Causation and Remoteness of damages Flashcards

Question

Insoluble uncertainty - courts base it on facts : case to case

Answer 1

McGhee v National Coal Board - doctors didn't know if it was the bricks or lack of washing quickly that caused issue (HL: causation on these facts) Wilsher v Essex Area Health Authority - Poor doctor work could cause blindness - but also premature and 4 other potential causes - HL cannot prove causation

Answer 2

Fairchild v Glenhaven Funeral Services (2002) - C exposed to asbestos from multiple sources - Definitely negligent from employer - CA: cannot be proved who caused - HL: only one contamination is enough, cannot prove against only one defendant but used test of 'did they materially increase risk of harm through negligent action'

Answer 3

because the traditional test of causation is to show that "on the balance of probabilities" X has caused Y harm, it was impossible to say that any single employer was the cause at all. While it was possible to say "it was one of them" it was impossible to say which. Under the normal causation test, none of them would be found, on the balance of probabilities to have caused the harm.

Answer 4

P1 - Fairchild widened causal link from position in Wilsher

Answer 5

Lord Rodger in Fairchild at [170] set out five elements which must be present if a claimant is to prove causation on the basis of a material increase in risk (the Fairchild exception). This passage warrants careful reading for those dealing with occupational cancer claims. In summary, a claimant must show that: Medical science is unable to determine how the injury was caused and who caused it. The defendant’s wrongdoing has materially increased the risk that the claimant (as opposed to a general class of persons) would suffer injury. The defendant’s conduct was capable of causing the claimant’s injury. His injury was caused by the eventuation of the kind of risk created by the defendant’s wrongdoing. It is insufficient to show that his injury might have a number of different causes, only one of which is the eventuation of the risk created by the defendant’s wrongful act or omission. Therefore, his injury was caused, if not by exactly the same agency as was involved in the defendant’s wrongdoing, at least by an agency that operated in substantially the same way.

Answer 6

Same mesothelioma cancer case as Fairchild Court ruled that although injury was indivisible risk was divisible so different parties were only liable to the extent that they increased the risk that C would get cancer.

Answer 7

That position was promptly reversed by section 3 of the Compensation Act 2006 which – in claims for mesothelioma alone – provided for joint and several liability.

Answer 8

As Lord Rodger in Sienkiewicz observed at [142] in relation to mesothelioma: “the Fairchild exception was created only because of the present state of medical knowledge. If the day ever dawns when medical science can identify which fibre or fibres led to the malignant mutation and the source from which that fibre or those fibres came, then the problem which gave rise to the exception will have ceased to exist. At that point, by leading the appropriate medical evidence, claimants will be able to prove, on the balance of probability, that a particular defendant or particular defendants were responsible. So the Fairchild exception will no longer be needed. But, unless and until that time comes, the rock of uncertainty which prompted the creation of the Fairchild exception will remain.”

Answer 9

if the damage is too far removed or indirect then there is no causation. Reasonable foreseeability of damage

Answer 10

Re Polemis and Furness - reasonable person would not expect explosion but it was the direct cause

Answer 11

The Oropesa - New act breaks the causal chain - Impossible to generalise/define this

Answer 12

Baker v Hopkins - rescuer was reasonable, foreseeable (and voluntary) - owed DoC by company who were negligent - liable for all deaths including rescuer

Answer 13

Corr v IBC Vehicles - suicide after head injury where D is liable HL - D liable for suicide

Answer 14

Lamb v Camden LBC - too remote that squatters damage house after C had to move out temporarily due to D's negligent actions

Answer 15

Mckew v Holland - D liable in accident - weaker leg also cause of later accident - BUT no bannister on stairs breaks chain of causation

Answer 16

Spencer v Wincanton Holdings - D liable for leg injury - C injured later but did not ask for help or use prosthetic leg - D liable (only for 1/3 of damages) - contributory negligence as quite remote

Answer 17

Clay v TUI - jumps out of window due to broken lock

Answer 18

Wagon mound- foreseeable test rather than direct causation immoral for slight negligence to equal liability for everything

Answer 19

Direct causation (Polemis) replaced by reasonable foreseeability (Wagon Mound)

Answer 20

Smith v Littlewoods

Answer 21

Hughes v Lord Advocate - Workers left hole in road (fence and light around it) - Hughes lowered lamp into it and explosion - not foreseeable there would be an explosion - Wrong to deny liability by citing wagon mound

Answer 22

South Australia Asset Management v York Montague EXAMPLE GIVEN to explain SoD - doctor negligent on knee examination - climber then goes on expedition and suffers unrelated injury - 'cannot transfer all the foreseeable risk on the doctor for negligence linked to knee only'

Answer 23

Manchester Building Society v Grant Thornton - look at what risk the duty was supposed to guard against - is the loss suffered fruition of that risk

Causation and Remoteness of damages Flashcards

(51 cards)