Negligence: Causation And Remoteness Of Damage

Front 1

Causation

Back 1

The causal link between the defendant's act or omission and the loss of damage suffered. This is also called the 'chain of causation'.

Front 2

Factual causation

Back 2

The breach of duty must be the factual cause of the damage. The test used by the courts to determine factual causation is known as the 'but for' test.

Front 3

'But for' test

Back 3

the injury would not have occurred except for ("but for") the defendant's conduct.

Front 4

First question to establish factual causation

Back 4

'but for' the defendant's breach of duty, would the loss or damage have occurred?

Front 5

Cork v Kirby LacLean

Back 5

An epileptic workman painting feel off scaffolding because there were no guard rails or toe-boards. See Lord Denning comment.

Hint 5

Front 6

Lord Denning comment on Cork v Kirby

Back 6

...if the damage would not have happened but for a particular fault, then that fault is the cause of the damage; if it would have happened just the same, fault or no fault, the fault is not the cause of the damage

Front 7

Barnett v Chelsea Hospital Management Committee

'But for' test

Back 7

A patient was turned away from a casualty department by a doctor who refused to examine him. He later died of arsenic poisoning. It was shown that the man would not have recovered even if the doctor had treated him.

Hint 7

Front 8

Brock v Frenchay Healthcare Trust

'But for' test

Back 8

A 16-year- old boy, fell on bike and suffered brain damage. He was brought to the doctors but failed to discover a fractured skull - gave him Mannitol, used to relieve pressure on the brain.

Hint 8

The CoA applying the principles in Bolitho v City and Hackney held that there was nothing in the evidence to suggest that the drug, if used earlier, would have had any significant impact on the actual injuries.

Front 9

Bolitho v City & Hackney Health Authority

'But for' test

Back 9

Doctor had a beeper system that didn't go off and the child died. If had attended, would have made no difference.

Hint 9

Front 10

Problems in proving factual causation

Back 10

• multiple cause of damage;
• a 'lost chance' of recovery/avoiding injury;
• multiple consecutive cause of damage

Front 11

Multiple cause of damage

Back 11

Where there is more than one possible cause of harm to the claimant, the claimant does not have to show that the defendant's breach of duty was the only cause of damage or even the main cause of damage.

Front 12

Bonnington Castings v Wardlaw

'Multiple causes' of damage

Back 12

Sued employer for a breathing disease that developed from dust at work. Two different causes, only one of which was tortious. Had to prove that it "materially contributed".

Hint 12

Held: Since the dust which should be extracted was at least a partial cause of the damage, the D was liable in negligence. The C therefore only needs to show the a D's breach of duty materially contributed to the damage.

Front 13

Wisher v Essex Area Health Authority

'Multiple causes' of damage

Back 13

C was born prematurely and needed an oxygen. A junior dr. inserted a catheter wrongly into a vein rather than an artery, The baby became blind. There were 5 causes of the baby's blindness.

Hint 13

Causation was not established cause it was impossible to say which one of those 5 causes and the balance of probabilities was not satisfied.

Front 14

Substantial cause

Back 14

Where there is more than one cause, the D's breach must be substantial cause of the damage. Combination case of Bonnington Castings and Wilsher

Front 15

McGhee v National Coal Board

'Multiple causes' of damage; material increase of risk

Back 15

The McGhee test. Dust from work caused dermatitis and he sued his employer for not having a wash station. Had to prove the dust from the tort "materially increased".

Hint 15

Front 16

Fairchild v Glenhaven Funeral Services Ltd

Multiple causes' of damage; material increase of risk

Back 16

Developed a disease caused by asbestos. Any of four previous places of work could have caused him to inhale one fiber. The McGhee test was used. If passed, the one defendant had to pay all the damages and then go after the other companies themselves.

Hint 16

Front 17

'Lost chance' cases

Back 17

C must establish that 'but for' the D's actions they would not have suffered loss.

Front 18

Hotson v East Berkshire HA

lost chance; balance of probabilities

Back 18

Little boy fell from a tree and developed a hip deformity. It was 75% he would have developed this anyway even if diagnosed correctly. The CoA awarded 25% to C that were considered for his lost chance of recovery. This did not satisfy that injury was caused by negligence.

Hint 18

Front 19

Balance of probabilities

Back 19

Should be 51%

Front 20

Gregg v Scott

Back 20

The claimant found a lump under his arm. He consulted his doctor who negligently diagnosed it as innocuous when in fact it was cancerous.This lead to a 9-month delay in the C receiving treatment. C's condition deteriorated and the cancer spread. This reduced his prospect of disease free survival from 42% to 25%. The delay also caused the C to undergo immediate high dose chemotherapy. The claimant brought an action based on his loss of a chance of a disease free survival. Held 3:2 Loss of a chance is not a recoverable head of damage in medical negligence claims. Hotson v East Berkshire affirmed.

Front 21

Multiple consecutive causes of damage

Back 21

Where there are consecutive causes of damage the application of the 'but for' test is applied to the original defendant.

Front 22

Performance Cars v Abraham

Multiple consecutive causes

Back 22

Rolls Royce was damaged by the first D and needed respraying. Two weeks later the second D did the same thing. Ruled that because it needed a respray anyway, the second D's collision effectively caused no damage.

Front 23

Novus actus interviens

Back 23

Latin 'a new act intervenes'. An intervening act may break the chain of causation between the D's breach of duty and the loss or damage suffered by C.

Front 24

Novus actus interveniens

Back 24

If the novus actus interveniens is sufficient to break the chain, then the D may not be liable despite being in breach of duty of case.

Front 25

The intervening act may be:

Back 25

• a third-party act
  
• an act of the claimant; or
• an act of nature

Front 26

Third party act (part 1)

Back 26

• The original D will be liable where the intervening act does not cause the loss.
• The original D will be responsible for 'injury and damage which are the natural and probable results of the [initial] wrongful act. (Knightley v Johns)

Front 27

Third party act (part 2)

Back 27

The original D will be liable where the intervening act is that should have been foreseen (Lamb v Camden London Borough of Council)

Front 28

Baker v Willoughby

Novus actus interveniens; third-party acts

Back 28

C's leg was injured due to driving negligence of D. Then the same leg was shot by a robber which resulted for his leg to be amputated. The court held that the robber's act was not a novus actus interveniens and the first D remained liable.

Front 29

Jobling v Associated Diaries

novus actus interveniens.

Back 29

C was injured at work due to D's negligence. He lost 50% of his earnings. Three years later he developed a spinal disease which was not related to the accident. Therefore the spinal disease was held to be novus actus interveniens.

Hint 29

Front 30

Act of the claimant

Back 30

In this case, the novus act interviniens will mean that the C is responsible for his own damage.

Front 31

McKew v Holland & Hannen & Cubitts

novus actus interveniens, act of the claimant

Back 31

C suffered leg injury due to D's negligence. His left leg seriously weakened but descended to steps w/o handrail, because his other leg was weak, he jumped suffering him further injuries. The defendant accepted liability for the injury sustained during his employment but disputed liability for the second injuries resulting from the claimant's action in jumping down the stairs.

Hint 31

The court held that the C's act in attempting to descend a steep staircase w/o handrail and w/o assistance when his leg had been weak was unreasonable. It was his novus actus interveniens which broke the chain of causation.

Front 32

Corr v IBC Vehicles

novus actus interveniens, act of the claimant

Back 32

C suffered serious accident at work and made him depressed. The D admitted caused by its breach of duty. He committed suicide.

Hint 32

The Court held that the suicide was not a novus actus interveniens and not broke the chain of causation. The suicide was a response of a man suffering from severe depression as D's breach of duty.

Front 33

Remoteness of damage

Back 33

Remoteness test is a legal test (rather than a factual one)

Front 34

Two tests for remoteness

Back 34

• the direct consequence test;
• the reasonable foreseeability test.

Front 35

Re Polemis

Direct consequence test

Back 35

Some Stevedores carelessly dropped a plank of wood into the hold of a ship. The plank struck something as it was falling which caused a spark. The spark was ignited by petrol vapours resulting in the destruction of the ship. The arbitrator held that the causing of the spark could not have been anticipated and therefore no liability arose. The claimant appealed.

Hint 35

Held:There was no requirement that the damage was foreseeable. The defendant was liable for all the direct consequences of their action. The D is liable for damage which is a direct result of negligence, even if more serious that they could have foreseen.

NB This was overruled in Wagon Mound No 1

Front 36

Wagon Mound No 1

Back 36

The defendant's vessel, The Wagon Mound, leaked furnace oil at a Wharf in Sydney Harbour. Some cotton debris became embroiled in the oil and sparks from some welding works ignited the oil. The fire spread rapidly causing destruction of some boats and the wharf.

Hint 36

Re Polemis was no longer good law. The new test of remoteness was the foresight of the reasonable person: was the kind of damage suffered by the C reasonably foreseeable at the time of breach of duty?

Front 37

Remoteness in psychiatric injury

Back 37

The degree of foreseeability required depends on whether or not the C is a primary or secondary victim.

Front 38

'Egg-shell skull' rule

Back 38

This means a defendant must take their victim as they find them. Ie if the victim is particularly vulnerable or has a pre-existing condition resulting in them suffering greater injury than would be expected in an ordinary person, the defendant remains responsible for the full extent of the injury.

Front 39

Smith v Leech Brain & Co Ltd

remoteness, egg-shell skull' rule

Back 39

The C was splashed by molten metal due to D's negligence and suffered burned lips. This burn triggered cancer, from which C died. The C's lips was pre-malignant at the time of the incident.

Hint 39

Court held that despite the fact that death from cancer was not a foreseeable consequence of the burn, the employers remained liable in negligence for the full extent of the damage.

Front 40

The impecunious claimant

'lack of means'

Back 40

The 'egg-shell skull' rule held not to apply where the losses result from the C's lack of means.

Front 41

Liesbosch Dredger v SS Edison

The impecunious claimant

Back 41

The C's dredger (ship) sank due to D's negligence. The C could not afford to replace the lost dredger and hired another dredger at oxorbitant rate.

Hint 41

The Court held that the C could not recover the high rental charges since these were a result of its own lack of means and not 'immediate physical consequences' of the negligent act.

Front 42

Lagden v O'Connor

remoteness, the impecunious claimant

Back 42

The D struck the C's car. The impecunious claimant hired a car that charged more because the C could not afford to pay in advance.

Hint 42

The D was liable for the cost incurred. The HoL stated that Liesbosch Dredger v SS Edison was not an authoritative and must be overtaken by developments of law.

Front 43

Jolley v Sutton

Back 43

Two 14 year old boys found an abandoned boat on land owned by the council and decided to do it up. The boat was in a thoroughly rotten condition and represented a danger. The council had stuck a notice on the boat warning not to touch the boat and that if the owner did not claim the boat within 7 days it would be taken away. The council never took it away. The boys had been working on the boat for 6-7 weeks when one of them suffered severe spinal injuries, resulting in paraplegia, when the boat fell on top of him. The boys had jacked the boat up to work on the underside and the jack went through the rotten wood. The claimant brought an action under the Occupiers Liability Act 1984.

Hint 43

House of Lords held:The claimant's appeal was allowed. The risk was that children would "meddle with the boat at the risk of some physical injury" The actual injury fell within that description. Lord Steyn:"The scope of the two modifiers - the precise manner in which the injury came about and its extent - is not definitively answered by either The Wagon Mound (No. 1) or Hughes v. Lord Advocate. It requires determination in the context of an intense focus on the circumstances of each case."