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Seminar 4 CAUSATION AND REMOTENESS OF DAMAGE Wilsher v Essex AHA [1988] AC 1074 (HL) Chester v Afshar [2004] UKHL 41, [2004] 4 All ER 587 Gregg v Scott [2005] UKHL 2 1. In what ways do the rules on factual causation help to achieve the general aims of tort law? ● ● ● ●

It links the defendant to the claimants harm, and it helps us allocate responsibility for the harm and risks. Establishing the compensation. Correcting a person's mistakes towards another. (corrective justice) In grounds of policy: deterrence, establishing limits in what people can and cannot do

2. ’Ben is a police constable training to be a pursuit driver. During one training session Ben was ordered by his instructor, sergeant Alice Green, to drive at 90 mph down a country road with his siren and blue lights on. After a couple of miles Ben caught up with another car, driven by Tom. Panicked by the sudden appearance of Ben, Tom veered off the road into a ditch. Ben and Alice stopped and were able to pull Tom clear of the wreckage, but his passenger, Gladys, was trapped in the car. Tom was taken by ambulance to the nearby hospital, but the accident and emergency department were unable to treat him because of a large influx of patients with serious burns. The latter had been caused by a fire at a nearby cafe, started intentionally by a disaffected cook, cyril. Tom was removed to another hospital, ten miles away. Tom was treated by Dr Jones, but permanently lost the use of his right arm. Had he been treated sooner his arm may have been saved, although the issue was complicated by the fact that Dr Jones failed to use the most effective drug when he first dealt with Tom’s injuries. Gladis was released from the wreckage three hours after the accident and, although not seriously hurt, was taken to hospital to be checked. On route to the hospital the ambulance was involved in a collision with a wild deer which ran into the road. Although the impact was relatively mild, because she suffered from arthritis Gladis sustained arm and leg injuries. Discuss Problems: ALICE, is she negligent? knightley v john BEN, is he? Assume he is. TOM, is he? Assume he is. Toms harm affected by a number of factors. To establish causation, divide in factual and legal. Can we apply the but for test to identify causation? Balance of probability? What is too remote? Was alice liable for the accident because she was the one to tell ben to drive there? Is ben liable for the accident suffered by tom? Is the cook liable for tom because the emergency room was full of the people he caused harm to? Is DR. Jones liable to any extent for not using the most effective drug? Is the fact that gladis suffered from arthritis make the ambulance liable to any extent?

Hotson v East Berkshire Health Authority Deer: intervenant act, breaks chain of causation. BEN ALICE TOM GLADIS EGGSHELL SKULL RULE: you take a victim as you find them...