employers, delayed symptoms

A

Fairchild v Glenhaven Funeral Services

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80
Q

Fairchild v Glenhaven Funeral Services judgment

A

Proving increase in risk is enough for causation

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81
Q

In what case did the HoL cast doubt on McGhee saying material increase in risk is the same as injury?

A

Wilsher v Essex AHA

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82
Q

What case reiterated the view of McGhee in Wilsher?

A

Fairchild v Glenhaven Funeral Services

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83
Q

What did the HoL in Fairchild v Glenhaven Funeral Services use McGhee as?

A

The ‘fons et origo’ of the principle of material contribution to risk

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84
Q

What were the HoL careful to say in Fairchild v Glenhaven Funeral Services?

A

Reasoning only applied to facts of Fairchild

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85
Q

Per Lord Bingham, what is the situation needed for material contribution to risk test to apply?

A

Exposure in workplace, range of negligent exposures and no other significant background cause that might explain the illness (single agent)

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86
Q

Who doubted the single agent point in Fairchild?

A

Hoffmann

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87
Q

Who gave the three things needed to use material contribution to risk test, and in what case?

A

Lord Bingham in Fairchild v Glenhaven Funeral Services

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88
Q

In what case did Hoffmann show a reluctant withdrawal from his scepticism towards the single agent point in Fairchild v Glenhaven Funeral Services?

A

Baker v Corus

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89
Q

What did Hoffmann say of the test formulated in Fairchild v Glenhaven Funeral Services extra-judicially?

A

He and the other Law Lords ‘failed [the] test quite badly’ of creating coherent and principled exceptions

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90
Q

What judge stated extra-judicially that He and the other Law Lords ‘failed [the] test quite badly’ of creating coherent and principled exceptions in Fairchild?

A

Lord Hoffmann

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91
Q

Barker v Corus general

A

Asbestos from employer and self-employed

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92
Q

Asbestos from employer and self-employed

A

Barker v Corus

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93
Q

Barker v Corus judgment

A

Not necessary for all exposures to be tortious, and C’s personal carelessness doesn’t prevent Fairchild but may be reflected in CN damages

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94
Q

What case showed not necessary for all exposures in material contribution to risk to be tortious?

A

Barker v Corus

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95
Q

What did Lord Hoffmann require there be to limit the material contribution to risk test in Barker?

A

Single agent

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96
Q

What is recovery under material contribution to risk?

A

Severable

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97
Q

What case gave that recovery under material contribution to risk is severable?

A

Barker v Corus

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98
Q

What were the court split on in Barker v Corus?

A

Apportionment of damages

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99
Q

What did the majority say on recovery in Barker?

A

Only proportional recovery to risk increased

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100
Q

What did the minority say on recovery in Barker?

A

Had to be liable for everything, with onus on D to join others responsible under classic causation rules

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101
Q

What did Lord Rodger say to reject proportionate damages in Barker?

A

In effect allows recovery fro loss of chance

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102
Q

Compensation Act 2006 s.3

A

Adopted Rodger’s approach in Barker for mesothelioma cases caused by asbestos

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103
Q

What Act adopted Rodger’s approach in Barker?

A

Compensation Act 2006 s.3

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104
Q

Sienkiewicz v Grief (UK) general

A

Asbestos fibres from negligence and environment

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105
Q

Asbestos fibres from negligence and environment

A

Sienkiewicz v Grief (UK)

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106
Q

Sienkiewicz v Grief (UK) judgment

A

Rejected s.3 CA 2006 created special rule for mesothelioma - common law rules on causation are the same

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107
Q

What case Rejected s.3 CA 2006 created special rule for mesothelioma - common law rules on causation are the same

A

Sienkiewicz v Grief (UK)

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108
Q

Sienkiewicz v Grief (UK) on rock of uncertainty

A

It explains why there is a departure from normal causation rules in material contribution to risk - once rock is removed, rule would disappear

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109
Q

In what case was it made clear that s.3 CA06 only applies if material risk is held to establish causal link - exposure does not automatically satisfy causation?

A

Sienkiewicz v Grief (UK)

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110
Q

What case do L&O contrast Sienkiewicz v Grief (UK) with?

A

Hotson v East Berks

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111
Q

Why do L&O contrast Sienkiewicz v Grief (UK) with Hotson?

A

To show distinction between scientific and personal uncertainty, where only the former allows material contribution to risk test

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112
Q

What is scientific uncertainty?

A

Can’t say what amount of harm is needed to cause the injury

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113
Q

What is personal uncertainty?

A

Can’t say if C has suffered known amount of harm to cause the given injury

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114
Q

Who first began to express concern about Fairchild, and in what case?

A

Lord Brown in Sienkiewicz v Grief (UK)

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115
Q

What was Lord Brown sceptical of in Sienkiewicz v Grief (UK) ?

A

‘Rock of uncertainty’ to demarcate cases where Fairchild applies from those where it doesn’t

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116
Q

Durham v BAI (Run Off) general

A

Insurance policy

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117
Q

Durham v BAI (Run Off) judgment

A

Crucial C actually suffers mesothelioma, not JUST increase in risk

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118
Q

what case made it clear that C actually needs to suffer mesothelioma to use material contribution to risk test?

A

Durham v BAI (Run Off)

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119
Q

Who echoed Brown in Sienkiewicz in Durham v BAI (Run Off)?

A

Neuberger

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120
Q

What did Neuberger say in Durham v BAI (Run Off) of Fairchild?

A

Given problems defining its scope, better to have left it to P

121
Q

According to Lord Mance in Durham v BAI (Run Off), legal responsibility is for what under material contribution to risk test?

A

Disease itself on a ‘weak’ view of causal link, rather than for risk created by exposing C to disease

122
Q

What judge in what case stated legal responsibility is for disease itself under material contribution to risk test

A

Lord Mance in Durham v BAI (Run Off)

123
Q

Who suggested in Durham v BAI (Run Off) that courts should have left it to P in Fairchild?

A

Lord Neuberger

124
Q

What happens if damage under the material contribution to risk test is indivisible?

A

Still proportionate damages

125
Q

Hoffmann extra-judicially on Fairchild and judgment in Sienkiewicz

A

Wished they had rejected Fairchild in Sienkiewicz and left it to P to come up with a more conservative approach

126
Q

What did Laleng say of Fairchild?

A

It is implicit that it is limited to mesothelioma

127
Q

Why is Laleng’s view of Fairchild doubted?

A

Hoffmann stated it would be an arbitrary distinction which courts could not make to limit Fairchild just to mesothelioma

128
Q

Millett on material contribution to risk potential cases extra-judicially

A

To apply outside mesothelioma, C would need to show similar ‘rock of uncertainty’

129
Q

Who said it would be an arbitrary distinction which courts could not make to limit Fairchild just to mesothelioma?

A

Hoffmann

130
Q

Who said it was implicit that Fairchild is limited to mesothelioma?

A

Laleng

131
Q

Why do L&O think Wilsher would now be excluded from material contribution to risk?

A

Not single agent and nature of evidential certainty was such that they knew how it was caused, just hard to prove attribution to D’s neligence

132
Q

How do L&O explain the move from normal negligence damages to proportionate in material contribution to risk?

A

C already benefitting from relaxation of ordinary causation rules so would be too lenient

133
Q

Who explain why damages are proportionate in material contribution to risk?

A

L&O

134
Q

Ibbetson and Steele on material contribution to risk

A

Unjust that negligent Ds as a group are privileged over mesothelioma suffers, which would be the consequence under ordinary rules

135
Q

Who explains the position under material contributon to risk as avoiding the unjust result that negligent Ds are privileged over mesothelioma sufferers?

A

Ibbetson and Steele

136
Q

How do L&O adopt Ibbetson and Steele’s argument on material contribution to show it could apply to more situations than just mesothelioma?

A

Whenever uncertainty is personal to C, negligent Ds may be privileged over Cs, so should extend to these situations

137
Q

When is the ‘doubling the risk’ approach considered more appropriate?

A

When multiple causes are involved

138
Q

Who proposed the ‘doubling the risk’ approach?

A

Lords Phillips and Dyson in Sienkiewicz

139
Q

What did Kerr say of the doubling the risk approach?

A

Real danger that such evidence has a false air of authority

140
Q

Who thought epidemiological evidence has a real danger of having a false air of authority?

A

Kerr

141
Q

What did the other members of the SC say in Sienkiewicz with regard to epidemiological evidence for doubling the risk approach?

A

Need evidence linking disease in the individual C to D’s negligence - evidence tends to focus on GENERAL, not specific

142
Q

What case required epidemiological evidence to link disease in individual C to D’s negligence - not just GENERAL evidence?

A

Sienkiewicz

143
Q

Who said Fairchild is a ‘de facto mesothelioma exception’?

A

Laleng

144
Q

Why did Laleng see Fairchild as a ‘de facto mesothelioma exception’?

A

Rock of uncertainty doesn’t seem to have been reached in any other case

145
Q

West v MoD general

A

PTSD

146
Q

West v MoD judgment

A

Fairchild did not apply for PTSD

147
Q

Calvert v William Hill Credit

A

Fairchild did not apply for gambling addiction

148
Q

Wootton v J Doctor

A

Fairchild did not apply for an unwanted pregnancy

149
Q

Name at least two cases where Fairchild did not apply because no rock of uncertainty

A

Wootton v J Doctor; Calvert v William Hill Credit; West v MoD

150
Q

What is a case of indeterminate defendants?

A

Two or more Ds have acted tortuously towards D, who suffers injury but cannot determine who caused it

151
Q

What vital case is an example of indeterminate defendants?

A

Fairchild

152
Q

What vital case is NOT an example of indeterminate defendants?

A

McGhee

153
Q

Summers v Tice general

A

Shooting in C’s direction

154
Q

Shooting in C’s direction

A

Summers v Tice

155
Q

Summers v Tice judgment

A

Claim of alternative liability, so both Ds equally culpable unless absolved

156
Q

Fairchild on indeterminate defendants

A

Per Lord Bingham, most jurisdictions would afford a remedy to C in same circumstances

157
Q

What judge and in what case highlighted how most jurisdictions would afford a remedy to C in a case of indeterminate defendants?

A

Lord Bingham in Fairchild

158
Q

Fitzgerald v Lane general

A

Pedesterian, two cars, tetraplegia

159
Q

Fitzgerald v Lane judgment

A

Followed Fairchild - both drivers liable

160
Q

Sindell v Abott Laboratories general

A

Vaginal cancerous lesions, 200 manufacturers, genetic defect of drug

161
Q

Sindell v Abott Laboratories judgment

A

All manufacturers liable in proportion to market shares

162
Q

What case on indeterminate Ds was from the US?

A

Sindell v Abott Laboratories

163
Q

What judge and in what case criticised Sindell v Abott Laboratories?

A

Hoffmann in Fairchild

164
Q

What did Hoffmann say of market-share liability imposed in Sindell v Abott Laboratories ?

A

Declined to speculate if it would be imposed in English law

165
Q

How did Hoffmann in Fairchild criticise Sindell v Abott Laboratories?

A

Additional manufacturers did not materially increase risk of injury, so fell outside of the Fairchild principle

166
Q

Why did the case of Sindell v Abott Laboratories fall outside the Fairchild principle, according to Hoffmann?

A

Additional manufacturers did not materially increase risk of injury

167
Q

In what case was loss of chance recovery clearly rejected?

A

Hotson v East Berkshire AHA

168
Q

What case showed the HoL being asked to reconsider Hotson v East Berkshire AHA on loss of chance?

A

Gregg v Scott

169
Q

Gregg v Scott general

A

Lump under arm, 9 months, cancerous, 42% to 25%

170
Q

Lump under arm, 9 months, cancerous, 42% to 25%

A

Gregg v Scott

171
Q

What was C suing for in Gregg v Scott?

A

Loss of expectation of lifr

172
Q

Why was C unable to recover in Gregg v Scott?

A

Balance of probabilities showed C probably wouldn’t have survived even if started treatment 9 months earlier

173
Q

What did Gregg v Scott show about recovery for loss of chance?

A

Not given outside of Fairchid

174
Q

what two reasons did HoL give in Gregg for no recovery for lost chance?

A

C has not yet suffered harm, and balance of probabilities creates a roughness of justice which is just the way it is, to avoid the problematic valuing damage for lost chances

175
Q

Why was it an issue that C had no yet suffered harm in Gregg?

A

Per Hale, the coin was still in the air - compensation would regard loss of chance as an asset in itself which has been damaged

176
Q

What did the HoL highlight to be a particular problem in Gregg to allow loss of chance recovery?

A

Problematic and inappropriate for negligence to embark on valuing damage through lost chances

177
Q

What judge in minority in Gregg refused to accept likelihood of damage made quantum too difficult?

A

Lord Nicholls

178
Q

Who highlighted that 45% chance of recovery is just as much of a loss as 55%, so why only allow recovery for the latter?

A

Nicholls in Gregg

179
Q

Who said it would be ‘seriously deficient’ not to recognise negligent diagnosis/treatment diminishing prospect of recovery as a wrong?

A

Nicholls in Gregg

180
Q

What distinction did Nicholls draw in Gregg?

A

Between evidential and scientific uncertainty, where only the latter is sufficient for a claim

181
Q

Who argued loss of chance of avoiding cancer could be claimed as consequential upon physical injury in Gregg?

A

Lord Hope

182
Q

What case rejected Lord Hope’s argument in Gregg?

A

Rothwell v Chemical & Insulating

183
Q

Rothwell v Chemical & Insulating general

A

Asymptomatic pleural placques

184
Q

Why did Rothwell v Chemical & Insulating reject Hope in Gregg?

A

Mere presence of physical change not increasing likelihood of disease cannot ground a claim for consequential injury based on chance of contracting disease in future

185
Q

What case made it clear that the Mere presence of physical change not increasing likelihood of disease cannot ground a claim for consequential injury based on chance of contracting disease in future?

A

Rothwell v Chemical & Insulating

186
Q

Why did Hoffmann apply Hotson in Gregg?

A

Couldn’t distinguish the case

187
Q

Hale in Gregg

A

Allowing both loss of an outcome and loss of a chance would be very favourable to C and require more complex evidence, introducing unpredictability

188
Q

What judge in Gregg stated that allowing both loss of an outcome and chance would be too favourable to C?

A

Hale

189
Q

Who worried about the unpredictability of the law if loss of a chance were allowed, and in what case?

A

Hale

190
Q

What three judges were in the majority in Gregg?

A

Hale, Hoffmann and Phillips

191
Q

What three judges were in the minority in Gregg?

A

Nicholls and Hope

192
Q

Who found it unsatisfactory in Gregg that PEL recovery is allowed but not loss of a chance in personal injury?

A

Hale

193
Q

How did Phillips categorise Hotson?

A

A case about an adverse outcome, not loss of chance

194
Q

What judge in majority in Gregg left open award for loss of chance?

A

Phillips

195
Q

How did Phillips leave open award for loss of chance in Gregg?

A

Hotson was about adverse outcome, not loss of chance

196
Q

What scenario did phillips reject in Gregg?

A

Coin in the air scenario - can’t claim for loss of chance when there is no actual injury yet

197
Q

What did Hoffmann say extra-judicially about causation rules?

A

Difficulties arise from different causation rules depending on time action is brought

198
Q

Who highlighted the difficulties which arise from different causation rules depending on time action is brought?

A

Hoffmann, extra-judicially

199
Q

Who highlighted the difficulty of assessing damage value of loss of chance, such that it doesn’t end up compensating for the injury itself without fulfilling balance of probabilities?

A

Voyiakis

200
Q

Why was Voyiakis sceptical about recovery for loss of chance?

A

Difficulty in assessing damage

201
Q

What is the difficulty Voyiakis highlights with assessing damage for loss of chance?

A

If by reference to ultimate injury, reducing based on chance of avoiding it, this compensates the injury itself without establishing balance of probabilities

202
Q

Wright v Cambridge Medical Group on loss of chance

A

Lords Neuberger and Elias LJ felt Gregg suggested loss of chance should have no place in personal injury actions

203
Q

What two judges in what case felt Gregg suggested loss of chance should have no place in personal injury actions?

A

Wright v Cambridge Medical Group, per Lords Neuberger and Elias LJ

204
Q

Tabett v Gett

A

HC of Australia rejected loss of chance as compensatable in negligence, at least for pI

205
Q

What case shows another jurisdiction rejecting loss of chance as compensatable in negligence, at least for personal injury, and what jurisdiction?

A

Tabett v Gett, HC of Australia

206
Q

Allied Maples v Simmons & Simmons general

A

Protection for contingent liabilities, deletion of warranty

207
Q

What was it only necessary to show in Allied Maples v Simmons & Simmons?

A

C would have relied on proper advice if given

208
Q

What was it NOT necessary to show in Allied Maples v Simmons & Simmons?

A

3rd would have given protection to C on a balance

209
Q

How does Coote explain Allied Maples v Simmons & Simmons ?

A

Loss of chance had economic value, which would be artificial in personal injury claim

210
Q

What case shows different treatment between loss of chance for economic loss and for personal injury?

A

Allied Maples v Simmons & Simmons

211
Q

What is the rationale for novus actus?

A

‘Fairness’ (Corr v IBC Vehicles)

212
Q

What case stated that NA acts for ‘fairness’?

A

Corr v IBC Vehiclesl

213
Q

Latin name for intervening acts

A

Novus actus interveniens

214
Q

What judges in Wright v Cambridge Medical Group stated that ‘considerations of policy loom large’ in NA?

A

Elias LJ

215
Q

In what case did Elias LJ state ‘considerations of policy loom large’ in NA?

A

Wright v Cambridge Medical Group

216
Q

Empress Car v National Rivers

A

Drum of diesel, 3rd party tap

217
Q

What did Lord Hoffmann say courts should look for for NA in Empress?

A

Deliberate human acts/extraordinary natural events

218
Q

What did Lord Hoffmann in Empress say courts should consider before attributing responsibility?

A

Scope and purpose of rule in respect of which responsibility is being applied

219
Q

What Act removed CN as a complete defence?

A

Law Reform (Contributory Negligence) Act 1945

220
Q

What did the LR(CN)A allow courts to do?

A

Apportion damages where both D and C’s fault is causally relevant

221
Q

Yachuk v Oliver Blais general

A

Wild west

222
Q

Yachuk v Oliver Blais judgment

A

Chain not broken as carelessness exactly the kind of thing that might have been expected

223
Q

What case suggests less is expected from children, and thus no NA for their negligence?

A

Yachuk v Oliver Blais

224
Q

McKew v Holland & Hannen general

A

Occasional numbness, jumped down stairs

225
Q

McKew v Holland and Hannen judgment

A

Jumping alone wouldn’t have broken chain because panic, but walking down steep stairs w/o handrail or help did

226
Q

What is more likely to have been used now in McKew?

A

CN - chain not broken

227
Q

Spencer v Wincanton Holdings general

A

Petrol amputee

228
Q

Spencer v Wincanton Holdings judgment

A

Per Sedley J, ‘unreasonableness’ is from irrationality to simple unwisdom, but only McKew unreasonable gives NA

229
Q

What case shows a degree of tension between unreasonableness which is an NA, and unreasonableness which leads to CN?

A

Spencer v Wincanton Holdings

230
Q

Petrol amputee

A

Spencer v Wincanton Holdings

231
Q

What judge and in what case showed the broad ambit of ‘unreasonableness’, but required high degree for NA?

A

Sedley J in Spencer v Wincanton Holdings

232
Q

Jump flight of stairs

A

McKew v Holland and Hannen

233
Q

Knightley v Johns general

A

One-way tunnel in Birmingham

234
Q

Knightley v Johns judgment

A

Broken by inspector negligence, with key factor being the NUMBER of acts of carelessness

235
Q

What did the court stress about rescuers in Knightley v Johns?

A

Rescuer won’t generally be denied a claim based on carelessness

236
Q

What did Stephenson LJ highlight in Knightley v Johns?

A

Number of errors made the result unanticipated, emphasising deliberate disregard of police standing orders

237
Q

What judge in Knightley v Johns emphasised that the number of errors made the result unanticipated, emphasising deliberate disregard of police standing orders?

A

Stephenson LJ

238
Q

What did Stephenson LJ say of the specific requirement for rescuer’s negligent act to be an NA in Knightley?

A

‘Wanton interference or disregard for rescuer’s own safety’

239
Q

Baker v TE Hopkins general

A

Doctor, two workers in well

240
Q

Baker v TE Hopkins judgment

A

Rescuer needs to act with ‘wanton disregard’ before NA of rescuer whose actions were necessitated by D’s negligence

241
Q

Sayers v Harlow general

A

Locked in loo, climbed out

242
Q

Locked in loo

A

Sayers v Harlow

243
Q

Well, two workers

A

Baker v TE Hopkins

244
Q

Sayers v Harlow judgment

A

Seemingly unreasonable conduct necessitated by D’s negligence may not always be NA if reasonable in circumstances

245
Q

What Act allowed apportionment of damages between tortfeasors whose contribution has affected judgments on whether intervening 3rd negates responsibility?

A

Civil Liability (Contribution) Act 1978

246
Q

What is the usual finding for damage under Civil Liability (Contribution) Act 1978 if several tortfeasors are responsible in the same way, for the same damage

A

Joint and several liability

247
Q

What happens if one D is bankrupt/insolvent under Civil Liability (Contribution) Act?

A

Share of the others, if jointly and severally liable, increases proportionately

248
Q

The Oropesa general

A

Collision, lifeboat capsized

249
Q

The Oropesa judgment

A

Emergency situation made decision by 2nd D unlikely to be negligent/break causal link

250
Q

The Oropesa emphasised what in regard to the situation of C in the case?

A

‘in a very perilous plight’

251
Q

Collision, lifeboat capsized

A

The Oropesa

252
Q

Webb v Barclays Bank

A

Suggested only gross negligence in relation to intervening medical treatment will break causal link

253
Q

What case suggests only gross negligence in relation to intervening medical treatment will break causal link?

A

Webb v Barclays Bank

254
Q

Mahony v Krushich

A

Apportionment fairest when both original and subsequently negligent parties before court

255
Q

Why was it suggested apportionment fairest when both original and subsequent negligent parties are before court in Mahony v Krushich?

A

Risk of negligent medical treatment entailed by initial injury, so shouldn’t end 1st D’s responsibility

256
Q

What case stated that apportionment is fairest when both original and subsequent negligent parties are before court ?

A

Mahony v Krushich

257
Q

Wright v Cambridge Medical Group general

A

Untimely reference, negligent treatment

258
Q

Wright v Cambridge Medical Group per Lord Neuberger

A

Only serious or gross negligent would prevent 1st D’s initial negligence from being a cause

259
Q

What did Elias and Smith LJJ in Wright v Cambridge highlight?

A

Doctor’s negligence was still A factual cause - intervening negligence did not negate his responsibility

260
Q

Stapleton on Wright v Camrbidge

A

Neutral language of causation masked value judgments

261
Q

What judges in Wright v Cambridge focused on whether or not 1st D’s negligence was still a factual cause?

A

Elias and Smith LJJ

262
Q

What judge in Wright v Cambridge required serious or gross negligence by 2nd D before 1st D’s negligence no longer a cause?

A

Lord Neuberger

263
Q

What two cases did L&O give for when 1st D’s liability can be ended?

A

By NA or if D’s DoC to C is limited

264
Q

Who criticised the case of Wright v Cambridge for masking value judgments?

A

Stapleton

265
Q

How did Stapleton argue they masked value judgments in Wright v Cambridge?

A

Through neutral language of causation

266
Q

Rouse v Squires general

A

Lorry pile up

267
Q

Rouse v Squires judgment

A

Responsibility apportioned 25/75 between original lorry and fourth driver

268
Q

What was highlighted in Rouse v Squires to justify apportionment?

A

Lack of sufficient time to notice accident and evade

269
Q

Lorry pile up

A

Rouse v Squires

270
Q

Wright v Lodge general

A

Car broken down, carriageway

271
Q

Wright v Lodge judgment

A

1st driver negligent not to push off, so 10% to passenger, but lorry sole cause of injuries to other drivers

272
Q

Car broken down, carriageway

A

Wright v Lodge

273
Q

What was the percentage of responsibility apportioned to driver of car broken down in Wright v Lodge, and to who?

A

10% to his passenger

274
Q

Why is Wright v Lodge hard to understand?

A

Why is causation denied to injuries arising as a consequence of the initial hit?

275
Q

Froom v Butcher general

A

Seatbelt

276
Q

Froom v Butcher on Civil Liability (Contribution) Act 1978

A

Guidelines of 25% are appropriate when determining apportionment under this Act (to 1st D probably?)

277
Q

When can a deliberate act not break the chain of causation?

A

D under an exceptional duty to take care to prevent 3rd injuring C

278
Q

Lamb v Camden LBC general

A

Landowner, damage by squatters

279
Q

Landowner, damage by squatters

A

Lamb v Camden LBC

280
Q

Lamb v Camden LBC judgment

A

If duty to prevent squatters’ deliberate behaviour, cannot complain behaviour was NA

281
Q

Why couldn’t they claim squatters’ deliberate behaviour was NA in Lamb v Camden LBC?

A

The behaviour was the occasion of the breach of duty

282
Q

Corr v IBC Vehicles general

A

Disfigurement, clinical depression, suicide

283
Q

Corr v IBC Vehicles on NA

A

Chain not broken by deliberate act of C as depression impaired ability/capacity to make a reasoned judgment.

284
Q

What case showed that whether a deliberate act is NA depends on the capacity of C to make a reasoned judgment?

A

Corr v IBC Vehicles

285
Q

Kirkham v Chief Constable of Greater Manchester Police general

A

Suicide, depressed prisoner

286
Q

Kirkham v Chief Constable of Greater Manchester judgement

A

Responsible for creating environment in which V’s suicidal tendencies developed

287
Q

Name at least two cases considering suicide as a deliberate act for NA

A

Kirkham v Chief Constable of Greater Manchester; Corr v IBC Vehicles; Reeves v MPC

288
Q

Empress Car on deliberate acts as NA

A

Chain not broken because policy of pollution offence was to require occupants to take all possible steps to stop such behaviour

289
Q

What three cases show the courts explicitly looking to the nature of D’s duty to determine if deliberate act was NA or not?

A

Empress Car; Lamb v Camden LBC; Reeves v MPC

290
Q

Reeves v MPC confirmed what case?

A

Empress

291
Q

Reeves v MPC on deliberate acts as NA

A

Sound of mind at time of suicide, so voluntary BUT duty to prevent self-harming so no NA

292
Q

Who expressed concern about medical evidence in Reeves v MPC?

A

Hoffmann

293
Q

Why was there no NA in Reeves v MPC?

A

Would make a nonsense of the rule imposing duty if very act it was supposed to protect was an NA

294
Q

Keenan v UK

A

Once prisoner is suicide risk, Article 2 requires reasonable steps to prevent suicide

295
Q

Orange v Chief Constable of West Yorkshire Police

A

No general duty to prevent harm if no suicide risk

296
Q

Vellino v Chief Constable of Greater Manchester

A

No duty to stop persons they are attempting to arrest from harming themselves

297
Q

What case shows Reeves v MPC is consistent with Article 2 ECHR?

A

Keenan v UK

298
Q

No duty to stop persons they are attempting to arrest from harming themselves

A

Vellino v Chief Constable of Greater Manchester

299
Q

No general duty to prevent harm if no suicide risk

A

Orange v Chief Constable of West Yorkshire Police

Law Second Year (62 decks)

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