Causation Flashcards
(7 cards)
There must be compensable damage (pre-requisite)
Reilly v Merseyside HA: trivial amounts of harm not compensable
Johnston v NEI International Combustion Ltd: pleural plaques litigation- no symptoms, no damage no compensable harm
classic test
‘but for’ test
Barnett v Chelsea and Kensington Hospital Management Committee: fix the breach and ask whether C’s damage would have happened anyway
Mallett v McMonagle: on a balance of probabilities, anything that is more probable than not is treated as certain; 51% = 100%
The CJD Litigation: statistical analysis used to determine probability
Hotson v East Berkshire: fractional damages not available
Causal link with pure omissions
Cunningham v Rochdale MBC: ‘but for’ test applies the same
Material contribution to the risk
McGhee v National Coal board: test to meet causation
- (1) there should be only one agent that could’ve caused the harm, to which C was exposed both by breach and innocently
- (2) D failed to take precautions against the risk of the agent causing the harm
- (3) breach preceded C sufffering the harm the agent causes (make sure the injury is not coincidental
- (4) C cannot prove on the balance of probability which one caused the injury
- (5) highest C can prove is that D materially increased the risk of harm to him
Fairchild v Glenhaven Funeral Services Ltd: where multiple employers are the possible cause, causation still succeeds applying the McGhee test (asbestos in this case)
Edwards v 2 Sisters Food Group Ltd: theoretically no reason why the ‘agent’ should be restricted to asbestos but judge reused to extend the principle (COVID-19 in this case)
Barker v Corus UK Ltd: (asbestos again) liability shall be proportionate to the risk created by each D’s negligence- proportionate liability (apart from Compensation Act exception)
Failure to warn
Montgomery v Lanarkshire Health Board: hybrid test taken to determine whether C would have had the operation had they been warned- think about the reasonable patient but take into account their characteristics
Chester v Afshar: ‘modification’ to the rule- what would I have done differently? causation still found
Intervening acts in the causal chain
Must be so unlikely as to be almost unforeseeable
Knightley v Johns: D2’s failure to shut the gate was so unlikely it was almost unforeseeable
McKew v Holland and Hannen Ltd: D’s act was so silly it was unforeseeable
Webb v Barclays Bank plc: negligent medical treatment will hardly ever be an intervening act unless it’s gross negligence of the most egregious type- medical negligence is perfectly foreseeable
‘loss of chance’
Gregg v Scott: no English law recognition of a ‘loss of chance’ of a better outcome
