Causation and Remoteness

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  • Causation and Remoteness
    • Factual Causation is "understood as the man on the street" would understand it. Lord Wright in Yorkshire Dale Steamship
    • "But For" Test
      • Barnett v Chelsea Hospital [1969] Where a patient with an incurable disease was sent away from a hospital and died. He then could not sue the Doctor for not treating him.
      • McWilliams  [1962] Where a man who never used a harness before when issued with one could not sue his employers for not providing him with one when he fell from a scaffold.
    • Multiple Cause Cases
      • Indeterminate Cause: D1 + D2 held "jointly and severalty liable"  : US Case of Summers v Tice [1948]
      • Cumulative Cause: D1 + D2 cause equal amounts of damage and are held "J and S liable". Fitzgerald v Lane [1989]
    • Consecutive Cases:
      • D1 still liable if D2 only causes same type of damage - Performance Cars v Abraham  [1962]
      • D1 not liable if his harm is overtaken by the further damage of D2 - Gray v Thames Trains Ltd [2009[
    • Proof of Causation - 3 Methods
      • 2. "Vindication of Rights" where if D was wrong and caused harm, even if not his fault he will still be liable
        • Informed consent case where an operation caused harm even though not done negligently - Chester v Ashfar [2004]
      • 1. "All or Nothing" whereby if C can prove it is 51% likely to be D's fault he gets full damages.
        • Wilsher v Essex HA [1988]
      • 3. "Material Increase in Risk/Material Contribution to harm"
        • McGhee v National Coal Board [1973]
          • Lord Salmon: I would suggest that when it is proved, on a balance of probabilities, that an employer has been negligent and that his negligence has materially increased the risk of his employee contracting an industrial disease, then he is liable in damages to that employee if he contracts the disease.
        • Lord Salmon: I would suggest that when it is proved, on a balance of probabilities, that an employer has been negligent and that his negligence has materially increased the risk of his employee contracting an industrial disease, then he is liable in damages to that employee if he contracts the disease.
    • Novus Actus Interveniens
      • Has the action of the second defendant broken the chain of causation>
      • 2 Types
        • 1. TP actions
          • Instinctive intervention is not NAI - Scott v Shepard [1773] "firework thrower"
          • 2. Negligent Intervention must be powerful enough to overrride A's - Kngihlty v Johns [1981]
          • Medical care only overrides if performed with a grave lack of skill and care - Hogan v Bentick Ltd  [1949]
        • 2. IA's of the C - if C acts unreasonable, it will break the chain.
          • see the stair case: Mckew v Holland Ltd [1969] and Wieland v Cyril Lord [1969]
            • Wieland could still claim because she had asked for assitance and so was not acting unreasonably
    • Remoteness of Damage
      • Could the Defendant have reasonably foreseen the damage? - The Wagon Mound No 1. [1965]
        • Only have to foresee the type of damage, not the way it is caused or its extent - Hughes v Lord Advocate [1963]
        • Only have to foresee the type of damage, not the way it is caused or its extent - Hughes v Lord Advocate [1963]
          • Smith v Leech Brain [1962]

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