Unit 2: Negligence: Causation and Defences

Question 1

The ‘but for’ test

Answer 1

‘But for the defendant’s act would this claimant have suffered harm?’

Question 2

The ‘all or nothing’ approach

Answer 2

Balance of probabilities test. When there could be more than one possible cause of harm to the claimant. Case of Wilsher v Essex Area Health Authority [1988], could not prove that he was harmed by the defendant’s negligence rather than by one of the other causes.

Question 3

The material contribution approach

Answer 3

Bonnington Castings Ltd v Wardlaw [1956], showed that one of the two reasons for his harm was the negligence, so the defendant materially contributed to the disease. Causation can be established if the negligence contributed to the claimant’s harm.

Question 4

Divisible injury

Answer 4

Holtby v Brigham and Cowan Ltd [2000], asbestos case, only had to pay for a proportion of the injury claims as could not tell when the asbestos affected the claimant from which employer.

Question 5

Indivisible injury

Answer 5

When two or more people are responsible for the same damage, the Civil Liability (Contribution) Act 1978 gives the court to apportion the damage between them, according to each person’s share of responsibility for the damage.

Question 6

Instinctive intervention of a third party

Answer 6

Does not break the chain of causation: Scott v Shepherd (1773) (case of firework being thrown into crowd)

Question 7

Negligent intervention of a third party

Answer 7

Dependant on facts.

Question 8

Novus actus interveniens

Answer 8

Lamb v Camden London Borough Council [1981], squatters, reckless conduct. Appearance of a new act - so it breaks the chain.

Question 9

Unreasonable conduct by claimant (causation)

Answer 9

McKew v Holland & Hannen & Cubitts (Scotland) Ltd [1969], descending steep staircase with injured leg, broke chain.

Question 10

Reasonable conduct by claimant (causation)

Answer 10

Wieland v Cyril Lord Carpets Ltd [1969], fell down stairs due to difficulty seeing from a neck brace, did not break chain.

Question 11

Claimant novus actus interveniens

Answer 11

Has to be entirely unreasonable in all the circumstances, otherwise it will simply be a natural event and not break the chain.

Question 12

Test for remoteness

Answer 12

Is the damage of such a kind that the reasonable person would have foreseen it? The Wagon Mound (No 1).

Question 13

‘Similar in type’ rule (remoteness)

Answer 13

Provided the type of injury is reasonably foreseeable, it is not necessary to foresee the precise way in which the injury is caused. Proviso. Hughes v Lord Advocate [1963].

Question 14

‘Egg shell skull’ rule (remoteness)

Answer 14

You take your victim as you find them. Proviso. If the claimant suffers a particular disability or has a particular condition, they can recover it in full from the defendant for their losses, even though the defendant could not have foreseen the full extend of the claimant’s loss.

Question 15

Volenti non fit Injuria

Answer 15

• the claimant had full knowledge of the nature and extent of the risk; and
• the claimant willingly consented to accept the risk of being injured due to the defendant’s negligence.
  Nettleship v Weston [1971]

Question 16

Illegality

Answer 16

The fact that the claimant was involved in an illegal enterprise at the time they were injured may sometimes provide the defendant with a defence. Pitts v Hunt [1990]. Must be a very close connection between the illegal activity of the claimant and the injury they suffer.

Question 17

Contributory negligence

Answer 17

• Carelessness on the claimant’s part; and
• that carelessness has contributed to the claimant’s damage. Law Reform (Contributory Negligence) Act 1945. Claim is not completely defeated, just damages are reduced.

Question 18

Contributory negligence and rescuers

Answer 18

Baker v TE Hopkins & Son Ltd [1959]. Only if a rescuer has shown a ‘wholly unreasonable disregard for his or her own safety’ is there likely to be a finding of contributory negligence.

Question 19

Contributory negligence and the dilemma rule

Answer 19

Jones v Boyce [1814-23]. If the method used by the claimant to try to save themselves ‘in the agony of the moment’ is found to be reasonable, they will not be found to be contributorily negligent.