Unit 2 - Negligence: Causation and Defences

Question 1

How do we establish Factual Causation?

Answer 1

Either the But For test (Barnett) or Material contribution or Material Increase in Risk

Question 2

What intervening acts may break the chain of causation ?

Answer 2

1. An instinctive natural response will not break the chain
   - Scott V. Shepherd (1773)
2. Nor will the negligent act of a third party provided that it’s foreseeable
   - Knightley v Johns
3. And even the deliberate act of a third party won’t break the chain, provided that it was foreseeable and that the defendant was responsible for the behaviour of the third party
   - Stansbie V. Troman [1948]
4. Finally, the claimant’s own behaviour will only break the chain if it’s unreasonable.
   - McKew v Holland

Question 3

What is the test for establishing If damages are too far removed ?

Answer 3

2. Defendants are liable for foreseeable kinds of harm, but the precise manner in which the harm is caused doesn’t have to be foreseeable. (The Wagon Mound)

○ Hughes v Lord Advocate [1963] - post office repairing underground cable - boy climbed in and out, knocking over lamp - fell into hole, explosion - C fell and suffered burns
- Court confirmed this rule - leaving lamps, burns were foreseeable - doesn’t matter if the how was unforeseeable if the injury type was

Question 4

What are some of the defences the defendant may argue ?

Answer 4

Contributory neg
Volenti/consent
Illegality