Causation

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Basic Principles

  • Claimant must show on a balance of probabilities (civil standard of proof) that the defendant’s act or omission was in fact a cause of the claimant’s harm.
  • “But for the defendant’s negligence (or other tort) would the claimant have been injured?” (Standard ‘but for’ test – looking to see if the defendant’s wrong made a difference)
  • If the answer is “no”, the negligence (or other tort) was a cause of the harm.
  • Safety belts were provided but withdrawn as the workmen refused to wear them. Failure to provide them was not the cause of death. Even if they were provided, the deceased wouldn’t have worn them. Absence of safety belts made no difference to the outcome. Now it is necessary that employers take sufficient steps to use safety equipment. (McWilliams v Sir William Arrol)
  • no liability, the breach was not a cause of death from arsenic poisoning. By the time the patient was at the hospital, it was too late for the doctor to prevent death. Failure to arrive promptly made no difference to the outcome. (Barnett v Chelsea and Kensington)
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Basic Principles 2

  • Claimant suffered brain damage. Negligence was not the cause of patient’s death, as reaction was 9 days later. Reaction would still have happened. (Robinson v The Post Office)
  • L Neuberger – Claimant might have been seen by different doctors who were competent. There is a factual presumption that Doctors take reasonable care. There is a special rule when ‘but for’ requires evidence of how the defendant/3rd party would have behaved. (Wright v Cambridge Medical Group)
  • House of Lords – have to ask 2 questions. 1) What would the doctor probably actually have done? If they would have intubated – causal link is established, if they wouldn’t have intubated then 2 applies. 2) Whether failure to intubate was breach of duty, if yes then causal link. Doctor can’t rely on a hypothetical negligence. No causal link established as she wouldn’t have intubated. (Bolitho v City and Hackney)
  • Bolitho rule not just for medical negligence. Robbins has similar facts to Bolitho. Tree roots were spreading and causing damage. LBC aware of foreseeable risk damaging claimant’s property that it planned on carrying out a 70% pruning routine. It would have been reasonable to carry out a less severe regime like 25%. Only 70% would have been sufficient. Even though it is reasonable to accept 25%, the LBC were held to be liable. (Robbins v Bexley)
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What must be proved?

It is not necessary for C to establish that D’s conduct was the sole cause of his or her damage.  Establishing that it has made a “material contribution” to the damage is sufficient.

“combining causes” – cause not sufficient to cause damage in itself, but combined with another it becomes sufficient

Defendant’s negligence by itself was not sufficient to cause harm. The leak could be dealt with minus the explosion. Combined with the candle the damage was caused. (Burrows v March Gas Co)

The question to the House of Lords was the onus of proof. High Court and Court of Appeal = in these cases, dust diseases, once you show there was a breach of the statutory duty and a disease ensued, the onus is shifted to D to disprove the causal connection. Was it correct? House of Lords – no, onus always lies on C as regards causation. (Bonnington Castings Ltd. v Wardlaw)

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Doubling the risk

Per Lord Phillips in Sienkiewicz v Greif (UK) Ltd

- The reasoning goes as follows. If statistical evidence indicates that the intervention of a wrongdoer more than doubled the risk that the victim would suffer the injury, then it follows that it is more likely than not that the wrongdoer caused the injury.”

  • C could win on causation by showing that the exposure made a material contribution even though they couldn’t show that they doubled the risk. Cnacer developed in a different way to the nerumeocasis. Caragenic is random and not possible to predict if it forms cancer. Exposure to cartagenic increases risk of developing cancer, but doesn’t increase severity. Various factors did operative cumulatively. Applying the test, the lung cancer cases ensued. Claims for other diseases failed. (Jones v SoS for Energy and Climate Change)
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3 Situations where the normal requirements are rel

  • Court of Appeal accepted that she had not met the ‘but for’ test but agreed with C’s argument. Sufficient lack of care made a material contribution to her weakness and so she could rely on Bonnington. (Bailey v Ministry of Defence)
  • Judge –assurances were given that the ambulance was on it’s way, the non- arrival increased the trauma. Applied Bailey – couldn’t find that PTSD would have been caused by 7.33pm and rejected D’s evidence, delay made material contribution to PTSD. Accepted evidence of C’s expert witness, whole event which is indivisible. Then there was enough evidence to satisfy the but for test. Inconsistency. Accepted now by lawyers for both the claimant and defendant. (Leigh v London Ambulance Service NHS Trust)
  • Judge – D is liable, lower amount of damages as D was only employers for part of the time. There was a 25% reduction rather than the exact time of employment. Upheld by the Court of Appeal ‘where a claimant suffered injury only to the extend D contributed to the disability’ 50% would have been correct then. (Holtby v Brigham & Cowan)
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3 Situations where the normal requirements are rel

  • HoL overturned the decision, saying that fault should be allocated according toe the defendant’s relative degree of contribution to the risk, and each defendant should only be liable for that contribution. Defendants should not be liable for the contributions of other parties. Contribution should probably be measured by the duration and intensity of the exposure involved. (Barker v Corus)
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Materially increasing the risk of harm

  • There was no way of knowing whether providing a shower would have prevented him from developing the skin condition. HoL decided that if the breach had materially increased the risk, that was sufficient to establish causation and allow the plaintiffs to recover compensation for 100% of their losses. (McGhee v National Coal Board)
  • the claimant’s mother had died of mesothelioma. She had been negligently exposed to asbestos dusty by her employer, but in addition, all the inhabitants of her town had been exposed to a lower level of asbestos dust, which was not due to negligence. The employer argued that its negligence would only have made a ‘material contribution’ to the claimant’s mother’s illness if it had at least doubled the risk caused by the background exposure. The court found that this was not what Parilament had intended.(Sienkiewicz v Greif)
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But proof that the defendant negligently caused th

  • CA reversed the decision and held damages could not be divided up to reflect the relative likelihood of different causes. The court must decide one way or the other whether or not the breach materially contributed to the damage, on a balance of probablilites, and must then take a corresponding award on an all or nothing basis. (Hotson v East Berkshire Area Health Authority)
  • No award of damages in respect of negligent delay in diagnosis of tumour that was claimed to have reduced chances of survival for more than ten years from 42% to 25%.  (Gregg v Scott)
  • The majority in Greg took a different approach used in economic loss cases. The courts were prepared to hold that the duty of care extends to cover loss of chance of acquiring an economic benefit. Damages for negative reference preventing C from getting a job will reflect the chance of getting that job even if it is 50/50 or less. (Wright v Cambridge Medical Group)
  • There is liability if there is a chance of getting the job.  (Spring v Guardian Assurance)
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Concurrent Sufficient Causes

  • Claimant’s property is destroyed by a fire, which was a combination of 2 other fires. 1 is set by D’s negligence, the other was from natural causes. Reflected in the fact that the trial is by jury. Was D’s tort a substantial fact in destroying the property? It is a question of fact. It gives the Claimant a windfall because the property could have been destroyed by either fire. Could apply the ‘but for’ test? Allowing C to win is an exception to the teset.If there are 2 causes of harm, both sufficient to cause the whole harm in itself and both tortious. (Anderson v Minneapolis)
  • Each motorcycle alone was sufficient to frighten the horse. They were not acting in concert or encouraging eachother. If one applies the ‘but for’ test you come up with an absurd solution that nobody is liable. (Corey v Havener)
  • Different defendant’s were liable for the 2 problems. Contractuous and tortious issues. Each defendant was liable and don’t apply the ‘but for’ test. (Greenwich Millenium Village Ltd v Essex Services Group plc)
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Successive sufficient causes

  • C was knocked down by D’s car and suffered injury to the leg and an ongoing disability reducing his earning capacity. 3 years later, a further tortious incident occurred. C was working in a scrap metal yard, when robbers shot him in the same leg. The leg had to be amputated on so there was a further loss of earning capacity.
  • hold D1 liable for loss arising from the original injury and hold D2 liable for additional damage.
  • After the 1st accident, C was in pain from the damaged leg, so damages. Amputation would end suffering so couldn’t continue to claim for ongoing damages. (Baker v Willoughby)
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Threatened Harms

  • threatened harms – C is threatened by 2 harms, 1 of which eventuates
  • D is clearly liable, negligently caused C’s death, but in assessing damages, took account of C’s life expectancy, and the fact he was about to fall to a non-tortious death, which reduced damages to nil. (Dillon v Twin State Gas Co.)
  • a druggist supplied tartare encinc instead of bismouth for treating the flu of an already severely sick patient. Nil damages awarded. The tartare encini did not accelerate the claimant’s imminent death. (Kerry v England)
  • You need to take account of harm from the non-tortious event (Smith v Cawdle Fen Commissioners)
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Separate causes where harm is divisible

  • If harm is indivisible and more than 1 person is liable, the law is clear, each person is responsible and liable for the whole loss.
  • The claijmant had distinct psychiatric illnesses – PTSD, severe depression, a phobia of black people and a personality change. Each condition was from different elements of the story. There was a phobia to the whole assault, Neither defendant caused the overall condition and should be divisable. Courts had to decide. Employers pay ¼ and the hospital ¾. There was criticisms by commentators. The hospital accepted all responsibility for physical injury. (Rahman v Arearose)

  • (responsibility for development of asbestosis was divided between successive employers on a “time-exposure” basis) each employer was only liable during the course of that employment. (Holtby v Brigham & Cowan)
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Remoteness of Damage

  • Remoteness is the law setting limits to the liability of wrongful acts. It doesn’t accept that D is liable for all factual consequences of their tort, as it would impose unfair burdens. In most situations rules comes down to 1) D not liable for damage that’s not reasonable foreseeable  2) D not liable even for a reasonably foreseeable damage attributed to an intervening cause   3) D not liable where contribution gives rise to a coincidence

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Liability for direct consequences

  • Intended consequences are never too remote, tend to arise in torts requiring deliberate misconduct ie tort of deceit. In modern law 2 principleed tests are used for remoteness. 1) Directness 2) Reasonable foreseeability of type of damages.
  • The arbitrator’s made express finding that the spark could not be reasonable anticipated, some damage could have been, structural damage to the ship. Court of Appeal – charterers were liable, foreseeability was relevant to the existence of duty of care and it’s breach, not relevant to remoteness. Academics think it is unfair to D for unforeseeable damage. AL Goodhead – 1) distinction between direct and indirect is hard to draw. 2) infavourable on D. (Re Polemis)
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Liability for reasonably foreseeable kinds of dama

  • Judge – welding operations generated molten metal, probably fell on waste in water operating as a wick, heating up and everything was consumed by fire.  Included that D had been careless, oil foreseeably spread, unforceseeable oil would catch fire, it was foreseeable the oil would cause some injury to the wharf by fouling. Privy Council – fire damage was too remote, the fire was unforeseeable, different damage from fouling. Correct test is reasonably foreseeability.(The Wagon Mound No.1)
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Qualifications of the "reasonable foreseeability"

(i)       the pecuniary extent of damage need not be foreseeable

(ii)      the precise manner in which the harm is caused need not be foreseeable

The post office argued that the explosion was unforeseeable. HoL held that this did not matterl it was foreseeable that people might suffer burns, and that being the case, it did not matter if the burns came about by an unforeseeable route. The relevant ‘type’ of damage was the burn and not the explosion. (Hughes v Lord Advocate)

 Addressed the issue of the forseeability of injury in a case involving a boy who was injured after he had jacked up an old, rotting boat on the defendant’s land, intending to repair the boat. The lords concluded that the injury was recoverable because the injury was caused in a foreseeable fashion. (Jolley v Sutton LBC)

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The 'think skull' rule

  • The woman became seriously ill from the shock and went into labour. Her baby was born prematurely and had learning diffuclties. The defendant argued that the pregnancy was unforeseeable and that the injury to the woman and her baby were too remote. However, the court disagreed and awarded her damages for her illness and the premature birth. (Dulieu v White & Sons)
  • An employee needed a tetanus vaccination after an injury at work, but turned out to be allergic to the vaccine. In both cases, the employees were able to recover full damages even though their unusually sensitive conditions made the injuries much more extensive that would normally be the case. (Robinson v  The Post Office)

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Intervening Causes

An employee suffered post-traumatic stress disorder following an accident at work. He eventually committeed suicide by jumping from a building. CA found that, since physical injury had been foreseeable, psychological harm was foreseeable. (Corr v IBC Vehicles Ltd)

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intervening act of a third party: reasonable acts

Person A threw a lighted object into a marketplace, causing it to land on the stall of person B, who threw it away to prevent his stall from burning down, causing it to land on the stall of person C, who also threw it away to prevent his stall from burning down, causing the lighted object to strike a passer-by in the face. Grey CJ held that a battery existed, since the chain of causation was direct and followed on from the act of the defendant. (Scott v Shepherd)

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intervening act of a third party: unreasonable act

  • A driver negligently caused an accident just outside the exit of a tunnel. The police inspector in charge of the accident scene ordered two other offenders to ride back through the tunnel on motorbikes and close the tunnel to oncoming traffic. Towards the other end of the tunnel, one of the police officers collided with an oncoming driver (who was not driving negligently) and was injured. He sued both the first driver and the inspector. The inspector conceded that he had been negligent in ordering the motocyclists to ride into oncoming traffic, but the CA had to decide whether the driver was also liable for causing the accident that led the inspector to give that order. The driver argued that novus actus interveniens applied. (Knightley v Johns)

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Intervening acts of a third party: deliberate wron

  • The contractual relationship between the owner and decorator implied a duty to take care of the premises – to anticipate and prevent actions like theft. (Stansbie v Troman)
  • Home office did owe a duty to protect the claimant from harm due to a special relationship between prison officers and trainees. (Home Office v Dorset Yacht Co.)
  • The cinema was left unguarded. Duty of care could be owed by land owner to prevent land becoming a source of danger to neighbours. The risk of fire was not sufficiently established for there to be negligence on part of the defendant. (Smith v Littlewoods Organisation Ltd)
  • Vandals let off fire extinguishers in a church. Intervention no more than a possibility and it woulnd’t be fair to hold Chubb liable. (Chubb Fire v Vicar of Spalding)
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intervening act of C

  • Where the claimant negligently contributes to own harm, usually apportionate. In some circumstances, the court may regard the actions as so overwhelming and apply the same reasoning as if they were a 3rd party. Voluntary – doesn’t break.
  • the court held it did not break the chain, in agony of the moment, it was the right thing to do. (Jones v Boyce)
  • Acts of a child don’t break the chain (Yachuk v Oliver Blais Co)
  • own conduct in descending the stairs unaided amounted to a new intervening cause. Act of jumping was not unreasonable. If the conduct was simply unreasonable, why not reduce the damages for contributory negligence? It is possible to say it was a reckless decision. Just a harsh decision against the claimant. Even a deliberate action will not break the chain if under a duty to prevent that wrongful conduct. (McKew v Holland, Hannen & Cubitts)
  • Police were under a duty of care to prevent the prisoner who is a suicide risk from committing suicide. (Reeves v Commissioner of Police for the Metropolis)
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Coincidencde

  • sometimes an example of a supervening cause.
  • Principle – defendant is not liable where their tort places the claimant at a particular time/place where they are put at a wholly unconnected risk. To be liable, the defendant’s wrong must make it more likely that the risky event would occur.
  • for difference between the over-value and the true value at the time. Not liable for additional damages in fall in property values. (South Australia Asset Management Corp. v York Montague)
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