Chapter 4 - Causation Flashcards
How must a claimant show that the breach caused them to suffer damages worthy of compensation?
They must establish causation in fact and then causation in law.
What is causation in fact?
Evidence of a direct causal link between the negligent act and the damage suffered. The link cannot be broken by intervention of outside events or the claimant’s own acts.
What is causation in law?
The damages cannot be too remote from the negligence. Causation in law cannot exist without causation in fact.
What is the three step chain of questions asked when trying to establish causation?
Did the breach cause damage - was the chain of causation broken - was the damage too remote
What is the basic ‘but for’ test to establish causation in fact?
It asks the question would the claimant have suffered loss but for the defendant’s breach? If the answer is no, then there is factual causation. If the answer is yes, the defendant cannot be liable.
What is the case law for the but for test?
Barnett v Chelsea and Kensington Hospital Management Committee [1969]
Explain how but for is applied in practice as ‘more probable than not’ and give a case law example.
The courts will decide if it was more likely than not that the defendant’s negligence caused the harm claimed. Chester v Afshar [2004] or Gregg v Scott [2005] - this one might be best as highlights exact quantification being crucial!
What must a claimant prove if there are multiple potential causes of harm?
That the defendant’s negligence and breach of duty “materially contributed” to the risk of injury.
How is causation approached when an injury is indivisible and give the case law which illustrates this?
The “but for” test applies, as illustrated by Wilsher v Essex Area Health Authority [1986] (in which the def’s negligence was one of five possibilities and so this 20% did not satisfy the more likely than not test on the balance of probabilities)
How is causation approached when an injury is divisible and give the case law which illustrates this?
The but for test is unjust so the defendant will only be liable where they have made a “material contribution” to the risk of harm, as in Bonnington Casting Ltd v Wardlaw [1956]
How is causation approached when it is scientifically impossible to determine who is at fault and give the case law which illustrates this?
The material increase in risk test will apply. Case law is McGhee v National Coal Board. The claimant need not prove on balance of probabilities that the defendant caused the harm.
How are mesothelioma cases approached? Give a case law example.
A claimant must only prove that any one employer materially increased the risk to recover full damages from that employer (Fairchild & Others v Glenhoven Funeral Services Ltd & Others [2002])
What influences the court’s approach to mesothelioma cases and why?
Policy considerations as the injustice of imposing a liability on the employer is outweighed by the injustice of denying the victims compensation
Where there are multiple employers who may have caused the claimant to suffer mesothelioma, how do courts approach this (from Compensation Act 2006)?
The claimant must prove the defendant materially increased the risk. Defendants are held jointly and severally responsible if they materially increased the risk, so any one employer can be liable for damages no matter how small their contribution.
If a claimant suffers a second injury doing something they would not have been doing had they not suffered the first, what are the two possible outcomes and which case law illustrates them?
1 - the defendant is liable as their original negligence caused the second injury - Baker v Wiloughby [1969]
2 - the defendant is liable only for the initial injury as the second injury was a natural cause/would have happened in any event - Jobling v Associated Dairies [1982].
