Webcasts Flashcards
What is the key question for factual causation?
Whether the D breach of duty was the real cause of the harm to C.
When determining factual causation what factors need to be considered?
- some causes may be more powerful than others
- some causes may be out of the ordinary
- some caused by human action rather than acts of nature
- some may be positive acts rather than omissions
- some may be voluntary acts rather than involuntary acts
- some may be deliberate or intentional acts rather than accidents
What is the main rule used for establishing causation?
The but for test, this asks whether the D breach of duty would have made any difference to the claimants harm.
Why and how do the courts modify the but for test?
In complex cases:
- material contribution to damage
- material increase of risk test
- the Fairchild exception
- this is used as a means of apportioning damages for different causes
Give a case example of the but for test in practice?
Cork - C suffered epileptic fits and doctor forbid him working at a height, got job as a painter and did not inform employer. If damage would not have occurred but for a particular fault then it is a cause of the damage, else it is not.
Give a case example of where the but for test was applied but the C failed to meet it?
Barnett - night watchman unknowingly drank tea containing arsenic. After vomiting for 3 hours he attended A&E, doctors refused to see him and he died 5 hours later. Hospital owed him a duty of care which was breached when the doctor would not see him, however even if he had received medical treatment he would still have died as the antidote would not have been administered in time. Claim failed.
What are the facts of McWilliams v Sir William Arroll?
C working at height and fell to his death. D in breach of failing to provide safety harness. Evidence showed he rarely, if ever, used one therefore he would have died anyway.
How might the but for test give an unfair result to the C, give an example?
If A starts a fire and so does B and they converge and destroy C’s property you do not know which fire was the cause using the but for test. Both are negligent and both owe C a duty of care.
What happens if fault is both on part of the D and the C?
The court can apportion damages according to principles developed in accordance with contributory negligence.
What is meant by the injury being indivisible?
C’s injuries is the product of one of several exposures (mesothelioma).
What is meant by the injury being divisible?
Separate exposure gives rise to separate damage which may perhaps worsen the subsequent exposure (more exposure to excessive noise, the worse the hearing could be).
What are the four main alternatives to the but for test?
- material contribution to harm
- material increase in risk
- the Fairchild exception
- apportionment
Where was the material contribution to damage test developed and what are the facts of the case?
Bonnington (indivisible injury) - C worked in a factory and was exposed to innocent dust and guilty dust and developed a lung condition. Difficult to prove but for the guilty dust he would not have developed this condition. They amended test to allow him to claim.
What are the important facts to remember about the Bonnington case?
- it was in the context of employers liability
- both sides put their case on an all or nothing basis, neither were saying the court could apportion some liability on the estimate of dust in the atmosphere
- no expert evidence as to respective contributions
- court could not make an apportionment
Where did the material increase in risk come from and what are the facts of the case?
McGhee - C was exposed to dust during the course of his employment which was not due to negligence of the D. However they were supposed to provide washing facilities so they could shower before they went home but they did not. Experts could not say if dermatitis came from ailing to provide wash facilities. Could not succeed on but for so test became did the failure to provide washing facilities trigger it.
What are the facts of the case where thrbfairchild exception was created?
C exposed to asbestos by several employers, all that is required is one single fibre. Where the exception applies the C had to show the D negligence made a material contribution to the risk of injury even though it could have been caused by the negligence of another D.
What are the facts of Barker v Corus?
Asbestos case, during employment he was self employed and some employers were insolvent. Courts said apportionment should reflect the longer a person was employed, the more chance of contracting it.
What is the impact of the compensation act 2006?
Applies to meso cases only and reverses the decision in Barker. C’s contributory negligence could still lead to an apportionment.
When can the courts apportion liability?
In an indivisible injury when there is a dose response relationship between the exposure to the harm and the severity of the disease and there is some expert evidence on apportionment.
Give an ex,apple of a divisible injury?
Vibration white finger.
What are the facts of Thompson?
Noise exposure which induced hearing loss.
What elements must we look at when looking at causation?
Causation in fact and law.
What is the principle of causation in law?
C is unable to recover damages which are not too remote caused by the D breach of duty.
What is the test for remoteness?
The modern test is reasonable foreeablitity.
