Damage: Causation

[Flash Card 1 of 4]

Factual causation: the 'but for' test

• factual causation: chain of causation / determined by but for test
• arsenic / but for D's breach would the harm to C have occurred? yes: D not factually liable / no: factual causation satisfied (Barnett v Chelsea & Kensington Hospital [1969])
• safety harness / V would not have worn / but for D breach V would have still died (Mc Williams (Cummings) v Arrol [1962])

Factual causation: proof

• C must prove: on the balance of probabilities harm caused by D's breach
• tree injuries / 25% chance P's condition improved by correct treatment / all or nothing approach:require more than 50% chance or not satisfy balance of probabilities (Hotson v East Berkshire HA [1987])

Factual causation: clinical negligence cases

• blind / 5 possible alternative causes / no factual causation: only 20% (Wilsher v Essex HA [1988])
• dr testified would not have carried out procedure even if attended & backed by medical professionals / D's negligence an omission so hypothetical but for test applied (Bolitho v City & Hackney HA [1998])
• loss of chance: lump/ 45% chance of recovery if not been misdiagnosed / all or nothing approach approved (Gregg v Scott [2005])
• courts cautious finding against medical professionals / policy issues: may affect willingness to treat / try pioneering new procedures / cost of medical care increase due to higher insurance

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Damage: Causation

[Flash Card 2 of 4]

Factual causation: multiple causes

• material contribution approach: determine causation where multiple causes contributed to C's harm
• dust swing grinders & hammer / Lord Reid: .. [P] must make it appear at least that on a balance of probabilities the breach of duty caused or materially contributed to his injury... (Bonnington Castings v Wardlaw [1956])
• Waller LJ: .. contribution of the negligent cause was more than negligible, the 'but for' test is modified, and the claimant will succeed.. (Bailey v MOD [2008])
• dermatitis from dust / House of Lords: D's failure to provide onsite washing facilities material contribution to risk of injury & sufficient to prove factual causation (McGhee v National Coal Board [1973])
• modified but for test / C must establish D's negligence materially contributed: causing harm (Bonnington Castingsv Wardlaw [1956]) or risk of harm (McGhee v National Coal Board [1973])

Divisible injury

• divisible injury: condition made worse by a number of factors / different D's negligence contributing
• asbestos / cumulative condition / damages apportioned between D & other employers (tortfeasors) according to time C worked for each (Holtby v Brigham & Cowan [2000])

Indivisible injury

• indivisible injury: single injury / caused by more than one D's negligence / eg road traffic accident
• Civil Liability (Contribution) Act 1978 / S1(1): Ds jointly & severally liable for full damages / S2(1): courts can apportion liability between Ds according to their share of responsibility

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Damage: Causation

[Flash Card 3 of 4]

Factual causation: recent developments

Fairchild v Glenhaven Funeral Services [2003]

• facts: Cs developed mesothelioma / caused by asbestos exposure / working for several employers / medical evidence not show which liable
• held: CoA: lack of medical certainty means no factual causation / HoL: approved McGhee v National Coal Board [1973] / Ds materially contributed to risk of Cs contracting mesothelioma / indivisible injury / Ds jointly & severally liable
• criticised: weakening test / employers & insurers liable large claims / however provides full damages for Cs seriously harmed

Barker v Corus [2006]

• facts: Cs contracted mesothelioma / working for several employers / D only one still trading
• held: HoL (majority): liability for mesothelioma for risk of harm / therefore D's liability should be proportionate (to extent to which they contributed to risk: time they employed Cs) / risk divisible
• criticised: limiting Cs ability to receive damages / Compensation Act 2006 (effectively reversed decision for Cs suffering mesothelioma)

Factual causation: multiple injuries

• if C already suffered harm / subsequent D only liable to extent he makes C's harm worse
• re-spray car (Performance Cars v Abraham [1962]) / personal injuries (Rahman v Arearose [2001])

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Damage: Causation

[Flash Card 4 of 4]

Legal causation: intervening acts

• chain of causation may be broken by an intervening event: extrinsic events (nova causa interveniens) / independent act of someone other than D (novus actus interveniens)

Third party acts

• chain unbroken: if D is under legal duty to prevent that act
• thief / decorator had duty to lock house (Stansbie v Troman [1948])
• chain broken: if unforeseeable consequence of D's own negligence
• negligent driver blocked one way tunnel / foreseeable police attend but police gross negligence was not (Knightley v Johns [1982])
• negligent act of third party: more likely to break chain / but not definitely
• Stephenson LJ: .. mistakes and mischances are to be expected... / (Rouse v Squires [1973])
• chain not broken: instinctive intervention / if foreseeable reaction
• lighted squib / reacting D's dangerous act (Scott v Shepherd (1773))

Claimant's own acts

• chain broken: if C acts unreasonably
• leg / steep stairs / unreasonable risk (McKew v Holland & Hannen & Cubitts [1969])
• not broken: if C's carelessness not unreasonable / may amount to contributory negligence
• prosthesis accident / damages lowered due to contributory negligence (Spencer v Wincanton Holdings [2009] )

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