Unit 2.2- Causation and Defences

Question 1

What are the three elements of causation?

Answer 1

Factual causation

Intervening events

Legal causation

Question 2

What is factual causation?

Answer 2

Barnett

But for the defendant’s actions, would the claimant have been injured

Question 3

What are the two ways in which factual causation can be applied?

Answer 3

Standard method

Modified method

Question 4

Explain the standard application of factual causation

Answer 4

‘All or nothing’ (Hoston)

For the claimant to show on the balance of probabilities that the defendant caused their injury

Question 5

Explain the modified application of factual causation

Answer 5

Splits into two limbs
Usually for when there are multiple causes that together contributed to harm

Limb 1) The defendant materially contributed to the claimant’s harm (Boddington)

Limb 2) The defendant materially contributed to the risk of harm (McGhee v National Coal Board)
- Recent case law (Greif) suggests this is now limited to cases of scientific uncertainty (Mesothelioma)

Wilsher- evidence of 5 possible cases of baby being blind, claimant unsuccessful as could not prove one on balance of probabilities

Question 6

What can be done when there is more than one cause?

Answer 6

If injury divisible, get proportionate damages from all defendants (Holtby- asbestos)

If injury is not divisible (i.e. broken leg) claimant chooses one defendant
- That defendant can then use Civil Liability (Contribution) Act 1978 to get share from other defendants

Question 7

What is the case law regarding mesothelioma?

Answer 7

Fairchild- does not have to be proven that defendants are absolutely responsible for claimant’s injury. Claimants can rely on material increase risk approach.

Barker- went against claimant favour, said defendants are only proven to cause risk of injury and therefore damages shares proportionately.

Compensation Act 2006- overruled Barker, said defendants are wholly liable and full sum can be recovered from them.

Question 8

What is mesothelioma?

Answer 8

Fatal condition triggered by asbestos fibres

Question 9

Why does an intervening act need to be considered?

Answer 9

For there to be causation, the chain of causation cannot be broken

Question 10

Does negligent intervention of a third party break the chain of causation?

Answer 10

No, unless they are unforeseeable
- Knightly v John: motorcycle cop crashed when going wrong way down tunnel after correct way blocked by defendant’s accident. Defendant not liable- too remote

• Rousse v Squires: car crash after defendant blocked motorway with truck to protect another crash incident. Defendant found liable as crashing into his vehicle was reasonable consequence

Question 11

Does instinctive/ natural intervention of a third party break the chain of causation?

Answer 11

No

Scott v Shepherd- defendant threw firework away after it was thrown at him, injured someone else. Chain between original thrower and person injured not broken

Question 12

Does negligent medical treatment break the chain of causation?

Answer 12

Not normally

Rahman v Arearose- negligent hospital treatment did not break chain of causation between claimant’s psychiatric injury and employer’s negligence

Question 13

Will intervening acts by claimant break chain of causation?

Answer 13

Only if entirely unreasonable in all circumstances

McKew v Holland- defendant’s negligence had weakened claimant’s leg, but claimant descended steep staircase when leg gave way- claimant had acted unreasonably by going down stairs

Wieland v Cyril Lord Carpets Ltd (compare to above)- claimant had injured neck due to defendant’s negligence, wore neck collar which mean she couldn’t use glasses, fell down stairs didn’t break chain of causation

Question 14

What is legal causation?

Answer 14

Where the defendant can only be said to have caused the harm in question if it is not too remote

Question 15

What is the remoteness rule?

Answer 15

Relates to legal causation

Defendant only liable for reasonably foreseeable damage i.e. damage is only recoverable if a reasonable man could have foreseen it (Wagon Mount No. 1)

Question 16

What happened in Wagon Mound No. 1?

Answer 16

• Defendant operating ship
• Employees spilt oil into Sydney Harbour
• Claimant was ship builder and manager said oil floating not likely to ignite
• It did, defendant not liable for fire damage as it was not foreseeable

Held, test for remoteness is one of reasonable foreseeability- ‘is the damage of such a kind that the reasonable person would have foreseen it?’

Question 17

What are the two provisions to the remoteness rule?

Answer 17

Hughes v Lord Advocate- not necessary to foresee precise WAY in which the harm is caused, provided TYPE OF HARM is reasonably foreseeable

Robinson v Post Office- eggshell skull rule, if claimant suffers from a particular disability/ condition then claimant may recover in full from defendant even where defendant could not have foreseen claimant’s losses

Question 18

What are the defences to causation?

Answer 18

Voluntary Assumption of Risk (consent)

Illegality

Contributory Negligence

Question 19

Explain the defence ‘voluntary assumption of risk’

Answer 19

Complete defence

For it to succeed, defendant has to prove (Nettleship v Weston):

• Claimant had full knowledge of nature and extent of risk
• Claimant willingly consented to accept risk of being injured from defendant’s negligence (hard to show)

Question 20

Who is more/ less likely to succeed in raising the defence of volenti non fit injuria?

Answer 20

Rare:

• Employers v Employees due to doubts as to whether truly voluntary (Smith v Baker)
• Defendants v Rescuers- deemed to be ‘compelled by moral instinct’ (Haynes v Harwood- policeman who acted under compulsion to rescue people in imminent danger)

Successful:
- Against trespassers (Ratcliff v McConnell and another)

Question 21

What are the conditions restricting likelihood of rescuers acting under volenti non fit injuria?

Answer 21

Acting to recue persons/ property endangered b the defendant ‘s negligence

Acting under a compelling legal, social or moral duty

Conduct in circumstances was reasonable, natural and probable consequence of the defendant’s negligence

Question 22

What happened in Morris v Murray?

Answer 22

Drunkeness of pilot so obvious that claimant could be said to have accepted the risk of his own negligence

Compare to Dann v Hamilton

Question 23

What happened in Dann v Hamilton?

Answer 23

Confirmed that getting into car with drunk driver not volenti following RAT 1988
Though know driver is drunk, this does not imply consent

Question 24

What case outlines the two provisions of volenti?

Answer 24

Nettleship v Weston

Knowledge of danger and full consent to danger

Question 25

Main authority on illegality defence?

Answer 25

Pitts v Hunt- partaking in illegal action can be a defence

Ashton v Turner- claimant was taking part in getaway vehicle so defendant (who was driving) successful in using this as defence against claimant (passenger)

Question 26

Define contributory negligence?

Answer 26

Claimant’s careless actions contribute to their injury

If proven, s1 Law Reform (Contributory Negligence) Act 1945 reduces damages from defendant

Question 27

Case law regarding Contributory Negligence?

Answer 27

Imminent danger- no CN even with hindsight would have acted differently (Jones v Boyce)

Drunk Driver- CN if you get in car knowing they’re drunk (Owens v Brimmel)

Helmet- CN to head injury (Capps)

Seatbelts- CN if don’t wear them (Froom)

Employee- courts generous, especially where work is dull/ repetitive (Caswell)

Children- no CN if reasonable action for child, child also has to be blameworthy (Gough)

Rescuer- only CN if acted with such a complete disregard for own safety (Baker v T E Hopkins)

Question 28

What does Baker v T E Hopkins tell us?

Answer 28

Rescuer only CN if acted with such a complete disregard for own safety

Question 29

What does Gough tell us?

Answer 29

Children no CN if reasonable action for child, child also has to be blameworthy

Question 30

What does Caswell tell us?

Answer 30

Employee courts generous as to no CN, especially where work is dull/ repetitive

Question 31

What does Froom tell us?

Answer 31

Seatbelts CN if don’t wear them

Question 32

What does Capps tell us?

Answer 32

No helmet= CN for head injuries

Question 33

What does Owens v Brimmel tell us?

Answer 33

CN if you get into car with known drunk driver

Question 34

What does Jones v Boyce tell us?

Answer 34

No CN for manner of behaviour in face of imminent danger, even if with hindsight you would have acted differently