Week 15: Causation and Remoteness Flashcards
What must the pursuer prove regarding causation in a negligence claim?
The pursuer must prove that the breach of duty caused the harm—the burden of proof lies with them.
Why is causation often a difficult hurdle in negligence cases?
Causation is difficult because it involves proving a clear link between the breach and the harm, which isn’t always obvious from the facts.
What are the two aspects of causation that courts consider?
Causation involves fact (what actually caused the harm) and law (whether the breach was a legally effective cause of the harm).
What is the factual question involved in proving causation?
The factual question asks: Did the breach of duty cause the harm?—this is based on evidence and actual events.
What is the legal question involved in proving causation?
The legal question asks: Was the breach an effective or predominant cause of the harm?—even if there are multiple causes.
Can causation in negligence be assumed if harm occurred?
No—causation must be proved or reasonably inferred from the facts; it cannot simply be assumed.
What is factual causation in negligence law?
Factual causation asks: “But for the defender’s breach, would the harm have occurred?”—this is known as causa sine qua non and must be proved with evidence.
What is legal causation in negligence law?
Legal causation asks whether the breach was the dominant or effective cause of the harm—this is causa causans, the cause among causes.
Are both factual and legal causation required to establish liability?
Yes, both factual and legal causation must be proven for a negligence claim to succeed.
What is a novus actus interveniens in causation?
A novus actus interveniens is a new, unforeseeable event that breaks the chain of causation, making the original party no longer liable.
When does a new intervening act break the chain of causation?
A new act breaks the chain if it is ultroneous—unreasonable, unwarranted, or extraneous, as stated in The Oropesa (1943) by Lord Wright.
What must the pursuer prove in relation to causation?
The pursuer must prove both factual and legal causation, and show there was no novus actus interveniens breaking the chain of liability.
What must be shown to establish factual causation in negligence?
To prove factual causation, the pursuer must show that the loss or harm was caused by the defender’s wrongful (negligent) conduct.
What is the ‘but for’ test used in factual causation?
The ‘but for’ test asks: But for the defender’s conduct, would the loss have occurred?—if the answer is no, causation is established.
What is the material contribution test in factual causation?
The material contribution test asks whether the defender’s breach made a material contribution to the pursuer’s loss or materially increased the risk of harm.
When is the material contribution test often used?
The material contribution test is used where multiple factors or parties may have caused the harm—like in industrial disease cases.
What was the causation issue in McWilliams v Archibald Arrol & Co?
In McWilliams v Archibald Arrol, although there was a breach of duty, causation failed because the court found that the deceased would not have worn the safety harness anyway.
Why did the widow’s claim in McWilliams v Archibald Arrol fail despite proving a breach?
The claim failed because factual causation wasn’t proven—but for the employer’s breach, the accident still would have occurred.
What was the legal principle in Barnett v Chelsea and Kensington Hospital?
In Barnett, the doctor’s failure to treat did not cause the death, as Mr. Barnett would have died anyway—causation was not established.
Why were the defendants not liable in Barnett v Chelsea and Kensington Hospital?
The hospital was not liable because, but for the doctor’s omission, Mr. Barnett would still have died—the negligence did not cause the harm.
Why did the claim in Kays Tutor v Ayrshire & Arran HB fail?
In Kays Tutor v Ayrshire & Arran HB, the claim failed because the plaintiff could not prove that the overdose of penicillin caused the deafness, as deafness is a known result of meningitis itself.
What was the causation issue in Kays Tutor v Ayrshire & Arran HB?
The issue was lack of proof that the negligent overdose caused the harm—causation could not be established since deafness was not linked to penicillin overdose.
Why did the widow’s claim fail in McTear v Imperial Tobacco Ltd?
In McTear v Imperial Tobacco, the widow could not prove causation, as there was no specific evidence linking the cigarettes to Mr. McTear’s lung cancer, and epidemiological data alone was insufficient.
What legal principle was confirmed in McTear v Imperial Tobacco?
The court confirmed that epidemiology cannot be used to establish causation in individual cases—causation must be shown on the facts of that specific case.
In legal causation, what must be shown in addition to factual causation?
In legal causation, it must be shown that the defender’s breach was the causa causans (effective cause) of the harm, determined mainly by foreseeability flowing from the original wrongful act.
Was there a novus actus interveniens in Sayers v Harlow UDC?
In Sayers v Harlow UDC, there was no novus actus interveniens—instead, the plaintiff was found contributorily negligent for trying to escape the locked lavatory in an unsafe way, reducing her damages by 25%.
What was the court’s finding on causation in Sayers v Harlow UDC?
The court in Sayers found the council liable for negligence, but the plaintiff’s own risky conduct contributed to her injury, making it contributory negligence, not a break in the chain of causation.
Did the chain of causation remain intact in McKew v Holland Hannen & Cubitts?
In McKew v Holland Hannen & Cubitts, the chain of causation was broken—the pursuer acted unreasonably by attempting to descend steep steps unaided despite his injury, which was a novus actus interveniens.
Why was the employer not liable for the second injury in McKew v Holland?
In McKew, the employer was not liable for the ankle injury because the pursuer’s own unreasonable action was a new intervening act that broke the chain of causation.
What is meant by remoteness in negligence law?
Remoteness in negligence means that even if there is a breach of duty, the harm may be too remote to claim damages—only damage that naturally and directly arises from the wrong is recoverable.
What is the test for remoteness from Allan v Barclay?
According to Lord Kinloch in Allan v Barclay, damages must naturally and directly arise from the wrong done, and be those that the wrongdoer could reasonably have foreseen.
What did the case of Simmons v British Steel say about remoteness and foreseeability?
In Simmons v British Steel, the court held that liability is limited to foreseeable consequences, but the employer must take the claimant as he finds him, including pre-existing vulnerabilities like depression or a skin condition.
How does Simmons v British Steel apply the thin skull rule to remoteness?
In Simmons v British Steel, the thin skull rule meant that even if the claimant’s psychological harm was severe due to his vulnerabilities, the employer was still liable because he was a primary victim and the harm was a foreseeable type.
What was the key legal issue in Kyle v P&J Stormonth-Darling (1994) regarding deprivation of a legal right?
In Kyle v P&J Stormonth-Darling, the court held that a solicitor’s failure to follow court rules resulting in an abandoned appeal did amount to a deprivation of a legal right, even though the defenders argued it was not a compensable legal wrong.
What was the court’s view on speculative loss in Campbell v F&F Moffat?
In Campbell v F&F Moffat, the court found that a claim for a redundancy payment the pursuer might have received if not terminated was too speculative—showing that not all hypothetical or “utterly speculative” losses are compensable.
Can you claim for a reduced chance of recovery in medical negligence, as seen in Gregg v Scott?
In Gregg v Scott, the court held that a reduced chance of survival (from 42% to 25%) due to delayed cancer diagnosis was not enough to establish causation—loss of a chance is not, on its own, a compensable injury in medical negligence.
