Negligence: Causation of Damage and Defences

Question 1

what questions does the concept or causation of damage cover?

Answer 1

is it a matter of fact that the Ds negligence was a cause of the Cs harm? even if it was, was there any intervening act? even if it was, was the damage too remote?

Question 2

what is the ‘but for’ test?

Answer 2

as a matter of fact, was the Ds negligence a cause of the Cs damage? Barnett v Chelsea and Kensington Hospital Management Committee- if yes harm would still have occurred in any event, C has failed to establish causation and their claim will fail

Question 3

what is the chain of causation?

Answer 3

principle that the act or omission of the D should be linked to the loss/damage suffered by the C

Question 4

what is the ‘all or nothing’ approach to proving factual causation?

Answer 4

are there other causes of the damage?- C must prove that the harm was from the D not any of these other possible causes

Question 5

what is the material contribution approach to proving factual causation?

Answer 5

in a multiple cause case, the C doesn’t have to show that the Ds breach of duty was the only cause or even the main cause- just that it materially contributed to the damage

Question 6

how does the material increase in risk relate to proving factual causation?

Answer 6

McGhee v National Coal Board- material contribution approach extended to cover creation of material increase in risk of injury rather than material contribution to the injury itself (increasing risk of damages)

Question 7

what are divisible injuries/proportionate damages?

Answer 7

court has evidence which enable to it to divide up the injury suffered by the C, it will apportion the damages accordingly- issue for both Ds and Cs as it determines how much money they must pay to the C as damages, but C will have to sue all of their injuries to recover damages in full

Question 8

what are indivisible injuries/contribution between tortfeasors?

Answer 8

most injuries are indivisible and cannot be divided up, C is entitled to recover damages in full from either of the Ds- much better for C as only need to bring proceedings against one D to recover their damages in full

Question 8

how does the court deal with damages between Ds in indivisible injury cases?

Answer 8

under ss 1(1) and 2(1) of Civil Liability Act 1978, where 2 or more people are liable, court has power to apportion the damage between them according to their share of responsibility

Question 9

how can we establish factual causation if a claimant is injured more than once?

Answer 9

D who causes the subsequent injury only liable to the extent that they make the Cs damage worse

Question 10

what is the instinctive intervention of a third party?

Answer 10

do not break chain of causation- Scott V Shepherd- lighted firework thrown into crowd, X moves it away from him and it explodes and injured C- intervening acts dont change fact that D is liable for damages to C as it was an instinctive reaction

Question 11

what is a negligent intervention of a third party?

Answer 11

chain of causation likely to be broken by negligent action of 3rd party which the D could not reasonably foresee as a likely consequence of their negligence

Question 12

what is intervening conduct of a third party when its reckless or intentional?

Answer 12

chain of causation unlikely to be broken by an action which the defendant ought to have foreseen as a likely consequence of their negligence

Question 13

what happens to the chain of causation when the C is an intervening act?

Answer 13

novus actus interveniens- C’s act has to be entirely unreasonable in all the circumstances to break the causation- otherwise thought of as a natural event which would not break the chain

Question 13

what is the basic rule of remoteness of damage?

Answer 13

when a court decides that damage is so far removed that a D should not be responsible for it, the damage is said to be remote - The Wagon Mound- Privy Council held that D not liable as damage not reasonably foreseeable so test for remoteness is one of reasonable foreseeability

Question 14

what is The Wagon Mound rule for remoteness of damage?

Answer 14

if a reasonable person would not have foreseen the damage, it cannot be recovered- two provisos- the similar in type rule and the egg shell skull rule

Question 15

what is the ‘similar in type’ rule (remoteness of damage)

Answer 15

if a C suffers injury of a type which was foreseeable, it does not matter that the precise way in which the C was injured was not foreseeable- Hughes v Lord Advocate

Question 15

what is the ‘egg shell skull’ rule? (remoteness of damage)

Answer 15

you take the victim as you find them- if a C suffers a particular disability or has a particular condition- they can recover in full from the D for their losses even though the D could not have foreseen the full extent of the Cs losses

Question 16

what is the voluntary assumption of risk (Volenti non fit injuria) as a defence to negligence?

Answer 16

D must establish that the C had full knowledge of nature and extent of the risk, the C willingly consented to accept the risk of being injured due to the Ds negligence

Question 17

what are the key elements needed for the volenti non fit injuria defence to succeed?

Answer 17

C must have full knowledge of the risk AND freely consented to run the risk of injury

Question 18

how does the volenti defence relate to employees?

Answer 18

rarely succeeds against employers as employee acts under duty and therefore has no real freedom of choice when carrying out a task requested by employer- Smith v Baker (employees cannot really consent FREELY)

Question 19

how does the volenti defence relate to rescuers?

Answer 19

C don’t necessarily act voluntary as they act under moral compulsion when they are either rescuing and person/property endangered by Ds negligence, acting under a legal social or moral duty and their conduct in all circumstances was reasonable/natural/probably consequence of the Ds negligence- Haynes v Harwood

Question 20

what is the ex turpi causa non oritur actio defence?

Answer 20

no action arises from a disgraceful cause- C involved in an illegal enterprise when they were injured may provide D with a defence e.g. Ashton v Turner burglars escaping but Ds negligent driving caused crash where they were injured- Defence of illegailty applied

Question 21

what is the excluding liability defence?

Answer 21

tries to exclude or limit their liability- relevant to pure economic loss with Occupier’s Liability Acts

Question 22

what is contributory negligence?

Answer 22

D who is unable to escape liability can raise partial defence on appropriate facts: carelessness on the Cs part and that carelessness contributed to the Cs damage

Question 22

what is the effect of a finding of contributory negligence?

Answer 22

Law Reform Act 1945- used to be that it was a full defence but was the injustice by the rule was removed

Question 23

to what extent should damages be reduced where there is a finding of contributory negligence?

Answer 23

to the extent the court thinks is just and equitable, having regard t the Cs share in the responsibility for the damage

Question 24

what is considered when court makes this assessment?

Answer 24

culpability, causation (to what extent the Cs carelessness has caused or contributed to the loss suffered)

Question 25

what are examples of contributory negligence?

Answer 25

not wearing seat belts, crash helmets or accepting lifts from drivers who they know are drunk

Question 25

can children by contributorily negligent?

Answer 25

no age below which child cannot be CN- Gough v Thorne

Question 26

what is the test to decide whether a child has been contributorily negligent?

Answer 26

whether an ordinary child of the Cs age would have taken more care for their safety than the C did

Question 27

what is the relevant principle from Baker v TE Hopkins about rescuers and contributory negligence?

Answer 27

rescuer judged against the standard of reasonable rescuer- CN only found if the rescuer shows a ‘wholly unreasonable disregard fir his or her own safety’

Question 28

how does the CN defence relate to employers/employees

Answer 28

court takes into account relevant circumstances e.g. factors that may make the employee take less care for their own safety e.g. noisy, dull