Causation

Question 1

What is causation sometimes referred to as?

Answer 1

The nexus between breach and damage

Question 2

What 2 points must be considered as part of causation?

Answer 2

1) Factual causation

2) Legal causation

Question 3

When broken down, arguably there are 3 elements to causation rather than 2, what are these?

Answer 3

1) Factual causation - but for test
2) Factual causation - when but for test can’t be satisfied
3) Legal causation

Question 4

Two important cases for the ‘but for’ test

Answer 4

Barnett v Chelsea and Kensington Hospital [1969]

Wilsher v Essex AHA [1988]

Failed in both

Question 5

To what extent does the but for test need to be proved?

Answer 5

On the balance of probabilities - so more than 50%

Question 6

Why did the but for test fail in Barnett?

Answer 6

C would have died anyway, even if the doctor had examined him on time. The harm was not caused but for the doctors error

Question 7

Why did the but for test fail in Wilsher?

Answer 7

The evidence suggested that these factors did not operate together to cause the blindness: one factor was solely responsible for the loss.

Question 8

How was Wilsher reconciled?

Answer 8

Because there were 5 equal possible causes of the blindness, there was only a 20% chance it was the negligence that caused it. Failed on balance of probabilities

Question 9

Where will a court find factual causation even if the but for test cannot be satisfied?

Answer 9

1) Cumulative cases
2) Material increase in risk test
3) Apportionment

Question 10

What is meant by cumulative cases?

Answer 10

When tortious and non-tortious factors have operated together to cause the harm, and it is impossible to distinguish which was responsible

Question 11

To what extent must something be to be part of a cumulative cause?

Answer 11

More than negligable

Question 12

Which case defined the need for it to be a more than negligible contribution to result in a cumulative cause and satisfy factual causation?

Answer 12

Bonnington Castings v Wardlaw [1956]

• Dust that was a part of work
• Tortious dust
• Operated together to create damage

Question 13

Which case shows the material contribution test in a clinical negligence context?

Answer 13

Bailey v MoD [2008]

Question 14

Why does Bailey v MoD [2008] show material contribution?

Answer 14

Both causes worked together (cumulatively) to cause her weakness. The medical experts were unable to say whether the negligent treatment was on the balance of probabilities the cause of the claimant’s brain damage – they could not say whether or not (had there been no negligence), she would still have been so weak that she could not clear her lungs.

Question 15

What was the name of the judge who summarised the position on cumulative cases?

Answer 15

Lord Justice Waller

Question 16

What did Lord Justice Waller say the position is on cumulative cases?

Answer 16

In a case where medical science cannot establish the probability that ‘but for’ an act of negligence the injury would not have happened but can establish that the contribution of the negligent cause was more than negligible, the ‘but for’ test is modified, and will succeed

Question 17

Which case followed Bailey v MoD [2008]?

Answer 17

Dr Sido John [2016]

Question 18

How did Dr Sido John [2016] confirm how the material contribution test applies?

Answer 18

It is a sequential test AS WELL AS a simultaneous test (as in Bailey v MoD)

Question 19

Case for increase in risk test?

Answer 19

McGhee v National Coal Board [1973]

- Didn’t provide facilities to wash hands of brick dust, meaning it stayed on hands longer

Question 20

Why is increase in risk different from material contribution?

Answer 20

When it cannot be proved that it which incident caused the damage it is increasing the risk by every exposure to the risk BUT if it’s just a case that it could’ve been a tortious act or a non tortious act that both contributed to the damage that is material contribution

Question 21

What standard must increase in risk be?

Answer 21

More than di minimus

Question 22

What is the key case around material increase of risk and asbestos?

Answer 22

Fairchild v Glenhaven Funeral Services Ltd [2003]

Question 23

What did Lord Bingham say in Fairchild v Glenhaven Funeral Services Ltd [2003] ?

Answer 23

‘Not concern the general validity and applicability of [the ‘but for’ test for factual causation] which is not in question, but is whether in special circumstances such as those in these cases there should be any variation or relaxation of it”.

Question 24

What are the limits to the material increase in risk test?

Answer 24

The Law Lords stressed that Fairchild would only apply in exceptional cases. However, the exact scope of the McGhee/Fairchild principle remains to be seen.

Seems to be confined to asbestos related cases for now

Question 25

Is loss of chance considered as medical negligence?

Answer 25

No - Hotson v East Berkshire HA [1987]

Question 26

Why was loss of chance rejected as an argument?

Answer 26

Causation should be based on the damage caused, not loss of a chance, and the reality of the situation was that the child was most likely paralysed by the original fall

Question 27

Where is loss of chance allowed? ( in a rare example)

Answer 27

Pure economic loss

Allied Maples Group v Simmons & Simmons [1995]

Spring v Guardian Assurance Plc [1995].

Question 28

What is apportionment?

Answer 28

A calculation to decide percentage of damages between parties after factual causation has been established

Question 29

Which case considered how liability should be apportioned?

Answer 29

Fitzgerald v Lane & Patel [1987]

Question 30

Factual causation in clinical negligence where but for case doesn’t work? Key case?

Answer 30

Chester v Afshar [2004]

Question 31

Why is Chester v Afshar [2004] important?

Answer 31

It could be satisfied that ‘but for’ the surgeon’s negligent failure to warn the claimant of the small risk, the actual injury would not have occurred when it did and the chance of it occurring on a subsequent occasion (if the claimant had chosen to have the operation at a later date) was very small.

Question 32

Straightforward example of multiple sufficient causes cause the same/worsen damage?

Answer 32

Performance Cars v Abraham [1962]

• A collusion had meant a car needed to be resprayed
• There was a second collision before the car was resprayed, but it was already going to be resprayed so there was effectively no damage

Question 33

Which 2 cases are useful to compare in multiple sufficient causes cases?

Answer 33

Baker v Willoughby [1970] / Jobling v Associated Diaries [1982]

Question 34

Baker v Willoughby [1970]

Answer 34

The House of Lords held that the first defendant should continue to be liable for the original injuries to the leg, beyond the time of the second defendant’s intervention (even though he no longer had pain and stiffness). In such situations it would be for the intervening tortfeasor (here the robber who could not be found) to compensate for any additional losses caused.

Question 35

Jobling v Associated Dairies [1982]

Answer 35

It was held that the defendant’s liability ceased at the point that the further back injury developed. He did not have to compensate the claimant for the ‘vicissitudes of life’.

Question 36

What was the key difference between Baker and Jobling according to Lords Keith and Russell

Answer 36

Lords Keith and Russell did indicate that the key difference between these two cases was that, in Baker the second event was also a tort, whereas in Jobling the second event was a naturally occurring one

Question 37

What is legal causation?

Answer 37

The defendant is not liable for absolutely everything that follows from his breach. A line has to be drawn and certain subsequent events that occur after the breach may break the chain of causation.

Question 38

What is the principal for an act that breaks the chain of causation?

Answer 38

Novus actus interveniens

Question 39

What are the types of intervening acts?

Answer 39

1) Act of god
2) Acts of third parties
3) Acts of the claimant

Question 40

Case for act of god breaking chain of causation?

Answer 40

Carslogie Steamship Co Ltd v Royal Norwegian Government [1952]
- Storm damage to a ship added significantly more damage which D was not liable for

Question 41

Cases for acts of third party breaking the chain of causation?

Answer 41

Knightley v Johns [1982]

Robinson v The Post Office [1974]

Question 42

When will a third party NOT break a chain of causation?

Answer 42

When they have acted instinctively in the heat of the moment

Scott v Shepherd 1773

Question 43

Cases to compare for acts of C breaking the chain of causation

Answer 43

McKew v Holland & Hanmen & Cubitts (Scotland) Ltd [1969]

Wieland v Cyril Lord Carpets [1969]