CAUSATION

Question 1

WHAT MUST THE CLAIMANT ESTABLISH?

Answer 1

That there is causation in fact and causation in law

Question 2

WHAT DOES CAUSATION IN FACT REQUIRE?

Answer 2

Evidence of a direct causal link between the defendant’s negligent act and the damage suffered by the claimant

It also requires the claimant to establish a chain of causation and then prove that any intervening acts did not break the chain

Question 3

WHAT DOES CAUSATION IN LAW REQUIRE?

Answer 3

That the damage is not too remote from the negligence

Question 4

WHAT IS FACTUAL CAUSATION?

Answer 4

The issue of whether the defendant’s breach factually caused the damage to the claimant

Question 5

WHAT IS THE BASIC TEST FOR FACTUAL CAUSATION?

Answer 5

The ‘but for’ test – would the claimant have suffered the loss but for the defendant’s breach?

Question 5

WHAT IS THE BASIC TEST FOR FACTUAL CAUSATION?

Answer 5

The ‘but for’ test – would the claimant have suffered the loss but for the defendant’s breach?

Question 6

HOW DOES BARNETT V CHELSEA AND KENSINGTON HOSPITAL MANAGEMENT COMMITTEE [1969] ILLUSTRATE THE ‘BUT FOR’ TEST?

Answer 6

There is no cure for arsenic poisoning and so the doctor’s negligence did not cause the death of Mr Barnett as he would have died anyway

Question 7

WHAT DOES THE ‘BUT FOR’ TEST LOOK LIKE IN PRACTICE?

Answer 7

‘More probable than not’

Question 8

WHY WAS THE DEFENDANT IN PAGE V SMITH (NO. 2) [1996] HELD LIABLE FOR DAMAGES?

Answer 8

The High Court Judge was ‘satisfied on the balance of probabilities that the defendant’s negligence materially contributed to the recrudescence of the Chronic Fatigue Syndrome

The words ‘on the balance of probabilities’ shows that it was more than probable than not that the defendant’s negligence had caused the injury was sufficient to establish causation in fact

Question 9

WHAT IS A KEY ISSUE IN RESPECT OF MULTIPLE POTENTIAL CAUSES OF HARM?

Answer 9

Whether it is possible to divide the injury into portions, each clearly caused by different events/ tortfeasors

Question 10

WHAT HAPPENS UNDER NORMAL CIRCUMSTANCES WHERE THE INJURY IS INDIVISIBLE?

Answer 10

The ‘but for’ test strictly applies

Question 11

WHAT HAPPENED IN WILSHER V ESSEX AREA HEALTH AUTHORITY [1986]?

Answer 11

The negligently administered oxygen was one of five possible causes of the baby’s blindness and therefore a 20% chance that it caused the harm.

It was held that the claimant bears the burden of proof of proving that it was ‘more than probable than not’ that the defendant’s acts caused the harm and so the health authority was not liable here

Question 12

WHAT IS THE SIMPLE ARITHMETIC CALCULATION RELEVANT TO CASES WHERE THE INJURY IS INDIVISIBLE?

Answer 12

If there is more than a 50% chance that the defendant’s actions caused the harm, they will be liable for it

If there is less than a 50% chance that the defendant’s actions caused the harm, they will not be liable for it

Question 13

WHERE THERE ARE MULTIPLE CAUSES OF HARM, WHAT WOULD THE ‘BUT FOR’ TEST PRODUCE?

Answer 13

Unjust results if the defendant’s breach has only contributed to (rather than being the sole cause of) the loss suffered by the claimant

Question 14

WHAT IS THE TRADITIONAL JUDICIAL APPROACH WHEN THERE ARE MULTIPLE CAUSES OF HARM?

Answer 14

To adapt the test for causation in fact so that the defendant would be liable to a claimant if the defendant’s act made a ‘material contribution’ to the risk that the claimant will suffer harm

Question 15

WHAT IS MESOTHELIOMA?

Answer 15

A lung condition that renders patients unable to breathe and it is invariably fatal. It is known to be caused to exposure to fibres or dust from asbestos

Question 16

WHY WERE TWO SPECIAL RULES DEVELOPED BY THE COURTS TO ENSURE MESOTHELIOMA VICTIMS ARE COMPENSATED?

Answer 16

1. Due to the difficulty for a claimant to establish which of a number of possible exposures to asbestos caused the harm; and
2. Due to the extensive time delay between potential exposure to the asbestos and the ultimate contraction of the disease

Question 17

WHAT DID FAIRCHILD AND OTHERS V GLENHAVEN FUNERAL SERVICES LTD AND OTHERS [2002] HOLD IN RESPECT OF MESOTHELIOMA CASES?

Answer 17

It was necessary for claimants to prove that any one employer’s negligence had materially increased the risk of contracting the disease in order to be able to recover full damages from that employer.

That employer would then be able to try to recover some of the damages from other previous employers of the claimant

Question 18

WHAT DOES S3 COMPENSATION ACT 2006 CONFIRM?

Answer 18

If a claim for damages is made for mesothelioma contracted as a result of asbestos exposure, a person will be held jointly and severally responsible if they materially increased the risk of such exposure.

This means that any one employer can be liable for the whole of the damages due,

Question 19

WHAT DID THE SUPREME COURT IN SIENKIEWICZ (ADMINISTRATRIX OF THE ESTATE OF ENID COSTELLO DECEASED) V GRIEF (UK) LIMITED; KNOWSLEY METROPOLITAN BOROUGH COUNCIL V WILLMORE [2001] HOLD?

Answer 19

That Fairchild and Others v Glenhaven Funeral Services Ltd and Others [2002] / s3 Compensation Act 2006 remains applicable to mesothelioma and therefore claimants in such cases do not have to establish causation on the balance of probabilities. It is sufficient to show that the defendant’s conduct materially increased the risk of harm.

Question 20

WHEN DO DIFFERENT CONSIDERATIONS APPLY?

Answer 20

If the claimant’s second injury occurs when they are doing something that they would not have been doing had it not been for the first injury

Question 21

WHAT DID BAKER V WILLOUGHBY [1969] CONFIRM IN RESPECT OF SUCCESSIVE CAUSES OF HARM?

Answer 21

If the second act was deliberately or negligently caused - this case will apply:

After the first accident, the claimant’s earning capacity and enjoyment of life had deteriorated, and this was not obliterated by the second injury and therefore the claimant was entitled to be compensated throughout his lifetime for those losses

Question 22

WHAT DID JOBLING V ASSOCIATED DIARIES [1982] CONFIRM IN RESPECT OF SUCCESSIVE CAUSES OF HARM?

Answer 22

If the second injury is attributable to a natural cause such as a disease - this case will apply:

The claimant was awarded damages for the three years between the first injury and the development of the disease as to give him compensation for the years after the disease would put him in a better position than if he had never suffered the injury rather than restoring him to his former position

Question 23

WHAT HAPPENS IF THERE IS A BREAK IN THE CHAIN OF CAUSATION?

Answer 23

The original tortfeasor will not be liable for the events that happen after the break

Question 24

WHAT IS A NOVUS ACTUS INTERVENIENS?

Answer 24

The event that causes a break in the chain of causation

Question 25

WHAT ARE THE THREE TYPES OF NOVUS ACTUS INTERVENIENS?

Answer 25

1. An intervening act of nature 2. An intervening third party act 3. An intervening act of the claimant

Question 26

WHAT ARE THE TWO WAYS AN ACT, THAT IS NOT AN NOVUS ACTUS INTERVENIENS, MAY STILL HAVE RAMIFICATIONS IN A NEGLIGENCE CLAIM?

Answer 26

1. A non-intervening third party act may be found to be negligent and the claimant may claim against that third party as another defendant 2. A non-intervening act by the claimant may alternatively constitute contributory negligence

Question 27

WHEN IS AN INTERVENING ACT OF NATURE OR A THIRD PARTY A NOVUS ACTUS INTERVENIENS?

Answer 27

The act must be reasonably foreseeable, at the time of the breach, from an objective standpoint

Question 28

WHAT DID KNIGHTLY V JOHNS [1982] HOLD IN RESPECT OF AN INTERVENING ACT OF NATURE OR A THIRD PARTY?

Answer 28

That a novus actus interveniens was not sufficient to remove all liability from the original tortfeasor. It was held that liability for the accident lay 75% with the driver of the fourth lorry, who had not been keeping a proper lookout and had been driving negligently, and 25% with the driver of the first lorry whose negligence was the cause of the grave danger posed to other road users

Question 28

WHAT DID KNIGHTLY V JOHNS [1982] HOLD IN RESPECT OF AN INTERVENING ACT OF NATURE OR A THIRD PARTY?

Answer 28

That a novus actus interveniens was not sufficient to remove all liability from the original tortfeasor. It was held that liability for the accident lay 75% with the driver of the fourth lorry, who had not been keeping a proper lookout and had been driving negligently, and 25% with the driver of the first lorry whose negligence was the cause of the grave danger posed to other road users

Question 29

WHAT IS THE GENERAL RULE IN CASES WHERE THE CLAIMANT NEEDED MEDICAL TREATMENT BECAUSE ON AN INJURY AS A RESULT OF A TORT, BUT THE TREATMENT WAS NEGLIGENT?

Answer 29

Such treatment may reduce the original tortfeasors liability for the injury, but not remove it completely because the original injury put the victim in a situation where they were at risk of negligent medical treatment

Question 30

WHEN IS AN INTERVENING ACT OF THE CLAIMANT A NOVUS ACTUS INTERVENIENS?

Answer 30

The act of the claimant must be entirely unreasonable in the circumstances

Question 31

WHY IS THE TEST FOR AN INTERVENING ACT OF THE CLAIMANT THE MORE DEMANDING?

Answer 31

The courts try to protect claimants from undermining their own rights, and because their blameworthiness is more commonly addresses when dealing with contributory negligence

Question 32

WHAT DID MCKEW V HOLLAND & HANNEN & CUBIITTS (SCOTLAND) LTD [1969] HOLD IN RESPECT OF AN INTERVENING ACT OF THE CLAIMANT?

Answer 32

The claimant’s act of going down a steep flight of stairs with no handrail was negligent and therefore broke the chain of causation. The defendant was therefore not liable for the further injury

Question 33

IN RESPECT OF AN INTERVENING ACT OF THE CLAIMANT, WHEN MAY CLAIMANTS RECEIVE NO OR REDUCED DAMAGES?

Answer 33

If they have already suffered some harm and negligently worsen their own situation

Question 34

IN RESPECT OF AN INTERVENING ACT OF THE CLAIMANT, WILL DELIBERATE SELF-HARM BREAK THE CHAIN OF CAUSATION?

Answer 34

Not necessarily In Corr (Aninistratrix of Corr Deceased) v IBC Vehicles Ltd [2008] it was held that the suicide of the claimant’s husband was not a novus actus interveniens and was a foreseeable consequence of the depression and post-traumatic stress disorder that had followed a serious industrial injury.

Question 35

WHAT MORAL QUESTION DOES CAUSATION IN LAW ASK?

Answer 35

Should the defendant in this case be liable for this damage?

Question 36

WHAT DOES THE FACT THAT A DUTY OF CARE EXISTS NORMALLY SHOW?

Answer 36

That this sort of damage is foreseeable in this sort of situation

Question 37

WHAT IS THE BASIC RULE IN RESPECT OF CAUSATION IN LAW?

Answer 37

That damages will only be given if the type or kind of injury is a foreseeable result of the breach of duty. If the type or kind of injury is not foreseeable, it will be too remote from the breach of duty and damages will not be rewarded

Question 38

WHAT IS THE LEADING CASE IN RESPECT OF CAUSATION IN LAW?

Answer 38

Overseas Tankship (UK) Ltd v Morts Dock & Engineering Co (The ‘Wagon Mound’ [1961] Which established that the test for remoteness is whether a reasonable person would have foreseen the type or kind of damage that occurred when they acted negligently

Question 39

WHAT MUST CLAIMANTS PROVE IN RESPECT OF CAUSATION IN LAW?

Answer 39

That the type of damage suffered was reasonably foreseeable

Question 40

WHAT IS THE 'THIN SKULL' RULE?

Answer 40

The defendant must take his victim as he finds him. Consequently if, because of a personal idiosyncrasy, an injured person suffers more than would be expected, the defendant will be liable, provided that the type of injury was foreseeable

Question 41

WHAT DID LAGDEN V O'CONNOR [2004] HOLD IN RESPECT OF THE 'THIN SKULL' RULE?

Answer 41

That the ‘thin skull’ rule extends to a claimant’s impecuniosity. It was held that because the claimant was innocent and his lack of financial means had meant he could not obtain the use of a replacement care except by paying higher charges, the costs were fully recoverable.

Question 42

WHAT ARE THE TWO NOT ENTIRELY RECONCILABLE PRINCIPLES DEVELOPED BY THE COURTS IN RESPECT OF THE 'THIN SKULL' RULE?

Answer 42

1. The defendant will only be liable for the damage which can be reasonably foreseen 2. The defendant must take responsibility for all injuries sustained – provided that they are of a foreseeable kind – even though their seriousness is completely unexpected owing to the claimant’s idiosyncrasy