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31 Cards in this Set
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What two types of causation must courts establish? |
Factual Causation: Whether C would have suffered loss if not for D's breach on a balance of probabilities ('but for' test) Legal Causation: Whether D's breach justifies liability, considering policy/other reasons for denying liability or breaks in chain of causation |
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In what ways can a chain of causation be broken? |
1. Remoteness - C's loss regarded too remote/far removed from D's breach. Test of reasonable foreseeability. Influenced by type of loss/thinskull rule 2. Novus Actus Interveniens - no recovery in case of intervening act/event Civil Liability (Contribution) Act 1978 means it is unlikely court will find one party liable if many individuals are involved |
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Barnett v Chelsea and Kensington Hospital Facts: C’s husband, after drinking tea, started vomiting. He was taken to hospital where the doctor told him to go home and have some rest. C later died of arsenic poisoning Held: C would probably have died even if the proper treatment had beengiven promptly, so the hospital's negligence was not the cause of his death. |
To establish Factual Causation, must show on a balance of probabilities that loss would not have been suffered but for breach. |
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Fairchild v Glenhaven Funeral Services Facts: 3 claimants contracted mesothelioma, a form oflung cancer contracted by exposure to asbestos. Mesothelioma can be caused by a single fibre ofasbestos. Each of the claimants had been exposed to asbestos by a number ofdifferent employers. They were unable to demonstrate which employer exposed them to the one fatal fibre. Held: Each of D's employers was held liable in full for disease |
Fairchild exception to balance of probabilities test, based on fairness & compliance: - D'actions not only negligent but increased risk of C suffering harm - C then did suffer relevant harm - Don't know which D caused harm, combination - Unclear as to other factors/extent |
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McGhee v National Coal Board Facts: C contracted dermatitis as result of being covered in brick dust each day when at work. D didn’t provide showers for workers and so C had to wait till he got home to wash the dust off himself Held: could not be established whether showering would have preventedthe disease. C won |
Irrelevant if D caused the harm negligently or innocently |
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Wilsher v Essex Area Health Authority Facts: baby born prematurely required a catheter beinserted into the umbilical artery. Catheter wrongly insertedand the readongs were incorrect, which resulting in him receiving excessiveamounts of oxygen. The baby went blind and D was held liable Held: excessive oxygen was one of 6 possible causes ofthe blindness, and C had not established on the balance of probabilities the 'but for' |
Cannot claim if on balance of probabilities cause is not established |
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Barker v Corus Plc Facts: Cs developed mesothelioma as a result of exposure toasbestos through work. Each had for aperiod of the time been self-employed. Unlike Fairchild, chance that the C had inhaled therelevant asbestos fibres when self-employed (cannot owe a duty to yourself). Held: Knew either D or C caused the harm. C successful. Liability of other two parties depends on theiractions only. |
Both extends and limits Fairchild rule: - Fairchild applies even if the plaintiff himself is one ofthe causes of the injury, but the damages are divided up based on theprobability of each party’s actions causing the harm. - Overturned by Compensation Act 2006 (s3): anyone liable under Fairchild is liable in full (also regulates damages re: Mesothelomia) |
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Baker v Willoughby Facts: defendant negligently injured the claimant's leg in a car accident. The claimant was later an innocent victim when shot in the same leg by some robbers and the leg was amputated. Held: HL held D was liable to pay full compensation for the injury he had caused, based on C's losses beyond the time when his leg was amputated. Damages assessed as if the second event had not occurred. |
Should be regarded as an exception to the general "but-for" test. Amputation did not break the chain of causation as it was a 'vicissitude of life' |
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Bonnington Castings Ltd v Wardlaw Facts: C contracted pneumoconiosis by inhaling air which contained minuteparticles of silica during the course of hisemployment, risk would have been reduced had he installed an extractor fan. Thus 2 possible causes: guilty dust and innocent dust. Held: burden of proof rests on the claimant |
The burden of proof remains on the claimant. However, theclaimant only had to demonstrate that the breach had made a materialcontribution to the disease. He did not have todemonstrate on the balance of probabilities that the breach was the solecause of the disease. |
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Fitzgerald v Lane Facts: C suffered injuries from being hit by two cars after walking a red light. Was unable to establish which impact caused the harm. First judge held they were all equally at fault (Ds had been driving too fast and not paying enough attention) Appealed to COA, again to HL Held: HL apportioned 50% to be divided between defendants. |
The court is to first assess the full damages andthen assess the degree to which the claimant contributed to their own injuries, then reduce the damages accordingly. A claimantis not to be over compensated simply because there are two defendants. CA attempt to switch the burden of proof on defendant (as they do in Canada) failed and was overruled in Wilsher v Essex |
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Gregg v Scott Facts: C found lump which was misdiagnosed and therefore not treated until after a 9 month delay during with time condition worsened. Reduced prospect of survival and therefore brought claim against loss of his chance at a disease free life Held: Loss of chance is not a recoverable head of damage in medical negligence |
Principle that Loss of Chance is not a recoverable head of damage established, affirmed in Hotson |
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Performance Cars v Abraham Facts: A hit D's car and D tried to sue for re-spray, an amount he had already received from a previous accident. Held: Claimant should not recover for the same loss twice. The first defendant was liable for the full amount |
Claimants should not recover twice for the same loss |
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The Wagon Mound Facts: The defendant's vessel, The Wagon Mound, leaked furnace oil at a Wharf. Some cotton debris became embroiled in the oil and sparks from welding works ignited the oil. Fire spread rapidly causing damage Held: Overturned old law (Re Polemis - all harm recoverable). Test of remoteness of damage was substituted for the direct consequence test. |
Following the Wagon Mound no 1 the test for remoteness of damage is that damage must be of a kind which was foreseeable. Once damage is of a kind that is foreseeable the defendant is liable for the full extent of the damage no matter whether the extent of the damage is foreseeable. |
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Hughes v Lord Advocate Facts: 2 boys wentexploring an unattended man hole left by workmen takinga break. They took a lamp down the hole. One of themdropped it and an unforeseeable explosion occurred resulting in extensiveburns. Held: Damage was not too remote, was foreseeable that the boys may suffera burn from the lamp. The fact that the burn resulted from an unforeseeableexplosion did not prevent damage being foreseeable |
Don't have to foresee all possible outcomes, just possible damage |
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Doughty v Turner Manufacturing Company Facts: asbestos lid was accidentally knocked into acauldron of molten liquid and caused an explosion, harmed C. Explosion occurred as a result of the asbestos reacting with the chemicals in theliquid in the high temperature. It was not knownthat the asbestos could react in that way. Held: Damage was too remote, explosion was not foreseeable |
Knowledge of the parties at the time of the incident may also be taken into account |
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Lamb v Camden Borough Council Facts: D negligently fractured a water pipe causing damage so the property had to be vacated. Squatters moved in causing further damage Held: D not liable for actions of squatters. Not foreseeable that squatters would move into an empty house in Camden and cause damage despite theprevalence of such behavior |
Another foreseeability case |
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Smith v Leech Brain & Co Ltd [1962] Facts: D employed workman who was slightly splashed by moltenmetal through his employers' negligence and suffered a burn on his face. Theburn aggravated a pre-existing cancerous condition and the man died. Held: "Injury to theperson" was regarded as a single kind of damage and some minor injury atleast was foreseeable. C won.Eggshell rule applied |
'Egg shell' rule applies when there is foreseeability of some kind of damage |
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Knightly v Johns Facts: Mr. J drive negligently & his car overturned in a tunnel. Police officers drove through tunnel to close it off & one was struck by a car Held: senior officer's instructions and failure to close the entrance to thetunnel were negligent and broke the chain of causation. Claimant was entitled to full damages from the seniorofficer and Mr John was not liable. |
Example of one negligent act breaking the chain of causation started by a previous negligent act. Claimants decision was not negligent |
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Rouse v Squires Facts: D’s careless driving resulted in lorry skidding& blocking two lanes of the motorway. C's husband stopped to help. Another lorry driver, also driving negligently, failedto see the blockage and killed the victim Held: CA found chain of causation was not broken, reasonably foreseeable that other drivers may arrive on the scene fast.Both defendant and 2nd driver were held jointly liable under CL(C) 1978 |
Chain of causation will not be broken if acts following the initial breach are reasonably foreseeable |
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Jones v Livox Quarries Ltd Facts: C was working in D's quarry. Hitched a ride on the back of a traxcavator against company rules. A crash led him to have his leg amputated Held: C was a fifth to blame as he acted against orders and exposed himself to danger |
Under the Law Reform (Contributory Negligence) Act 1945, partially to blame if C acts against orders and thus exposes himself to danger Lord Denning MR: “A person is guilty of contributory negligence if he oughtreasonably to have foreseen that, if he did not act as a reasonable, prudentman, he might be hurt himself” |
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Froom v Butcher Facts: C injured in car accident due to negligence of D, but was not wearing a seat belt. Disagreement as to apportionment of loss underthe Law Reform (Contributory Negligence) Act 1945 Held: Lord Denning set out rule in such cases |
Lord Denning: "… Sometimes the evidence will show that the failure made no difference.... In suchcase the damages should not be reduced at all. At other times the evidence willshow that the failure made all the difference....In such cases I wouldsuggest that the damages should be reduced by 25 per cent. But often enough theevidence will only show that the failure made a considerable difference...In such case I would suggest that the damages attributable to thefailure to wear a seat belt should be reduced by 15 per cent." |
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Wooldridge v Sumner Facts: C was injured by D's horse during a horse show as he was standing outside of the barriers were spectators were housed. Held: There was no breach of duty so the Claimant'saction failed |
On the issue of volenti non fitinjuria it was held that consent to the risk of injury wasinsufficient. There must be consent to the breach of duty in full knowledge ofthe nature and extent of the risk. |
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Morris v Murray Facts: C & D had been drinking all day. D suggested that theytake his aircraft for a flight. C agreed and drove them both to theairfield. D took off but crashedshortly after. D was killed and C seriously injured. In an action for negligence, D raised the defence of volentinon fit injuria. Held: Actions of C in accepting a ridein an aircraft from an obviously heavily intoxicated pilot was so glaringlydangerous that he could be taken to have voluntarily accepted the risk ofinjury. |
Accepting a ride in an aircraft from obviously intoxicated pilot was so glaringly dangerous that he could be taken to have voluntarily accepted the risk of injury andwaived the right to compensation. |
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Dann v Hamilton Facts: C was injured when she was a willingpassenger in the car driven by the Mr Hamilton. He had been drinking and thecar was involved in a serious crash which killed him. In a claim for damagesthe Defendant raised the defence of volenti non fit injuria re: accepting the lift Held: defence was unsuccessful |
Asquith J: "There may be cases in which the drunkenness ofthe driver at the material time is so extreme and so glaring that to accept alift from him is like engaging in an intrinsically and obviously dangerousoccupation, intermeddling with an unexploded bomb or walking on the edge of anunfenced cliff. It is not necessary to decide whether in such a case themaxim 'volenti non fit injuria' would apply, for in thepresent case I find as a fact that the driver's degree of intoxication fellshort of this degree" |
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Condon v Basi Facts: C suffered a broken leg during a tackle from the D during afootball match. Held: The standard of care varies according to the level of expertise theplayer has. The Defendant was in breach of duty as the tackle was reckless evenwith regards the standard expected of a local league player |
Sir John Donaldson MR: "The standard is objective, butobjective in a different set of circumstances. Thus there will of course be ahigher degree of care required of a player in a First Division football matchthan of a player in a Fourth Division football match." Whilst participants accept the risk of injury inherent to sporting activities they do not accept risk of injury occurring outside of the rules of the game |
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Pitts v Hunt Facts: D and C were both obviously drunk when D took C on a ride on his motorbike. Witnesses saw C cheering his friend on. D was underage at the time and driving erratically Held: Ex turpi causa and public policy didoperate to preclude the imposition of a duty of care. |
Example of ex turpi causa and policy measures as a complete defense |
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Gray v Thames Trains Ltd Facts: C injured in Ladbroke Grove train crash caused by D's negligence. Developed PTSD which caused him to stab someone todeath. Pleaded guilty to manslaughter on grounds on diminishedresponsibility. C sued the defendant for the loss of earningssuffered both before and during his detention. D sought to defendthe claim on the grounds of illegality Held: claimant was unsuccessful |
Lord Brown said: ‘The law cannot at one and the same time incarcerate someone for his criminality and compensate him civilly for the financial consequences.’ |
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Vellinov Chief Constable of Greater Manchester Facts: C was known offender, seriously injured when jumping out of 2nd story window to escape arrest. Police had known he would escape and did nothing - brought a claim against police arguing once arrested they owed him a duty of careHeld: claim failed ex turpi causa. Crime of escape is a serious one; it is acommon law offence for which the penalty is at large. Can apply maxim
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SirMurray Stuart-Smith identified 4 principles relating to exturpi causa: 1. The operation of the principle arises where theC's claim is founded upon his own criminal/immoral act - facts linked to criminal activity 2. The principle is of public policy; not for the benefit of theDefendant. 3. In the case of criminal conduct this has to be sufficiently serious 4.The Law Reform (Contributory Negligence) Act 1945 is not applicable where theClaimant's action amounts to a common law crime which does not give rise toliability in tort. |
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Imperial Chemical Industries Ltd v Shatwell Facts: C were brothers employed by D, injured as a result of an explosion caused by the brothers' negligence. Each brother claimed against D based on their employer's vicarious liability Held: brothers had deliberately acted in defiance of theemployer's express instructions in full knowledge of the risks. The employer had beeninstrumental ensuring all workerswere aware of them. |
Going against strict instructions will raise maxim of volenti non fit injuria |
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Sienkiewicz v Greif Facts: Court considered appeals where D challenged the factual basis of findings that they had contributed to the causes of the claimant’s Mesothelioma. Argued Fairchild exception should not have applied so as to make them liable, since there was only one defendant in each case. Held: Both appeals failed. The decision in Fairchaild left open what should happen in cases such as these. The Fairchild exception applies in mesothelioma cases where only a single defendant was identified. |
Lord Phillips said: ‘I see no scope for the application of the ‘doubles the risk’ test in cases where two agents have operated cumulatively and simultaneously in causing the onset of a disease. In such a case the rule in Bonnington applies. Where the disease is indivisible, such as lung cancer, a defendant who has tortiously contributed to the cause of the disease will be liable in full. Where the disease is divisible, such as asbestosis, the tortfeasor will be liable in respect of the share of the disease for which he is responsible.’ |
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Jobling v Associated Dairies Facts: C slipped on the floor due to his D's negligence. He injured his back which caused him to reduce earning capacity by 50%. Then developed an back condition which was unrelated to the injury and left him unable to work. Trial judge applied Baker and held that C was entitled to recover Held: HL distinguished Baker & stated where the victim is overtaken before trial by a wholly unconnected and disabling illness, the decision had no application. |
Partially overruled Baker principle |
