Causation 2

Causation 2

1. Exception 4 - Loss of chance

   • arises when the D's breach deprived C of a better outcome
     • it cant be proven, on the balance of probabilities, that the claimant’s damage was caused by the defendant’s act or omission
       • but the claimant has lost a chance that can be measured in percentage terms
       • Gregg v Scott
       • Hotson v East Berkshire

2. Exception 5 - failure to warn cases

   • Medical cases - if patient would have op anyway - it must fail, if they wouldn’t have then it may succeed
   • test is SUBJECTIVE
     • CHATTERTON
       • patients evidence as to what they would have done is tested against a reasonable patient with the same hopes and concerns
       • 4 factors when testing patients evidence
         • 1) how necessary was the operation for medical reasons?
           • the more necessary, the more likely it is the patient would have had the operation even if the risk had been given
             • Hills v Potter
               • condition was very grave and she needed relief - gravity of condition indicated that she would have proceeded with the operation
         • 2) whether patient had any past bad experience of medical treatment - was there a nervousness/fear of medical treatment
           • more wary they are of medical treatment the more likely the patient would have said no if the risk had been told
         • 3) patients employment situation is considered - how necessary was the operation?
           • if it isn’t necessary the patient may have declined the operation despite the warning being given
           • Smith v Salford
             • employment situation was so dire he would have proceeded with operation even if the risk had been disclosed
         • 4) to what extent did this patient show absolute trust their medical advisor to follow their medical representations?
           • if they always follow doctors advice then they would have had operation anyway
             • Hills v Potter
               • had always shown a great faith in following her doctors advice
       • Exception - Chester v Ashfar

3. Intervening Acts

   • if there is a break in the chain of causation it is an intervening act
     • novus actus interveniens
   • scenarios
     • Fault of Claimant
       • act by claiamnt must be so unlikely as to be almost unforeseeable
         • McKew v Holland and Hannen
           • M suffered injury at work to leg
           • He decided to inspect flats and he was coming down a steep flight of stairs with no handrail and unaccompanied
           • His weak leg gave way and he fell and broke his ankle and suffered serious leg injury
           • HELD - YES this was an intervening act - it is legally possible for claimant to sever the chain of causation himself by his own lack of judgement
         • Wieland v Cyril Lord Carpets
           • car accident - W had suffered injury - and had a bad neck
           • tripped down stairs (had her son helping her)
           • said because of her neck she couldn’t see very well
             • neck was in brace
           • Held - this WASNT an intervening act
             • in contrast to McKew this was reasonable behaviour - W had assistance as she was disabled
     • By a second defendant’s negligence
       • Knightley v Johns
         • J negligently overturned his car in a tunnel - police were called and the senior police officer forgot to close the tunnel
         • instructed 2 police to ride on the motorcycles and close the tunnel
           • had to drive the wrong way down a one way tunnel to do so
         • one of police officers (Knightley) collided with a car and he is badly injured
           • police officer sued Johns, senior police and sued driver who hit him (Cotton)
         • HELD - C couldn’t be liable - this was an inevitable accident - nothing any reasonable driver could have done to avoid colliding with PC Knightley
           • 2) Johns wasn’t liable as police officers negligence was a novus actus - an intervening act 2 reasons
             • 1) true that none of these events but for mr johns negligence (D1)
             • 2) police officers conduct was so unforeseeable and unexpected that it must sever the chain of causation
     • By someone doing a criminal act following D1's negligence
       • criminal acts could sever chain of causation
       • Home Office v Dorset Yacht