Week 15: Causation and Remoteness

Question 1

What must the pursuer prove regarding causation in a negligence claim?

Answer 1

The pursuer must prove that the breach of duty caused the harm—the burden of proof lies with them.

Question 2

Why is causation often a difficult hurdle in negligence cases?

Answer 2

Causation is difficult because it involves proving a clear link between the breach and the harm, which isn’t always obvious from the facts.

Question 3

What are the two aspects of causation that courts consider?

Answer 3

Causation involves fact (what actually caused the harm) and law (whether the breach was a legally effective cause of the harm).

Question 4

What is the factual question involved in proving causation?

Answer 4

The factual question asks: Did the breach of duty cause the harm?—this is based on evidence and actual events.

Question 5

What is the legal question involved in proving causation?

Answer 5

The legal question asks: Was the breach an effective or predominant cause of the harm?—even if there are multiple causes.

Question 6

Can causation in negligence be assumed if harm occurred?

Answer 6

No—causation must be proved or reasonably inferred from the facts; it cannot simply be assumed.

Question 7

What is factual causation in negligence law?

Answer 7

Factual causation asks: “But for the defender’s breach, would the harm have occurred?”—this is known as causa sine qua non and must be proved with evidence.

Question 8

What is legal causation in negligence law?

Answer 8

Legal causation asks whether the breach was the dominant or effective cause of the harm—this is causa causans, the cause among causes.

Question 9

Are both factual and legal causation required to establish liability?

Answer 9

Yes, both factual and legal causation must be proven for a negligence claim to succeed.

Question 10

What is a novus actus interveniens in causation?

Answer 10

A novus actus interveniens is a new, unforeseeable event that breaks the chain of causation, making the original party no longer liable.

Question 11

When does a new intervening act break the chain of causation?

Answer 11

A new act breaks the chain if it is ultroneous—unreasonable, unwarranted, or extraneous, as stated in The Oropesa (1943) by Lord Wright.

Question 12

What must the pursuer prove in relation to causation?

Answer 12

The pursuer must prove both factual and legal causation, and show there was no novus actus interveniens breaking the chain of liability.

Question 13

What must be shown to establish factual causation in negligence?

Answer 13

To prove factual causation, the pursuer must show that the loss or harm was caused by the defender’s wrongful (negligent) conduct.

Question 14

What is the ‘but for’ test used in factual causation?

Answer 14

The ‘but for’ test asks: But for the defender’s conduct, would the loss have occurred?—if the answer is no, causation is established.

Question 15

What is the material contribution test in factual causation?

Answer 15

The material contribution test asks whether the defender’s breach made a material contribution to the pursuer’s loss or materially increased the risk of harm.

Question 16

When is the material contribution test often used?

Answer 16

The material contribution test is used where multiple factors or parties may have caused the harm—like in industrial disease cases.

Question 17

What was the causation issue in McWilliams v Archibald Arrol & Co?

Answer 17

In McWilliams v Archibald Arrol, although there was a breach of duty, causation failed because the court found that the deceased would not have worn the safety harness anyway.

Question 18

Why did the widow’s claim in McWilliams v Archibald Arrol fail despite proving a breach?

Answer 18

The claim failed because factual causation wasn’t proven—but for the employer’s breach, the accident still would have occurred.

Question 19

What was the legal principle in Barnett v Chelsea and Kensington Hospital?

Answer 19

In Barnett, the doctor’s failure to treat did not cause the death, as Mr. Barnett would have died anyway—causation was not established.

Question 20

Why were the defendants not liable in Barnett v Chelsea and Kensington Hospital?

Answer 20

The hospital was not liable because, but for the doctor’s omission, Mr. Barnett would still have died—the negligence did not cause the harm.

Question 21

Why did the claim in Kays Tutor v Ayrshire & Arran HB fail?

Answer 21

In Kays Tutor v Ayrshire & Arran HB, the claim failed because the plaintiff could not prove that the overdose of penicillin caused the deafness, as deafness is a known result of meningitis itself.

Question 22

What was the causation issue in Kays Tutor v Ayrshire & Arran HB?

Answer 22

The issue was lack of proof that the negligent overdose caused the harm—causation could not be established since deafness was not linked to penicillin overdose.

Question 23

Why did the widow’s claim fail in McTear v Imperial Tobacco Ltd?

Answer 23

In McTear v Imperial Tobacco, the widow could not prove causation, as there was no specific evidence linking the cigarettes to Mr. McTear’s lung cancer, and epidemiological data alone was insufficient.

Question 24

What legal principle was confirmed in McTear v Imperial Tobacco?

Answer 24

The court confirmed that epidemiology cannot be used to establish causation in individual cases—causation must be shown on the facts of that specific case.

Question 25

In legal causation, what must be shown in addition to factual causation?

Answer 25

In legal causation, it must be shown that the defender’s breach was the causa causans (effective cause) of the harm, determined mainly by foreseeability flowing from the original wrongful act.

Question 26

Was there a novus actus interveniens in Sayers v Harlow UDC?

Answer 26

In Sayers v Harlow UDC, there was no novus actus interveniens—instead, the plaintiff was found contributorily negligent for trying to escape the locked lavatory in an unsafe way, reducing her damages by 25%.

Question 27

What was the court’s finding on causation in Sayers v Harlow UDC?

Answer 27

The court in Sayers found the council liable for negligence, but the plaintiff's own risky conduct contributed to her injury, making it contributory negligence, not a break in the chain of causation.

Question 28

Did the chain of causation remain intact in McKew v Holland Hannen & Cubitts?

Answer 28

In McKew v Holland Hannen & Cubitts, the chain of causation was broken—the pursuer acted unreasonably by attempting to descend steep steps unaided despite his injury, which was a novus actus interveniens.

Question 29

Why was the employer not liable for the second injury in McKew v Holland?

Answer 29

In McKew, the employer was not liable for the ankle injury because the pursuer’s own unreasonable action was a new intervening act that broke the chain of causation.

Question 30

What is meant by remoteness in negligence law?

Answer 30

Remoteness in negligence means that even if there is a breach of duty, the harm may be too remote to claim damages—only damage that naturally and directly arises from the wrong is recoverable.

Question 31

What is the test for remoteness from Allan v Barclay?

Answer 31

According to Lord Kinloch in Allan v Barclay, damages must naturally and directly arise from the wrong done, and be those that the wrongdoer could reasonably have foreseen.

Question 32

What did the case of Simmons v British Steel say about remoteness and foreseeability?

Answer 32

In Simmons v British Steel, the court held that liability is limited to foreseeable consequences, but the employer must take the claimant as he finds him, including pre-existing vulnerabilities like depression or a skin condition.

Question 33

How does Simmons v British Steel apply the thin skull rule to remoteness?

Answer 33

In Simmons v British Steel, the thin skull rule meant that even if the claimant’s psychological harm was severe due to his vulnerabilities, the employer was still liable because he was a primary victim and the harm was a foreseeable type.

Question 34

What was the key legal issue in Kyle v P&J Stormonth-Darling (1994) regarding deprivation of a legal right?

Answer 34

In Kyle v P&J Stormonth-Darling, the court held that a solicitor’s failure to follow court rules resulting in an abandoned appeal did amount to a deprivation of a legal right, even though the defenders argued it was not a compensable legal wrong.

Question 35

What was the court’s view on speculative loss in Campbell v F&F Moffat?

Answer 35

In Campbell v F&F Moffat, the court found that a claim for a redundancy payment the pursuer might have received if not terminated was too speculative—showing that not all hypothetical or "utterly speculative" losses are compensable.

Question 36

Can you claim for a reduced chance of recovery in medical negligence, as seen in Gregg v Scott?

Answer 36

In Gregg v Scott, the court held that a reduced chance of survival (from 42% to 25%) due to delayed cancer diagnosis was not enough to establish causation—loss of a chance is not, on its own, a compensable injury in medical negligence.