Causation

Question 1

Explain factual causation.

Answer 1

When considering factual causation it is necessary to determine whether D’s breach actually caused the loss. If the answer is no the claimant will have no course of action.

The test for this is the but for test, but for D’s actions would the harm have occurred. If the answer is yes, then the claimant will have failed to establish causation. If the answer is no causation will be satisfied.

Question 2

Is a 25% contribution to the damage from D’s actions enough to establish causation?

Answer 2

No.

Question 2

What is the significance of the wisher case?

Answer 2

here were multiple causes of there baby’s blindness, including D’s actions. However the claimant could not prove it was attributable to the actions of D as opposed to any of the other causes and therefore, on the balance of probabilities, the claimant have failed to prove D’s actions caused the death.

Question 3

Following Wilshire and Bennington Casatings Ltd, what is the position with regards to causation?

Answer 3

• It is not necessary for the claimant to show D’s actions were the sole cause of the damage, or even the main cause. It is only necessary to show that D’s action were a material cause of the damage suffered.
• However, there is now an exception where if the claimant can prove D’s actions caused a material increase in the risk of injury suffered, causation may be found. Whilst this has been upheld, it is now seen as more of an exception to the material contribution rule.

Question 4

Expalin the rule where a claimant suffers injury/ damage more than once.

Answer 4

• Provided the two injuries/ damage are linked, the second D who causes subsequent injury is only liable to the extent they are the claimants injury/ damage worse.

Question 5

Explain divisible injury.

Answer 5

If court has evidence enabling it to divide injury suffered by the claimant, it will apportion the damages accordingly.

Question 6

Explain the decision in Hotly.

Answer 6

• C worked for two companies and over a period of time contracted asbestosis from working with asbestos over a long period of time.
• He sued one of the companies he worked for, which then argued they should only be liable for some of this damage.
• Given the disease was contracted over a long period of time, working for two companies, the court agreed and apportioned damages payable according to the length of time he worked for each company.

Question 7

Give an example of situation where damaged cannot be apportioned.

Answer 7

Broken leg caused by the negligence of two separate drivers. Here the claimant could claim against either defendant for damages in full. Rules of Indivisible inujury would then likely apply.

Question 7

True or False: Where two or more people are responsible for the same damage, the court has the power to apportion the damage between them.

Answer 7

True. Damages are apportioned according to each person’s share of responsibility
for the damage.

Question 8

Explain the difference between divisible damage in Hotly, and the concept of indivisible damage under sections 1 and 2 of the Civil Liability (Contribution) Act 1978,.

Answer 8

• In Holtby, court divided damage so that each defendant is liable to the claimant only for the particular share of the damage which it caused (divisible damage).
• By contrast, where two (or more) defendants are liable to claimant in respect of the same damage, each defendant is liable to the claimant in full. The claimant will be able to recover full damages from one defendant even if the other is insolvent or untraceable.

Question 9

Explain the position of the claimant in relation to indivisible damage.

Answer 9

• Where two or more people are liable to C re same damage, C can sue any or all of them and can recover the full amount of loss from any or all of them.
• This does NOT mean C can claim loss twice.

Question 10

Explain the position of the defendants in relation to divisible damage.

Answer 10

Under the vivil liability act, defendant 1 liable for damage to the claimant can recover a contribution (of the damages) from any other person (ie the second defendant) who is liable for the same damage.

Question 11

True or False: instinctive actions of a third party break the chain of causation.

Answer 11

False. They DO NOT break the chain of causation.

Examples of such actions would include those similar to Scott v Shepherd. In this case D threw lift firework into a crowd and two members of the crowd instinctively picked it up and threw it away. Eventually landed in front of `claimant and it was held D was still liable (in other words instinctively thawing the firework away did not break the chain of causation).

Question 12

Explain whether the negligent interventions of a third party will break the chain of causation.

Answer 12

• Unlikely to be broken if the negligent act of the third was foreseeable consequence of D’s negligent action in the first place.

Question 13

Give example of a case where it was found the negligent act of a third party did not break the chain of causation (be cause it was not a foreseeable consequence of D’s negligent action).

Answer 13

• Knightley v Johns - D negligently drove and blocked exit to busy tunnel.
• Police officer was ordered to drive wrong way through the tunnel to close the tunnel. He was injured.
• COA held D was not liable as this could not have been a foreseeable consequence of D’s initial negligent action.

Question 14

Give example of a case where it was found negligent act of the third party broke the chain of causation, absolving D of liability in negligence (because it was a foreseeable consequence of D’s initial negligent action).

Answer 14

• Rouse v Squires, D drove lorry and blocked two lanes of motorway. Car collided with the lorry.
• Another lorry driven by Rouse stopped to assist, but was killed when another lorry (driven by B) crashed into him.
• D remained liable as action of B did not break the chain of causation as it was foreseeable drivers would come too fast and there was a risk of causing a collision. B was also liable as contributed to death of Rouse by crashing.
• Liability between D and B was apportioned under Civil Liability Act.

Question 15

Explain whether the reckless or intentional act of a third party will break the chain of causation.

Answer 15

• More likely where third party act is reckless/intentional this will be found to break the chain of causation.
• It will hover effectively come down to whether the action of the third party was foreseeable.

Question 15

Give an example of a case where it was held reckless/ intentional act of a third party did break chain of causation.

Answer 15

• Case of Lamb.
• D caused damage to C’s home through negligence.
• When home was being repaired it was left unoccupied and squatters broke in and caused further damage.
• D was found not liable for the further damage caused by the squatters.

Question 16

Give an example where an intentional act of a third party did not break the chain of causation.

Answer 16

• Stansbie v Troman;
• D was decorating house and left it unattended for 2 hours to fetch wallpaper (despite instructions of the owner to lock up).
• Whilst gone thief stole Dimond bracket.
• D was negligent; he did not take reasonable care to prevent thieves entering.

Question 17

When is medical negligence deemed to have broken the chain of causation?

Answer 17

Chain will be broken if the actions of the medical staff were grossly negligent, amounting to a completely inappropriate reaction of C’s injury.

Question 18

Explain how/ when the claimant’s own acts will break the chain of causation.

Answer 18

• General position has evolved that C’s own actions will amount to a break in the chain of causation only where it is deemed entirely unreasonable in all the circumstances.
• If not, it’s deemed a natural event not breaking the chain of causation.

Question 19

Give an example of a case where C’s own act broke the chain of causation.

Answer 19

• McKew v Holland.
• C had weak leg caused by D’s negligence, which therefore had a tendency to give way.
• C attempted to walk down a very steep staircase with no handrail and leg grave way, causing C to suffer injuries.
• Held D was not liable as the act from C was wholly unreasonable ion the circumstances. Chain of causation was therefore broken by C’s choice to take the risk of walking down unsuitable stairs.

Question 20

Give an example of a case where C’s own act did not break the chain of causation.

Answer 20

• Case of Wieland.
• C injured neck due to D’s negligence.
• C fitted with neck collar making it tricky to wear her glasses - she fell down the stairs.
• No break in chain of causation as C had acted reasonably.

Question 21

Explain the principle of remoteness of damage.

Answer 21

General rule is that where the damage is deemed too far removed so D should not be responsible for it, the damage is said to be too remote.

• As such court must ask whether the damage is such that a reasonable person would have foreseen it.
• If reasonable person would not have foreseen it, the damage will be deemed too remote and will not be recoverable.
• If reasonable person would have foreseen it, damage is recoverable.

Question 22

Give the two rules arising from the wagon mound case regarding remoteness of damages.

Answer 22

1) similar in type rule; 2) egg-shell rule.

Question 23

Explain the similar in type rule (relating to remoteness of damage).

Answer 23

Rule is that the way in which C is injured is irrelevant as long as the type of damage suffered was foreseeable. (eg it does not matter how someone suffers burns, as long as the injury of someone getting burned is deemed reasonably foreseeable).

Question 24

Explain the egg shell rule (relating to remoteness of damage).

Answer 24

This means you take the victim as you find them. If C suffers further injury from bad reaction to medical treatment being administered because of D's negligence, D cannot use lack of knowledge of such a condition C is suffering from as a defence to liability.