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43 Cards in this Set

  • Front
  • Back

Did the breach cause the damage?

1. Factual Causation - link between breach and loss


2. Legal Causation - has the link been broken

Factual Causation

Link between breach and loss.


case



Yorkshire Dale Steamship Co v Ministry of War Transport


Lord Wright

"Causation is to be understood as by the man in the street, and not as either the scientist or meta-physician would understand it."

What test is it?

The 'but for' test!!!!


This is ALWAYS the starting point, even if just to show it doesn't work.


case...

'But for' the defendants breach claimant wouldn't have suffered loss.

Cork v Kirby Maclean Ltd


No rails on walkway, secret epilepsy. Fit. Death. But for lack of rails probably wouldn't have died.

Dr. breached duty by failing to properly examine. Patient died of arsenic poisoning. But would've have died anyway = no 'factual causation'...

Barnett v Kensington and Chelsea Hospital

Case struck out for taking too long. Tried to sue lawyers but couldn't prove original claim had realistic prospect of succeeding.

Mount v Baker Austin

examples of causation

untrained window cleaner fell - 'but for' lack of training wouldn't have happened.

Multiple Causes

Independent Causes


Cumulative Causes

Independent

Wilsher v Essex AHA


premature baby, went blind.


Five possible factors. Only one (lack of oxygen) was tortious but all were possible causes. so 'but for' test:


but for the breach baby wouldn't have gone blind (on balance of probabilities, more likely than not) - claimant couldn't prove it = fail.


exception - Fairchild v Glenhaven Funeral Services


also:

Hotson v East Berkshire HA

Child, tree, broke leg, hospital, paralysed.


Medical evidence - 75% chance original accident would've been paralysed even with perfect treatment. Therefore court gave 25% of claim for the lost chance.


This was rejected by House of Lords = should only be liable for damaged caused, not the loss of chance. More likely he was paralysed by fall = claim fails.

Where chance that wasn't the defendant's act =

50% or more, then claim fails.

Cumulative Causes

A + B leads to loss.

Claimed against employers for a respiratory disease. Clear it resulted from exposure to dust at work but only part of the exposure was due to a defendant's breach. Some of it is just a natural consequence of the work (therefore non-tortious). Therefore cumulative....

Bonnington Castings v Wardlaw:


but for test - yes. But impossible to tell how much was caused by breach.


House of Lords - introduced 'material contribution test'.

Material Contribution Test

Does the defendant's breach (proved) materially contribute to development of the disease. Yes, then liable.

Dermatitis from brick dust. Worked with dust anyway = non-tortious.


Tort =

McGhee v National Coal Board:


not providing washing facilities, so was on his skin longer than necessary.


Medical experts couldn't say if dermatitis was from work OR extended exposure after work.


House of Lords - Breach 'materially increased the risk'

Which test to use?



Always begin with 'but for' (even if just to prove it doesn't work).


Where a number of causes acting independently - Wilsher.


Prove it was the breach that caused the damage by applying but for test.


if several causes together - cumulative: Bonnington/McGhee,


material contribution/increase in risk (the later likely when experts can't be sure)

How do you tell if it's independent or cumulative? READ

Fairchild v Glenhaven Funeral Services Ltd & Others

Fairchild v Glenhaven Funeral Services Ltd & Others

Many employers, all involving asbestos.


25 years later - mesothelioma.


At the time unknown how asbestos caused it, just that it did. Therefore it's impossible to say if it was cumulative or a single exposure. Which defendant?


Court chose 1 event, therefore the 'but for' test failed because claimant couldn't pin it down to one employer. Failed on factual causation.


BUT

House of Lords said 'but for' test could be departed from, the additional exposure materially increased the RISK of contracting disease. Therefore all are liable. BUT

Supreme Court has since said it has to be damage, not just the risk of it that forms the GIST of negligent action.


Durham v BAI


(does that mean can't claim unless have illness OR that you can't claim for the risk as above even if have it?)

Multiple Causes


Apportionment

'not a tool to determine factual causation but rather a calculation to apply once factual causation has been established.'


case:

Fitzgerald v Lane & Patel

Claimant crossing at correct light.


Hit by 1 car, then hit by another.


both liable but the claimant as well (partly).


Couldn't say which collision caused the injuries or how much? Therefore all one third to blame.


In Court of Appeal changed to 50% claimant, 25% each the others.

Multiple Causes with Identifiable Losses

One event - injury.


Later even causes the SAME damage.


case:

Performance Cars v Abraham

Rolls damaged. Required respray. Damaged again. Respray required.


Because it already needed respray the 2nd event made no difference.


c.f.

Baker v Willoughby

Leg injured - claim


Leg shot - amputated


(bad couple of weeks!)


Court held original defendant was liable, though the second event caused more damaged. 2nd defendant was still liable for additional losses.


c.f.



Jobling v Associated Dairies

1. Work accident - back


2. illness - no longer able to work.


Defendant's liability ceased after 2nd. 'didn't have to compensate for the 'vicissitudes of life'


(also Murrell v Healy)


- distinguished from baker as illness was naturally occurring whereas getting shot = ... luck?

What has a destabilising effect on the issue of multiple causes.

Policy

Legal Causation

Defendant is not liable for EVERYTHING that follows from his breach. Novus actus

1. Acts of God


2. Acts of third parties/strangers


3. Acts of claimant




Acts of God

will not break the chain if it could have been foreseen by defendant and should have been allowed for...


case:

Humber Oil Terminal Trustee v Sivand

Repairing harbour.


Sea bed collapsed.


Extra expense was recoverable because this was foreseeable.


but:

if later illness can be linked to the original tort...

Meah v McCreamer:


Road accident - later personality disorder (led him to commit rape)


No break in chain of causation.

Acts of 3rd party/strangers

Breaks the chain if unforeseeable


case:

Knightley v Johns

defendant 1 - road accident.


(defendant 2) - cop - bad traffic control.


Plaintiff - cop - killed.


defendant 1 cleared as the first cop's actions broke the chain.


c.f.

Acting in the heat of the moment

Scott v Shepherd


Fireworks thrown down stalls... (getting rid off my stall, onto the next = the guy who threw it first was liable)

Medical treatment

Courts don't like allowing medical treatment as a break UNLESS it is 'PALPABLY wrong':


Robinson v The Post Office:


injury - tetanus shot - allergic. Not palpably wrong and 'but for' defendant's negligence would've been unnecessary. Therefore no break.

Acts of the Claimant

Unforeseeable acts by them = a break (generally also will be unreasonable acts)


case:

Spencer v Wincanton Holdings

LJ Sedley - Where liability halts is governed by fairness.


also - McKew v Holland and Hannen and Cubitts (unreasonable claimant)


c.f.


Wieland v Cyril Lord Carpets (reasonable claimant)

Negligent sterilisation

Emeh v Kensington and Chelsea HA:


Sterilised.


Got pregnant.


Refused abortion.


Sued for the upbringing of kid (wrongful life).


Court said her refusal wasn't unreasonable.


BUT:

Following McFarlane v Tayside HA

Wrongful life cases have been restricted and would be unlikely to succeed today. BUT the refusal to get an abortion was still confirmed as not being an unreasonable novus actus.

Reeves v MPC

Just because he killed himself doesn't = novus actus.


It was their duty of care to stop him doing it. (Why? Foreseeable, they had control, wasn't his choice...?)


also


Corr v IBC Vehicles - Head injury, PTSD, suicide. Defendant argued it wasn't their duty to prevent these. Court said their original breach caused it.

Extra stuff -


1000 people, nuke testing

MOD v AB & Others

mesothelioma only - unwilling to extend the Fairchild exception ...


1 defendant, claimant exposed to asbestos walking around as well

Sienkiewicz v Greif


Exposed walking around factory but alsso a slight risk walking around the port.... Materially increased the risk.


Used Compensation Act 2006 s3

CA 2006 s3

That full damages must be paid. i.e. if one defendant = bankrupt, the others have to cover it. Following BARKER v Corus UK Ltd (interpreting Fairchild):


employers and self employed (contributed negligence) - damages apportioned depending on time spent. and the bankrupt thing.


BARKER also applied to non-mesothelioma stuff.