Flashcards
Chapter 4 : Causation
Cards in this deck (43)
- 1If it is proved that the defendant owed a duty of care and that the defendant breached that duty, the claimant does not need to provide that the defendant's breach caused the claimant's loss. True or false?False. Even if it is proved that the defendant owed a duty of care and that the defendant breached that duty, the claimant must still prove that the defendant's breach caused his loss. There must be a causal link between the breach and a loss that the law regards as worthy of compensation.
- 2In order to succeed in a claim, the claimant must establish that there is causation......in fact and, if so, causation in law.
- 3What is causation in fact?Causation in fact requires that, on a strict balance of probabilities, the harm would not have occurred "but for" the negligent act. It also requires the causal link not to have been broken by intervention of outside events, or even the claimant's own acts.
- 4What is causation in law?Causation in law requires that the damage is not too remote from the negligence.
- 5Can legal causation exist in the absence of factual causation?No, legal causation cannot exist in the absence of factual causation.
- 6What are the three main questions in relation to causation of damage?1. Did the breach cause the damage?
2. Was the chain of causation broken?
3. Was the damage too remote? - 7What is the legal principle regarding the "but for" test?The "but for" test means the court will ask "would the claimant have suffered the loss but for the defendant's negligence?" (i.e. if the defendant had not committed the negligence, would the claimant still have suffered the loss?).
- 8Which cases illustrate the "but for" principle?Barnett v Chelsea and Kensington Hospital Management Committee [1969], Holt v Edge [2007], Gouldsmith v Mid Staffordshire General Hospitals NHS Trust [2007] and Palmber v Cornwall County Council [2009].
- 9Which cases illustrate the "but for" test in practice?Page v Smith (No. 2) [1996], Chester v Afshar [2004] and Gregg v Scott [2005].
- 10When do the rules on causation become problematic?Rules on causation become problematic where there are multiple potential causes of harm. In some circumstances the test for causation is relaxed.
- 11Explain the issue "where the injury is indivisible".This is whether it is possible to divide the injury into portions, each clearly caused by different events (including different tortfeasors). Under normal circumstances, if it is not possible to divide up an injury, the "but for" test applies strictly.
- 12Which case demonstrates the issue "where the injury is indivisible"?Wilsher v Essex Area Health Authority [1986].
- 13Explain the issue "where the injury is divisible".The situation is complex where there are multiple causes of harm because the traditional "but for" test would produce unjust results if the defendant's negligence has only contributed to (rather than being the sole cause of) the loss suffered by the claimant. The traditional judicial approach to "correct" such injustice was to adapt the test for causation in fact in such circumstances so a defendant would be liable to a claimant if the defendant's tortious act has made a "material contribution" to the risk that the claimant will suffer harm.
- 14Explain the issue "where it is scientifically impossible to determine who is at fault".Sometimes (only in the case of some industrial diseases) It is impossible to determine which of a series of possible causes is, in fact, the cause of the damage sustained by the defendant. The leading (but now outdated) case on this is McGhee v National Coal Board [1972]. The practical effect of the material increase in risk test is to remove the requirement that the claimant prove on the balance of probabilities, that the defendant did in fact cause the harm claimed. This is only possible where policy consideration demand it, in the interests of justice.
- 15Explain the special rules than apply in mesothelioma cases.Mesothelioma is a fatal lung condition which leaves patients unable to breath. It is caused by asbestos and can take 30 years to develop. As it is difficult for a claimant to establish which possible exposures caused it (and the time delay) special rules apply for compensation to be awarded.
- 16What are these special rules known as?The Fairchild/Barker/3 exception.
- 17What did Fairchild and Others v Glenhaven Funeral Services Ltd and Others [2002] establish?In Fairchild and Others v Glenhaven Funeral Services Ltd and Others [2002] it was held (where claimant had worked for numerous employers that used asbestos) the claimant only had to prove one employer's negligence had materially increased the risk of contracting the disease in order to recover full damages from that employer.
- 18What did Barker v Corus (UK) plc [2006] establish?In Barker v Corus (UK) plc [2006] it was held that the claimant could recover from each defendant only a proportion of those damages for his disease, based on the contribution that the defendant's conduct had made to his chances of contracting the illness. Therefore if one or more potential defendants had become insolvent or ceased to trade, the claimant might be able to recover only a fraction of the damages to which he would otherwise have been entitled to.
- 19What happened after Barker v Corus (UK) plc [2006]?Parliament reversed this unpopular judicial decision. S3 Compensation Act 2006 provides that any person who materially increased the risk of the claimant's exposure to asbestos is jointly and severally responsible for the damage. This means that any one employer can be liable for the whole of the damages due to the claimant, even if his contribution to the increased risk was small.
- 20What was the outcome of Sienkiewicz (Administratix of the Estate of Enid Costello, Deceased) v Greif (UK) Limited/Knowsley Metropolitan Borough Council v Willmore [2011]?These joined cases reviewed the situation in relation to Mesothelioma. The cases involved claimants who had contracted mesothelioma where there was only one potential defendant. The defendants argued the Fairchild/Barker/3 exception should not apply in cases where there was only one potential defendant. This was unanimously agreed that the Fairchild/Barker/3 exception continues to apply to mesothelioma even if there is only one potential defendant. Therefore it is sufficient to show that the defendant's conduct "materially increased" the risk of harm, which simply means increasing it by more than a negligible amount.
- 21Which cases support that different considerations apply if the claimant's second injury occurs when he is doing something that he would not have been doing had it not been for the first injury?Baker v Willoughby [1969] (where the claimant's second negligently caused injury did not reduce the compensation to which he was entitled as a result of the first negligently caused injury), Jobling v Associated Dairies [1982] (where the claimant's subsequent development of a disease reduced the defendant's liability for an injury that had made the claimant incapable of working).
- 22Which case reconciled Baker v Willoughby [1969] and Jobling v Associated Dairies [1982]?Rahman v Arearose Ltd [2000] stated that the cases could be reconciled by considering the damage for which the tortfeasor "should justly be held responsible". This seems to mean that a further deliberate or negligent act does not end the original tortfeasor's liability (Baker) whereas a natural disease does end it (Jobling).
- 23If there is a break in the chain of causation, will the original tortfeasor be liable for the events that happen after the break?No.
- 24It is often the case that a series of linked events ultimately leads to loss or damage. In these cases, what must the court decide?The court must decide whether the later events are sufficient to break the chain of causation between the defendant's original negligence and the claimant's loss or damage.
- 25What is the event that causes a break called?Novus actus interveniens
- 26What are the three types of novus actus interveniens?1. An intervening act of nature (i.e. a storm or an earthquake);
2. An intervening third party act; or
3. An intervening act of the claimant (i.e. not following medical instructions). - 27If the act is held not to be a novus actus interveniens, what two ramifications may the event still have in a negligence claim?1. A non-intervening third party act may be found to be negligent. If so, then the claimant may well claim against that third party as another defendant, and if both defendants are found liable, a court will apportion damages between them.
2. A non-intervening act by the claimant may constitute contributory negligence. - 28A third party intervening act must be reasonably foreseeable on the objective test at the time of breach. True or false?True. This is supported by Knightley v Johns [1982].
- 29In which case did the court hold that a novus actus interveniens was not sufficient to remove all liability from the original tortfeasor?Rouse v Squires and Others [1973].
- 30Third party negligence will not often form the basis of an additional claim by the claimant in negligence, against a second defendant. True or false?False. Third party negligence WILL often form the basis of an additional claim by the claimant in negligence , against a second defendant.
- 31What is the general rule where negligent medical treatment will be a novus actus interveniens in a case where the victim needed the medical treatment because of an injury as a result of a tort?The general rule is that such treatment may reduce the original defendant's liability for the injury, but not remove it completely, because the original injury put the victim in a situation where he was at risk from negligent medical treatment. This is supported by Webb v Barclays Bank PLC and Portsmouth Hospitals NHS Trust [2001].
- 32Why is the test for an intervening act of the claimant more demanding than an intervening act of nature or third party?This is because the courts try to protect claimants from undermining their own rights, and because their blameworthiness is more commonly addressed when dealing with contributory negligence. The act of the claimant must be entirely unreasonable in the circumstance. This is supported by Sayers v Harlow Urban District Council [1958].
- 33What does McKew v Holland & Hannen & Cubitts (Scotland) Ltd [1969] show?This case shows that a claimant who has already suffered some harm must take care not to worsen his own situation. If he negligently does so, he may receive no, or reduced, damages.
- 34Which case shows that deliberate self-harm will not necessarily break the chain or causation?Corr (Administratix of Corr Deceased) v IBC Vehicles Ltd [2008].
- 35Which case was similar to McKew v Holland & Hannen and Cubitts (Scotland) Ltd [1969] but had a different outcome?Spencer v Wincanton Holdings Ltd [2009]. In this case it was held that by not asking for help / using his artificial leg / walking stick did not break the chain of causation between the employer's negligence and his second accident.
- 36Causation in fact involves the claimant providing that the defendant did cause the damage suffered, by establishing the chain of causation and showing that it has not been broken. What does causation in law ask?SHOULD the defendant in this case be liable for this damage?
- 37Why is it, in negligence, that causation in law is not as commonly critical as in other areas of law (like contract law)?This is because the fact a duty of care already exists normally shows that this sort of damage is foreseeable in this sort of situation.
- 38What is the basic rule for legal causation?The basic rule is that damages will be given only if the type or kind of injury is a foreseeable result of the breach of duty. If the type or kind of injury is not foreseeable, it will be too remote from the breach of duty and damages will not be awarded.
- 39What is the leading case on legal causation?The Wagon Mound [1961] established the test for remoteness is whether a reasonable person would have foreseen the type or kind of damage that occurred when he acted negligently.
- 40Claimant need not prove that the specific damage suffered was reasonably foreseeable; they need only prove that the type of damage suffered was reasonably foreseeable. True or false?True.
- 41What is the "thin skull" rule?This means the defendant must take his victim as he finds him. If an injured person suffers more than would be expected, the defendant will be liable, provided that the type of injury was foreseeable.
- 42Which two cases support the "thin skull" rule in relation to personal injury?Smith v Leech Brain [1962] and Robinson v Post Office [1974]..
- 43Which case supports the "thin skull" rule in relation to a person's poverty?Lagden v O'Connor [2004].
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- Level 3 Law of Tort Flashcards on Chapter 4 : Causation, created by Emily Greig on 22/05/2018.
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