Tort - Negligence (Causation & Defences)

Question 1

The ‘but for’ test

Answer 1

Barnett v Chelsea and Kensington Hospital Management Committee

Question 2

All or nothing approach (standard): C must show on the balance of probabilities that D caused the harm

Answer 2

Hotson v East Berkshire Area Health Authority

Question 3

What must be shown to satisfy the modified test (for multiple factors contributing to the same harm)

Answer 3

D’s actions materially contributed to the harm (Bonnington Castings v Wardlaw)

Question 4

If the harm was divisible, the court will apportion damages accordingly

Answer 4

Holtby v Brigham and Cowan

Question 5

What will be the solution if the harm is indivisible?

Answer 5

C may sue any one D for the whole loss but D can then seek a contribution from the other parties under the Civil Liability (Contribution) Act 1978

Question 6

If the breach materially contributed to the risk of harm it will be seen to have factually caused it in mesothelioma cases

Answer 6

Greif

Question 7

For Mesothelioma cases, if more than one employer is being sued the responsibility of each need not be categorically proven

Answer 7

Fairchild v Glenhaven

Question 8

Negligent acts only break the chain of causation if unforeseeable

Answer 8

Knightley v Johns

Question 9

Reckless or intentional acts are more likely to break the chain

Answer 9

Lamb v Camden

Question 10

Instinctive acts will not break the chain

Answer 10

Scott v Shepherd

Question 11

Negligent medical treatment will not usually break the chain

Answer 11

Rahman v Arearose Ltd

Question 12

Intervening acts by the claimant will only break the chain if entirely unreasonable in all the circumstances

Answer 12

McKew v Holland

Question 13

In dilemma cases, the method used to save yourself in the ‘agony of the moment’ will be reasonable even if in hindsight it was unreasonable

Answer 13

Jones v Boyce

Question 14

The defendant is only responsible for damage that is reasonably foreseeable

Answer 14

The Wagon Mount

Question 15

Only the type of harm needs to be foreseen, not the precise way it is caused

Answer 15

Hughes v Lord Advocate

Question 16

Eggshell scull rule

Answer 16

Robinson v Post Office

Question 17

What are the three defences to negligence?

Answer 17

Volenti
Illegality
Contributory Negligence

Question 18

What two things must be established before the defence of volenti can be relied upon? (+ Authority)

Answer 18

Nettleship v Weston:

1- C had full KNOWLEDGE of the nature and extent of the risk
2- C willingly ACCEPTED the risk

Question 19

Employers rarely succeed with the defence of volenti

Answer 19

Smith v Baker

Question 20

Rescuers are usually seen as being motivated by moral compulsion, not consent to risk

Answer 20

Haynes v Harwood

Question 21

The defendant may have a defence if the claimant was involved in an illegal enterprise at the time of injury

Answer 21

Pitts v Hunt

Question 22

What two things need to be shown to establish contributory negligence?

Answer 22

1- C was careless

2- C’s careless contributed to the harm

Question 23

What is the effect of contributory negligence?

Answer 23

Reduces C’s damages (s.1(1) Law Reform (Contributory Negligence) Act 1945)

Question 24

The court rarely reduces damages for claims against employers

Answer 24

Caswell v Powell Duffryn

Question 25

The level of contributory negligence of a child is judged against the standard of a reasonable child of the claimant’s age

Answer 25

Gough v Thorne

Question 26

For rescuers, contributory negligence is only found where they showed a ‘wholly unreasonable disregard for their own safety’

Answer 26

Baker v Hopkins

Question 27

Passengers and drivers will be liable for not wearing seatbelts

Answer 27

Froom v Butcher

Question 28

Passengers and drivers of motorbikes will be liable for not wearing Helmets

Answer 28

Capps v Miller

Question 29

Passengers who accept rides from drunken drivers are contributory negligent, even if they themselves are drunk

Answer 29

Owens v Brimmell

Question 30

How much will damages be reduced by if passenger wasn’t wearing their seatbelt/ helmet and:
1- Injury could have been avoided if they had
2- Injury would have been less severe
3- Injury would have been the same

Answer 30

1- 25%
2- 15%
3- 0%