Torts Negligence Causation and Remoteness Quick Notes PDF

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Torts / Negligence / Causation and Remoteness Quick Notes What must be established before this stage? - That D has breached his duty of care to C What must be established at this stage? - C must prove that this breach caused the damage CAUSATION - CAUSATION What two points must be considered to determine if there is a nexus between breach and damage? - 1) Factual causation 2) Legal causation Factual causation - Establishing the link between breach and the damage/loss Legal causation - Considering whether there are any grounds upon which the link should be regarded as having been broken FACTUAL CAUSATION - FACTUAL CAUSATION Tests for factual causation - 1) Basic factual causation - the 'but for' test 2) Multiple causes - independent and cumulative Yorkshire Dale Steamship Co v Ministry of War Transport - Lord Wright: Causation is to be understood as by the man in the street, and not as either the scientist or the metaphysician would understand it This demonstrates a pragmatic, common-sense approach which therefore makes it difficult to discern a clear legal principle. Ultimately, decisions are driven by overriding policy considerations Basic factual causation - The 'but for' test is used when there is a single cause for the damage - But for D's breach of duty C would not have suffered the loss Cork v Kirby Maclean - BASIC FACTUAL CAUSATION Even where the situation is more complex, the 'but for' test should always be the staring point for trying to establish was kind of situation is present. It may also help to identify whether an alternative test is necessary and, if so, which one Barnett v Chelsea & Kensington Hospital - BASIC FACTUAL CAUSATION FACTS: Hospital breached the duty of care owed to a patient in that a Dr failed to carry out a proper examination. The patient died of arsenic poisoning. However, the evidence showed that he would have died even if the doctor had examined him.

HELD: DoC owed nonetheless even though patient would have died following poisoning - failure of the 'but for' test Mount v Baker Austin - BASIC FACTUAL CAUSATION It is not always clear what would have happened but for D's negligence FACTS: solicitors failed to pursue their client's claim sufficiently quickly with the result that it was struck out i.e. dismissed by the court as having no real merit for trial. The client sued the solicitors for delay. HELD: the client had failed to show that his original claim had a realistic prospect of success, and, therefore, it could not be said that the solicitors' negligence had caused any loss Multiple causes can occur in two ways - 1) Independently 2) Cumulatively Wilsher v Essex - INDEPENDENT MULTIPLE CAUSES C has suffered a loss that is known to have been caused by one factor working independently [A or B = loss]. Where the non-tortious cause is 50 per cent or more, C will always fail to establish factual causation. FACTS: C was born prematurely. He suffered a condition that cause him to go blind. There was evidence that his blindness could have bene caused by an of five different factors, only one of which was tortious (i.e. an excess of oxygen given incorrectly). The others were all the natural result of his premature birth. The evidence suggested that these facts did no operate together to cause the blindness - one factor was solely responsible for his loss But for test applied - C needed to prove that it was more likely than not (i.e. 51%) that the blindness was caused by the negligence as opposed to any of the other possible factors. C was unable to do this on the evidence available and so did not succeed Fairchild v Glenhaven Funeral Services & Others - INDEPENDENT MULTIPLE CAUSES Mesothelioma The general rule is that, where there are several possible independent causes of a loss and it is not possible to prove from the evidence available which one actually caused the loss then C will fail. This is because C has the burden of proof when applying the but for test However - one notable exception: FACTS: D worked for a number of employers at different times in the 1960s, all of whom exposed him to asbestos. Some 25 years later, he developed mesothelioma, a form of lung cancer specifically associated with asbestos exposure. CoA decided that the disease had been

caused by a single exposure (as opposed to cumulative exposure over time) and the but for test failed, as in Wilsher, because it could not be proved which employer had exposed C to the single fibre of asbestos Hotson v East Berkshire Health Authority - INDEPENDENT MULTIPLE CAUSES Where the risk of damage from the non-tortious cause is 50 per cent of more (e.g. a fall from a tree; as opposed to medical negligence), C will always fail to establish factual causation. Causation should be based on the damage caused, not the loss of chance FACTS: Leg fracture after fall from tree, undiagnosed for 5 days - 75% chance would develop paralysis even if medical treatment had been perfect HELD: Causation should be based on the damage caused, not loss of a chance, and the reality of the situation was held that the child was most likely paralysed by the original fall (e.g. If it was 75% likely to have happened anyway, this does not entitle the claimant to 25% of damages). Claim failed - the 'negligent act' must have materially contributed to injury - deny recovery where damage/loss inevitable i.e. it would have, more likely than not, happened anyway Gregg v Scott - INDEPENDENT MULTIPLE CAUSES - Loss of chance (Medical) Where the risk of damage from the non-tortious cause is 50 per cent of more (e.g. a fall from a tree; as opposed to medical negligence), C will always fail to establish factual causation. Causation should be based on the damage caused, not the loss of chance FACTS: Tumour misdiagnosed, chances of survival for further 10yrs decreased from 42% to 25% HELD: HoL split- need proof on balance of probability that negligence causative of adverse consequences Bonnington Castings v Wardlaw - CUMULATIVE CAUSES - INDUSTRIAL DISEASE Where a loss is caused by two or more factors operating together (A + B = loss) FACTS: C claimed compensation in negligence from his employers for a respiratory disease. Whilst it was clear that the cause of the disease was exposure to dust at work, only part of this exposure was due to D's breach of duty. Some of the exposure was deemed to be a natural consequence of the work being carried out ( & therefore, non-tortious). Here the tortious and non-tortious factors operated cumulatively to produce the loss Cannot apply the 'but for' test - cannot tell how much of the loss was caused by tortious exposure to the dust and how much by the non-tortious exposure Apply the MATERIAL CONTRIBUTION TEST:

If D's breach could be proved to have materially contributed to C developing the diseases then D would be liable for all the loss McGhee v National Coal Board - CUMULATIVE CAUSES - INDUSTRIAL DISEASE Apply the MATERIAL CONTRIBUTION TEST: If D's breach could be proved to have materially contributed to C developing the diseases then D would be liable for all the loss FACTS: C had contracted dermatitis as a result of exposure to brick dust. C worked with brick dust during his working hours and there was no breach in relation to this exposure (i.e. non-tortious). His employers, however, were in breach of duty for failing to provide washing facilities for him to was the brick dust off his skin at the end of the working day. As a result the brick dust was on his skin for an extended amount of time including his cycle journey home C would not have contracted dermatitis but for the exposure to the brick dust Medical experts could not state with certainty whether the dermatitis was caused by the exposure during the working day (non-tortious) or through the extended time that the dust remained on the skin (tortious) HELD: HoL imposed liability on D on the basis that their breach had material increased the risk of C's injury Mountford v Newlands School - CUMULATIVE CAUSES - NON-INDUSTRIAL DISEASE The MATERIAL CONTRIBUTION TEST is not just applied to cases of industrial disease FACTS: The schoolmaster (D) was held to have increased the risk of C suffering injury in a school rugby match by selecting a player who was older than the age limit for the team Bailey v Ministry of Defence - CUMULATIVE CAUSES - Medical negligence Apply the MATERIAL CONTRIBUTION TEST where medical or other expert witnesses are unable, because of lack of scientific knowledge, to identify which of the various causes are likely to be most important FACTS: Negligent medical treatment - medical experts unable to say where the treatment was on the balance of probabilities the cause of C's cardiac arrest and brain damage Which test to use? - 1) Always begin by applying the 'but for' test, if only to explain why it does or doest work or why it produces the result that it does - where there are a number of potential causes to C's damage, each acting independently of the other, then the approach adopted in Wilsher should be followed. C must prove, on the balance of probabilities, that it was D's breach that caused the damage

2) Where the various potential causes work cumulatively together to produce the damage, the court might be prepared to deviate from the standard 'but for' test, and apply the material contribution/increase in risk approach. MULTIPLE CAUSES: APPORTIONMENT - What does this mean? - Apportionment is an approach the court might use once factual causation has been established Tortious + Non-tortious = possible to claim for 100% Tortious + Tortious...+ Tortious = Pragmatic approach - based on apportioning liability Fitzgerald v Land & Patel - FACTS: C was crossing a road at a pelican crossing when the lights were at red for pedestrians. First D driver collided with him and C was thrown from the bonnet of that car into the road, where he was run over by a car driven by the second D. Impossible to say who was more to blame 50% C; 25% D1; 25% D2 MULTIPLE CAUSES: IDENTIFIABLE LOSSES - What does this mean? - - Damage is sustained by C as a result of D's negligence - Subsequently (some time later BUT BEFORE trial) a second event occurs which causes exactly the same damage, or worsens the damage already caused - The events are NOT LINKED and there are TWO OR MORE DISTINCT LOSSES attributed to DISTINCT CAUSES - Main Q for courts - is it fair to hold D responsible for a loss to C when C's medical condition has been affected by someone or something else before the case goes to trial? Performance Cars v Abraham - MULTIPLE CAUSES: IDENTIFIABLE LOSSES FACTS: Collision between two cars as a result of negligence of other driver. Damage to C's car required a respray of the whole car. Two weeks later (not yet had respray) - second collision between C's car and another car, driven by D caused similar damage which also required a respray HELD: Requirement for respray existed before second collision - no damage was arising from second collision Baker v Willoughby - MULTIPLE CAUSES: IDENTIFIABLE LOSSES FACTS: C hit by car causing leg injury; at a later date, shot in the leg in a robbery HELD: Second cause concurrent, should not diminish damages from first - supervening tortfeasor only responsible for additional devaluation

nb: second incident also a tort Jobling v Associated Dairies Ltd - MULTIPLE CAUSES: IDENTIFIABLE LOSSES FACTS: D negligently injured C in work accident. Some time later, C suffered a further back injury, (non-tortious) arising from an illness unconnected to incident. Further injury meant C could not work HELD: D's liability cased at the point that the further injury developed. D did not have to compensate C for the 'vicissitudes of life' nb: second incident not a tort MULTIPLE CAUSES: SUMMARY - Can be proved - C gets compensation Cannot be proved - due to lack of generally accepted understanding of the science behind the damage Influence of policy - cannot formulate simple rules to determine how the courts will resolved the issues 1) Identify how the difference causes interrelate 2) Consider the different principles used by the courts for each LEGAL CAUSATION - LEGAL CAUSATION Novus Actus Interveniens - An intervening act - D is not liable for absolutely everything that follows from his breach. A line has to be drawn and certain subsequent events may break the chain of causation What are the three types of NAI? - 1) Acts of God (Natural events) 2) Acts of third parties or acts of a stranger 3) Acts of the claimant Examples of ACTS OF GOD - - Being struck by lightning - Drowning in a flood - The onset of disease Humber Oil Terminal Trustee Ltd v Sivand - ACTS OF GOD (Natural events) They will not break the chain of causation if they could have been foreseen by D and they should have taken them into account as events that were likely to happen. If the natural event was wholly unconnected with D's act (i.e. independent and unforeseeable) the chain WILL BE BROKEN

FACTS: Further expenses incurred - repair of harbour installations caused by collapse of sea bed = still recoverable. Collapse not a NAI - within realms of foreseeability Meah v McCreamer (No 1) - ACTS OF GOD (Natural events - illness) If the later illness can itself be linked to D's beach, then there will be no break in the chain FACTS: C suffered injury in a road accident which later led to him developing a personality disorder. This disorder led to C committing various criminal acts including rape. Disorder linked to original tort = not a break in the chain Knightley v Johns - ACTS OF THIRD PARTIES / A STRANGER Where the subsequent event is the act of a third party, the courts have viewed it as breaking the chain of causation if it is unforeseeable FACTS: D1 caused a road traffic accident. D2, a police officer, negligently handled traffic control following the accident - this negligence led to C, a police officer, being killed (ordered to travel down tunnel against traffic) HELD: D1 successfully argued the the negligent handling of D2 broke the chain of causation between his negligence and the death of the officer Scott v Shepherd - ACTS OF THIRD PARTIES / A STRANGER 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 (Market...) Robinson v The Post Office - ACTS OF THIRD PARTIES / A STRANGER - MEDICAL TREATMENT As a matter of policy - courts reluctant to hold that medical treatment breaks the chain of causation. When D causes injury, he takes the risk that C may not respond well to medical treatment, or that the medical treatment may not be perfect. Only medical treatment that is MANIFESTLY UNREASONABLE or PALPABLY WRONG will break the chain of causation FACTS: C was injured through D's negligence and was given an anti-titanous injection, to which he proved allergic. This did not break the chain of causation - not 'palpably wrong' (and it would not have been necessary had it not been for D's negligence in the first place) Also - apply the 'but for' test - the negligent administration of the anti-tetanus injection was not a 'but for' cause of C's injury - it would still have been administered even if the Dr had done an allergy test first - so it could not break the chain of causation

Spencer v Wincanton Holdings - ACTS OF THE CLAIMANT Acts will break the chain when they are unforeseeable but will not break the chain where they can be foreseen by D. Unforeseeable acts by C will generally be those that are also unreasonable Lord Justice Sedley: the question of where to halt liability is governed by the concept of 'fairness' FACTS: The claimant suffered injury for which he sought compensation from his employers. He later had to have his leg amputated as a consequence, but then through his own inadvertence suffered further injury to his other leg and a complete loss of mobility. McKew v Holland Hannen & Cubitts - ACTS OF CLAIMANT FACTS: C sustained an injury at work - employer's breach of duty. Strained back and hips - leg prone to give way. Attempted to climb down stairs unaided - felt leg go numb and fearing injury jumped to base of staircase (10 steps!) HELD: unreasonable in choosing to do so, a NAI - D only liable for original injury, not the injuries resulting from the incident on the stairs Wieland v Cyril Lord Carpets - ACTS OF CLAIMANT FACTS: C suffered injury from the admitted negligence of D. After attending the hospital she felt shaken and the movement of her head was constricted by a collar which had been fitted to her neck. In consequence she was unable to use her bi-focal spectacles with her usual skill and she fell while descending stairs, sustaining further injury. HELD: Eveleigh J gave an account of the meaning in law of forseeability, saying: 'In the present case I am concerned with the extent of harm suffered by the plaintiff as a result of actionable injury. In my view the injury and damage suffered because of the second fall are attributable to the original negligence of the defendant so as to attract compensation. If necessary I think the plaintiff's case can also be put against the defendant in another way. If it can be said that it is foreseeable that one injury may affect a person's ability to cope with the vicissitudes of life and thereby be a cause of another injury and if foreseeability is required, that is to say, if foreseeability is the right word in this context, foreseeability of the general nature will, in my view, suffice.' Emeh v Kensington and Chelsea Health Authority - ACTS OF CLAIMANT - failed sterilisation unlikely to be followed FACTS: D negligently performed a sterilisation operation on C who later fell pregnant and refused to have an abortion. She sued for the cost of bringing up her child. Ds argued that her refusal to have an abortion broke the chain of causation. HELD: C had not acted unreasonably and therefore, her refusal did not break the chain

McFarlane v Tayside Health Authority - ACTS OF CLAIMANT - failed sterilisation - policy reasons So-called 'wrongful life' claims such as Emeh have been severely restricted and it is unlikely that a claim resulting from the birth of a healthy baby following a failed sterilisation would succeed if it were to be brought today. Nonetheless - it was confirmed by all five law lords in this case that the decision of a mother not to undergo a termination of a pregnancy could not amount to a NAI Reeves v MPC - ACTS OF CLAIMANT - duty of care owed by D requires prevention of C taking such action - suicide victim FACTS: The Met Police were under a duty to ensure that a prisoner, who was a known suicide risk, did not take his own life while he was in their custody. As a result of failings by custody officers - prisoner killed himself HELD: No NAI - duty of care on D to prevent such occurrence Corr v IBC Vehicles Ltd - ACTS OF CLAIMANT - suicide victim Unlike Reeves - the duty of care owed by D did not relate specifically to a responsibility to prevent C's suicide FACTS: Severe head injury at work - lead to PTSD and depression. Six years after, C killed himself. HELD: foreseeability of risk of physical injury enough to establish liability - a direct and foreseeable consequence of D's tort - not unreasonable to hold the employer responsible for this dire consequence of its breach of duty (Lord Bingham) CAUSATION SUMMARY - 1) Be as precise as possible when identifying C's loss - if C has suffered more than one loss then consider factual and legal causation in relation to each loss 2) Be as precise as possible when identifying D's breach 3) Start with the 'but for' test - if you think the courts will use an alternative test, explain why (on the facts and relative policy concerns) 4) It sometimes helps to draw a timeline of events - D can only be liable for any losses after the point of their breach REMOTENESS - REMOTENESS When must remoteness be considered? - Once causation has been established; it is necessary to examine the extent of D's liability

What are the two tests for recovery? - 1) The test of DIRECTNESS - historically, C was entitled to recover for all loss that was A DIRECT RESULT OF D'S BREACH. No need for loss to be foreseeable - test was little more than one of causation (Re Polemis) 2) The test of REASONABLE FORESEEABILITY - C can only recover if they can show that the damage that they have su...