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Flashcards in Negligence - Causation & Remoteness Deck (40)
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1

What is the concept of causation?

For D to be liable in the tort of negligence, it must be shown that his breach of duty caused loss to C.

2

How important is causation to negligence claims?

Causation is an essential element to a negligence claim. It provides an essential link between D’s conduct and the harm suffered by C, which explains why this D should be liable to this C for this loss.

3

What are the two types of causation?

1. Factual Causation
2. Legal Causation

4

What is factual causation?

This involves asking whether the C would have suffered the loss but for the defendant’s breach of duty.

5

What is legal causation?

This involves asking whether the D’s breach of duty was the sort of but for cause as to justify liability.

6

What are the key sub-considerations within the factual causation question?

1. What happened factually in the situation as it occurred?
2. On a balance of probabilities, did the breach cause the harm alleged (‘but for’ the negligence, would the harm have been suffered)?
3. If not, have the courts created an exception to the usual rule?

7

What are the key sub-considerations within the legal causation question?

1. Even if the breach was the cause in fact of the harm suffered, what is the legal interpretation of the facts?
2. Are there any policy or other reasons to justify denying liability?
3. Was there a break in the chain of causation?

8

What is the key rule or test, underpinning the question of factual causation?

The 'but for test' - the factual causation inquiry asks a basic hypothetical factual question: would C have suffered the same loss even if D had not breached his duty?

9

Which case supports the importance and application of the 'but for test'?

Barnett v Chelsea and Kensington Hospital

10

What are the details of the Barnett Case?

C’s husband, after drinking tea, started vomiting. He was taken to hospital, where the doctor told him to go home and get some rest. C later died of arsenic poisoning.

11

What was the finding of the Barnett Case?

It was held that C’s claim failed. Although the doctor was held to have acted negligently, C’s husband would have died even if he had been treated promptly.

12

What does a claimant need to demonstrate to satisfy the 'but for' test of factual causation?

C needs to show that it is more likely than not or on the balance of probabilities that, had D not breached his duty, C would not have suffered the loss he did.

13

Which case demonstrates the need to establish that 'on the balance of probabilities, had D not breached his duty, C would not have suffered the loss he did?

Wilsher v Essex Area Health Authority

14

What are the details of the Wilsher Case?

1. A baby was born prematurely and placed in a special care unit.
2. The hospital wanted to monitor his arterial blood oxygen levels, which required that a catheter be inserted into the umbilical artery.
3. The catheter was, however, wrongly inserted into the umbilical vein.
4. This then led to inaccurate readings of his arterial blood oxygen levels, which in turn resulted in his receiving excessive quantities of oxygen. 5. The baby developed a condition called retrolental fibroplasia, which cause him to go blind.
6. At trial the D was held liable.

15

What was the finding of the Wilsher Case?

It was held that the D’s appeal was successful. The excessive oxygen was only one of six possible causes of the blindness, and C had not established on the balance of probabilities that he would not have gone blind but for the D’s breach .

16

What are the exceptions to the 'but for' rule of factual causation?

1. Material contribution to injury
2. Material increase in risk

17

Which case established the 'material contribution to injury' exception to the 'but for' rule of factual causation?

Bonnington v Wardlaw Castings

18

What were the details of the Bonnington v Wardlaw Castings Case?

A factory employee contracted pneumoconiosis, a lung condition, from the inhalation of ‘innocent’ and ‘guilty’ silica dust.

19

What was the finding of the Bonnington v Wardlaw Castings Case?

It was held that, in the situation of 2 potential causes of danger, the onus of proof was on the pursuer to prove on a balance of probabilities that the negligence or breach of duty (i.e. the source for which the defender was responsible) caused or materially contributed to his injury.
Since in this case, it might be argued that cumulatively the 'innocent' and 'guilty' dust were more likely to cause harm, it was enough to show that D’s negligence had been a material contribution to the condition.

20

Which case established the 'material increase in risk' exception to the 'but for' test of factual causation?

McGhee v National Coal Board

21

What were the details of the McGhee Case?

C contracted dermatitis as a result of being covered in brick dust each day when at work. D didn’t provide showers for workers (in breach of the duty of care they owed to the C) and so the C had to wait till he got home to wash the dust off himself. It could not be established whether being able to shower at work would have prevented the disease from arising.

22

What was the finding in the McGhee Case?

The House of Lords held that it was sufficient for a pursuer to show that the defender's breach of duty materially increased the risk of injury, even though there were other factors, for which the defender was not responsible, which had contributed to the injury and that there was no practical difference between materially increasing the risk of harm and materially contributing to that harm.

23

Is the reasoning in the McGhee case reconcilable with that of Wilsher?

Yes, it appears that the basic principles of McGhee (other than the reversal of the burden of proof) had remained intact despite Wilsher. In the context of an evidential gap of unassessibility of relative contribution of risk.

24

Which case demonstrated the application of the 'material increase in risk' exception to cases of multiple potential causes?

Fairchild v Glenhaven Funeral Services

25

What are the details of the Fairchild Case?

1. Cs contracted a disease called mesothelioma, which was caused by exposure to asbestos.
2. It was established both that Cs had been exposed to asbestos only through their work and that their employers had breached the duty of care they owed to them by allowing them to be exposed to asbestos.
3. The problem arose because each of Cs had worked for more than one employer and they could not say which employer they were working for when they were exposed to asbestos, which triggered the disease.

26

What was the finding of the Fairchild case?

It was held that where successive employers had failed to protect an employee from a disease (mesothelioma), but it could not be proved on a balance of probability which employer had caused the injury, the conduct of each employer in exposing the claimant to a material increase in risk to which he should not have been exposed should be treated as if it had made a material contribution to the disease.

27

What were the two key justifications the HoL gave for departing from the standard 'but for' test in Fairchild?

1. Fairness
2. Compliance

28

What is the scope of the Fairchild exception?

It is difficult to precisely define the extent of the reach of the Fairchild exception - on the facts of the case, C was entitled to succeed, and the causation requirement was held to be satisfied, provided D increased the risk of the C being harmed in this way and that harm then eventuated and it could not be proved that this was not as a result of the D’s breach.

29

What were the 5 seemingly significant considerations or factors taken into account by the court when deciding Fairchild?

1. Evidential Gap - The current state of relevant science left it uncertain how the injury was caused.
2. Material Risk - The defendant’s conduct created a material risk of injury to the claimant.
3. Capable of Causing injury - The defendant’s conduct was capable of causing the claimant’s injury.
4. Eventuation of kind of risk created by the Defendant's wrongdoing - The claimant’s injury was caused by the eventuation of the kind of risk created by the defendant’s wrongdoing.
5. Same agent or operated in substantially same way - The claimant proved his injury was caused, if not exactly by the same agency as was involved in the defendant’s wrongdoing, at least by an agency that operated in substantially the same way.

30

Which case demonstrated the application of the 'material increase in risk' exception to instances involving self-employment?

Barker v Corus