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Flashcards by Sam Grimley, updated more than 1 year ago
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Created by Sam Grimley
about 5 years ago
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| Question | Answer |
| What is factual causation? | Is there a causational link, on the facts, between the claimant's loss and the defendant's actions? |
| What is legal causation? | Drawing a notional ring around the chain of causation to limit liability at some point. The chain of causation can be broken. |
| What is the primary test for establishing factual causation? | The 'but for' test. It must be shown that the defendant's actions were more than 50% responsible for the claimant's loss. |
| Give an authority in which no causation was found using the 'but for' test. | Barnett v Chelsea and Kensington Hospital [1969] Facts: Mr Barnett drank arsenic tea. The doctor failed to carry out a proper examination. Mr Barnett died. Even if the doctor had carried out an examination, Mr Barnett would still have died. Held: Duty? Yes. Breach? Yes. Causation? No. Barnett football team come down from north london to play the Chelsea and Kensington (posh) hospital team. The Barnett players have been poisoned with arsenic. It wasn't C&K's fault. No causation. |
| Give a case in which the irresponsible actions of the claimant broke the chain of causation. | McKew v Holland (1969) Facts: Claimant's leg had been injured such that it would give way from under him upredictably. He had specifically been advised not to go down stairs without support. He was going down carrying a child. He fell and suffered further injuries. He tried to hold the original defendants responsible. Held: his actions were so unreasonable, that he broke the chain of causation. Aide: He's going down the stairs in a green (kew) kilt and the spiral stairs are in a windmill. |
| Give a case in which the actions of the claimant were not considered irresponsible enough to brake the chain of causation. | Wieland v Cyril Lord Carpets (1969) Facts: Claimant wore a neck brace as a result of an injury caused by the defendants. She also wore bifocal lenses but couldn't move her head to adjust focus. Claimant suffered an injury falling down stairs. Sued original defendants again. Held: Reasonable for her to go down stairs, therefore claim succeeded. Aide: Why did her claim suceed when she landed on her face? Because Lord Cyril Sneer's carpets were at fault. |
| Give a case in which the actions of the claimant were irresponsible, but, for the sake of fairness, the courts decided to see the chain of causation as unbroken. How did the courts take the claimant's irresponsibility into account? | Spencer v Wincanton (2010) Facts: Spencer was injured at work due to the negligence of Wincanton. His leg injury was so painful, he elected to have his leg amputated. On one occasion he didn't put on his prosthetic leg and ended up tripping and damaging his good leg. Did his actions break the chain of causation? Held: Courts were very sympathetic, and up held his claim for the second injury. In the end they considered his actions 'contributory negligence' and decided to reduce his compensation. In the end this is about fairness. The courts wanted to find a fair result for Spencer. Aide: Poor old frank spencer lost both his legs. The defendants can't win. Win - can't - town. |
| Give an authority where multiple independent causational factors lead to the courts finding no causation. | Wiltsher v Essex Facts: the junior doctor who incorrectly canulated a premature baby. The baby subsquently suffered blindess. Held: The blindness could have been cause by multiple factors, and thelikelihood that the actions of the doctor caused the breach, could not be proved to be more than 20%. Causation not found. |
| Who has the burden of proof in the 'but for' causation test? | The claimant. |
| What is the minimum possible likelihood that the breach caused the loss for causation to be found? | 51% (balance of probabilities) |
| Give an authority where the court of the first instance tried a novel way of awarding damages in a case of multiple causation. Did the HoL approve? | Hotson v East Berkshire Health Authority [1987] Facts: child fell from tree, broke left. After negligent hospital treatment was left paralysed. Held: The chance that the child would have been paralised anyway was 75%, but the treatment left the child 100% likely to be paralysed. The first court awarded 25% damages to cover 'loss of chance', the HoL rejected this, because the probability was always more than 50%. Booga: is your son hot? The child was super good looking when he fell. Imagine the tree on a map in east Berkshire. Slough is far east berkshire. |
| Give an authority that shows what happens if the initial probability of survival, though reduced through negilgence, was already below 50%. |
Gregg v Scott [2005]
Facts: the negligent failure to diagnose the claimant’s cancer, reduced the claimant’s survival rate from 42 to 25 per cent
Held: no causation found, as the likelihood that the claimant would die anyway was always more than 50%.
Greg (Sofka's friend) has cancer and is suing Scott McKeon… Greg was gonna die anyway…
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Scott (binary/octet-stream)
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| Give an example in which the courts used a novel way of awarding damages for pure economic loss, that is not normally used for other types of loss. | Spring v Guardian Assurance Ltd (1995) Facts: the defendant's gave the claimant a bad reference. Held: the courts awarded damages for 'loss of chance' something that they do not do for other types of loss (presumably this is where the causation may be a less than 50% cause of loss). Aide: Spring lost his chance of working anywhere else because of the negligence of the Guardian. |
| Loss of chance has generally not been allowed in personal injury claims. When have courts allowed it? Give case authority. | Allied Maples Group v Simmons & Simmons [1995] Facts: the defendant failed to advise the claimant to include a clause in a contract. Held: there was a real and substantial chance the other party would have agreed to the clause. 'Loss of chance' damages awarded. Several Tim Maples are alled from all over the world. Agains a young Nick May when he used to work at Simmons and Simmons. He failed to put in a clause, the Maples won their loss of chance. |
| Give a case that shows the 'material contribution test' in contributory negligence. | Bonnington Castings v Wardlaw [1956] Facts: The claimant suffered a lung disease from exposure to dust in a workshop. Some of this exposure was a normal part of the job, and some was the result of the defendant's negligence in not protecting the claimant. Held: the normal 'but for' test could not be satisfied because it was just not possible to separate out the factors and know what the probability would have been of contracting the disease without the negligence. The courts designed the 'material contribution test' for such cases, that required the claimant to show that the negligence had been a 'non negligent' contributory factor. Dispute: the key difference between these types of 'contributory negligence' cases and the 'independent causes' seen in Wiltsher, is that ther is one causal agent, in this case dust. In Wiltsher, there were multiple, separate, causal agents. Aide: Bonnington like castle donnington but more beautiful (bon) castings - imagine some bronze casting in that courtyard. Ward (child under my responsibility) in Law. They had resposibility in law. He was ward |
| Give a case where medical or other expert witnesses are unable to say conclusively whether the claimants loss was the result of negligence, or the natural progression of their disease. | Bailey v Ministry of Defence [2008] Facts: claimants brain damage, caused by cardiac arrest, could have been the result of the natural progression of the claimants disease, or could have been the result of negligence. Medical experts could not agree. Held: Bonnington test was applied and the courts found that negligence was a non-negligent contributory factor and 'but for' causation found. The cardiac arrest was the 'one causal agent'. A number of factors contributed to this agent in a cummulative manner, and it was not possible to determine exactly to what extent each was to blame. Aide: Glass of Baileys given to the patient on the front line in a war. Did the bailey's contribute to his brain damage, or was he going to get it anyway? The courts applied Bonnington. |
| Give a case where the Bonnington test could not be applied, leading the courts to invent a new test. | McGhee v National Coal Board [1973] Facts: The defendant suffered dermititis as a result of encountering brick dust at work (non-tortious). However the employer did not provide showers to wash off the dust at the end of the day. Held: unlike in Bonnington, the disease did not occur as the result of cummulative exposure - one exposure was enough. The courts held that the employer materially increase the risk of contracting dermititis and liability was found. This is distiguished from Bonnington. Sarah McGhee working in a brick factory coming out in a rash. Making black bricks out of coal. She didn't get to shower at work… the materially increased the risk. |
| Give a case where the Wiltsher 'but for' test, and the Bonnington 'material contribution test' could not be applied. It shows an extension of the principle in McGhee. | Fairchild v Glenhaven Funeral Services Ltd & Others [2003] Facts: the claimant had worked for a number of employers in the 1960 who had exposed him to asbestos. He had contracted mesthelioma (a specific form of lung cancer associated with asbestos). Held: the 'but for' test failed as it wasn't possible to say which employer had contributed. The cummulative causation test from Bonnington could also not apply as it was possible to get cancer from a single exposure. The courts used the approach in McGhee and stated that the employer had materially increase the risk of cancer. Imagine a fairchild compressor getting asbestos poisoning from another piece of equipment. Any number of other pieces of outboard gear could have been responsible, so the 'materially increased the risk' test was applied. The Defendant is Glenhaven (a heavenly glen) funeral services. |
| Give a case similar to Fairchild in which the courts used a different approach to apportioning damages. | Barker v Corus UK Ltd [2006] Facts: asbestos exposure leading to Mesothelioma. Held: the HoL apportioned liability propotionately between employers. Dispute: This has been reversed (for mesothelioma claims) by s 3 Compensation Act 2006 which restored joint and several liability (where any or all of the employers that negligently exposed the claimant to asbestos will be liable for the whole sum of damages). Imagine Justin Barker (that boy from Coleridge) v a 'chorus' of contractors who gave him lung cancer. The HoL apportioned blame equally. Reversed by s3 of the compensation act 2006. |
| Give an example of the court apportioning blame between the claimant an multiple defendants. | Fitzgerald v Lane & Patel [1987] Facts: The claimantwas crossing a road at a pelican crossing when the lights were at red for pedestrians. The first defendant driver collided withhim and the claimant was thrown from the bonnet of that car into the road, where he was run over by a car driven by the second defendant. Held: the trial judge held all three to be responsible equally and apportioned blame accordingly. The court of appeal upheld this approach, but changed the apportionment to 50% the claimant and 25% for each defendant. Ella Fitzgerald was the claimant crossing the road. One driver was Cleo Lane, the other was Mr Patel from the local corner shop. Blame apportioned between them all. |
| What is the term that describes acts that happen after a negligent breach that break the chain of causation? | Novus Actus Interveniens |
| What are the 3 types of novus actus interveniens? | 1. Acts of God 2. Acts of 3rd parties. 3. Acts of the claimant. |
| Acts of God or Natural Events will only break the chain of causation if they are unforeseeable and independent. Give an authority that shows when an act of god could be forseeable. |
Humber Oil Terminal Trustee Ltd v Sivand [1998]
Facts: the defendant’s tanker negligently collided with and damaged the claimant’s dock causing property damage. During repair of the dock, further expenses were incurred when the sea bed collapsed.
Held: The further expenses caused by the collapse of the sea bedwere still recoverable. The collapse was not a novus actus in that it was within the realms of foreseeability.
Ship banging into the side of the humber estuary and spilling oil.
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Sivand (binary/octet-stream)
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| What if an accident sends the victim criminally insane? Can they claim for the acts they commit as a result? Give authority. | Meah v McCreamer (No 1) [1985] Facts: the claimant suffered injury in a road accident which later led to him developing a personality disorder. This disorder led to the claimant committing various criminal acts including rape. Held: As the disorder was linked to the original tort, it could not be said to break the chain of causation. Man goes around shouting 'Meah' all the time because he's crazy. McCreamer is McDonalds creamer. The truck that hit him was carrying creamer for McDonalds. |
| Give an authority that shows how the act of a third party can break the chain of causation. | Knightley v Johns [1982] Facts: Johns caused a road traffic accident. Subsequently, a police inspector negligently handled traffic control following the accident. This led to the claimant, a police officer, being killed (he had been ordered to travel down a tunnel against the flow of oncoming traffic). Held: Johns successfully argued that the negligent handling by the police inspector broke the chain of causation between his negligence and the death of the officer. The police inspector’s actions were unforeseeable Keira Knightley was the police officer who was killed. Ethan Johns caused the accident, because he was playing a j45 while driving. |
| What if the victim acts instinctively in the heat of the moment? | Scott v Shepherd (1773) Held: 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. Scott instictively fighting a Shephard in the heat of the moment. |
| How do the courts generally treat medical negligence (by a third party) that follows a tortious injury? Give authority | Robinson v The Post Office [1974] Facts: Robinson was injured through the Post Office's negligence and was given an anti-tetanus injection, to which he proved allergic (causing Robinson to suffer to a greater extent than he otherwise would have done). The doctor should have carried out an allergy test before administering the anti-tetanus injection. Held: Having an adverse reation to medical treatment is considered foreseeable and not generally seen as breaking the link of causation. For policy reasons. Imagine Robinson crusoe getting a tetanus jab at the post office. |
| Courts often consider whether or not the claimant acted reasonably after the event. If they did, no break in causation is found. Give authority. | Emeh v Kensington and Chelsea Health Authority [1985] Facts: the defendants negligently performed a sterilisation operation on the claimant who later fell pregnant and refused to have an abortion. She sued for the cost of bringing up her child. The defendants argued that her refusal to have an abortion broke the chain of causation. Held: The court held that the claimant had not acted unreasonably and, therefore, her refusal did not break the chain. Aide: Emel pryor saying 'meh'. She get's pregnant after a sterilisation an says 'meh'. |
| What if the victim commits suicide when the defendant has a duty of care towards the claimant? Is that seen as breaking the chain of causation? |
Reeves v Metropolis [2000]
Held: Because the police's duty of care was to prevent the claimant from committing suicide, it could not be considered an actus novus.
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Reeves (binary/octet-stream)
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| What if the victim commits suicide? Is that seen as breaking the chain of causation? What about if suicide is not part of the initial duty of care? | Corr v IBC Vehicles Facts: Mr Corr suffered a severe head injury in an accident at work. This not only caused physical injuries but also led to significant psychological symptoms, including post-traumatic stress disorder (PTSD) and depression. Six years after the accident, he killed himself. Held: defence argued they had no DoC regarding suicide and it was an Novus Actus. The court rejected this and held the chain of causation was unbroken. Aide: Andrea Corr gets injured on stage, goes mad and kills herself. The gig was for IBC vehicles |
| What if the victim of a tortious injury sustains a second tortious injury that requires the limb injured in the first accident to be amputated? |
Baker v Willoughby (1970)
Facts: Claimant lost leg in negligent accident caused by defendant. Subsequently lost leg as a result of being shot in leg during armed robbery. Tried to continue receiving damages for lost leg, even though it had been amputated.
Held: courts allow claimant to continue claiming damages, as his state of disability had not been significantly changed by losing the leg.
The personal baker of Holly Willoughby, injures leg because of her negligence.
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Baker (binary/octet-stream)
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| What if the victim of a tortious injury subsequently develops a congenital disease in the same area? | Jobling v Associated Dairies (1982) Facts: claimant had back injury caused by negligent employers. Later developed spinal disease. Completely unconnected. Should the employer continue paying for the back injury? Held: no. The spinal disease was congenital and would have occurred anyway. Employeer only responsible for period between back injury and onset of disease. Dispute: what's the difference between Baker and Jobling? The first didn't make a huge difference to the claimant's damages, and may not have happened anyway. The second would have happened anyway. Aide: Wobbling because of a back injury cause by job (Jobling). Back injury caused by slipping on milk. |
| Claimant is injured in two accidents. Injuries compound each other. How much can he claim from the second defendant? |
Murrell v Healy (2001)
Facts: claimant was injured in two completely unrelated car accidents. The question was how much of the damage was the second defendant liable for?
Held: only the extent to which they had made the condition worse.
Kenny Burrell's mum v Denis Healey. Imagine them in a car accident. Kenny's mum thinks Healy is rich and so tries to sue him for existing injuries.
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Healy (binary/octet-stream)
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| What if a car gets damaged on the way to the body shop to get repaired for damage from a previous accident? Can they claim for the respray in the second claim? | No. Performance Cars v Abraham (1962) Facts: property damage. Car damaged in crash, on the way for respray, the car suffered a second crash. Could damages from the second crash cover the respray? Held: you can only claim on the basis of the condition at the time of the incident. Claims against second defendant for respray disallowed. |
| What was the authority for insurance companies wanting to deny liability for mesothelioma claims? On what grounds? | Trigger litigation Facts: Insurance companies argued that the wording of their insurance contracts was such that it was triggered by development of the disease not exposure to the disease. Thus, a finding of materially increasing the 'risk' could not legitimately trigger their insurance policies. Essentially meaning rulings under Fairchild don't fall under their insurance. Held: Courts said NO - the wording of the contracts covers the employers for exposure as all as injury. |
| What was the authority for insurance companies wanting to split liability for mesothelioma claims? On what grounds? | IEG v Zurich Facts: The 'trigger litigation' said that insurers have to pay out for exposure not just injury. What if the insurance policy purchased by the employer was for only a portion of time being litigated for? If an employee is with a company for 6 years, and over that time the employer had three insurance companies - can any given insurance company spread their loss across all three companies? Held: Insurers were allowed to apportion their damages in accordance with the time they had insured for exposure. |
| What is the authority for the only time fairchild has been applied for a non mesothelioma case? | Hennegen v Manchester Dry Docks Held: The only case where the approach from Fairchild has been used for a condition other than Mesothelioma. This was also a lung disease caused by asbestos, but shows the courts may be willing to apply the approach from Fairchild outside mesothelioma. This is a good case for discussing how radical ‘increase in risk’ was as an approach as it was discussed in the judgement. Hen again. The second hen also had a lung disease, but not mesothelioma. |
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