Causation

Question 1

What two points must be considered to determine causation?

Answer 1

factual and legal causation

Question 2

What test is used for establishing factual consideration?

Answer 2

But for test

• ‘but for’ the defendant’s breach of duty the claimant would not have suffered the loss at that time and in that way (ie were it not for the defendant’s breach, the claimant would not have suffered that loss
• Cork v Kirby Maclean Ltd

Question 3

What is the threshold that must be reached to prove the but for test?

Answer 3

Balance of probabilities

- more than 50% chance that the defendants breach caused their loss

Question 4

When will the but for test fail?

Answer 4

• less than 50% chance that the defendants breach caused the loss
• multiple causes acting independently
• cumulative causes

Question 5

What are the factors needed for the material contribution test?

Answer 5

• But for test not satisfied
• two factors have to contribute together (cumulative)
• more than negligible contribution to the loss

Question 6

Does the material contribution test apply to sequential cumulative causes or simultaneous cumulative causes?

Answer 6

Both!

Dr Sido John v Central Manchester and Manchester Children’s University Hospitals NHS Foundation Trust

Question 7

When can the material increase in risk test be used?

Answer 7

• Test is only relevant in industrial disease cases caused by one single agent
• Mainly mesothelioma and lung cancer caused by asbestos
• Cannot use for clinical or general
  (Fairchild v Glenhaven Funeral Services Ltd)
  (McGhee v National Coal Board)

Question 8

What is the loss of chance argument for factual causation?

Answer 8

• courts have allowed the test to be argued in cases involving pure economic loss
• claimant losing the chance of something due to the defendants negligence
• not used anymore

Question 9

What is apportionment?

Answer 9

• used once factual causation has been established
• where there are multiple possible defendants
• apportioning liability between the defendants in a way that produces a practical result, providing compensation to the claimant while recognising the respective fault of the defendants. (Fitzgerald v Lane & Patel)

Question 10

What is the Chester principle in terms of establishing factual causation in clinical negligence where the breach is a failure to advise on risks?

Answer 10

• claimant must prove on the balance of probabilities, that if they had been warned of the risk, they would not have had the operation or deferred it to a later date.

Question 11

What happens when there are multiple sufficient causes?

Answer 11

It is up to the judge to decide whether it would be fair to hold the defendant responsible for a loss of both damages or not.

Question 12

What is novus actus interveniens?

Answer 12

An intervening act

Question 13

What are the 3 intervening acts to consider that might break the chain of causation?

Answer 13

• acts of god
• acts of third parties
• acts of the claimant

Question 14

Explain the novus actus intervenien of an act of god.

Answer 14

An act of God breaks the chain of causation if it is some exceptional natural event. Natural events can include, for example, being struck by lightning, drowning in a flood, or the onset of disease.
- Natural events will not break the chain of causation if they could have been foreseen and the defendant should have taken them into account as events that were likely to happen.

Question 15

Explain the novus actus intervenien of an act of third parties.

Answer 15

Where the subsequent event is the act of a third party, the courts have viewed it as breaking the chain of causation if it was highly unforeseeable
- If the third party has acted instinctively (as in ‘the heat of the moment’), then there will be no break in the chain of causation

Question 16

Can medical treatments break the chain of causation?

Answer 16

• As a matter of policy, the courts are also reluctant to hold that medical treatment breaks the chain of causation
• The medical treatment will not break the chain unless it is so gross and egregious as to be unforeseeable (Robinson v The Post Office)

Question 17

Explain the novus actus intervenien of an act of the claimant.

Answer 17

• Where claimant’s own actions break the chain of causation.
• The legal test for an act of the claimant breaking the chain of causation is that the act must be highly unreasonable (more than mere unreasonable conduct). (McKew v Holland & Hanmen & Cubitts)
• It is rare for the claimant’s unreasonable behaviour to break the chain of causation as this would normally be dealt with under the defence of contributory negligence.

Question 18

What is the effect of suicide of the victim to legal causation?

Answer 18

• in Corr v IBC Vehicles, it was found that the victim suicide was not an intervening act
• in Reeves v MPC, the police were under a duty to ensure that the prisoner did not rake his own life and therefore failed.