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CAUSATION - Coggle Diagram
CAUSATION
- causation in law/legal causation
- breaking the chain of causation
- if there's break in chain of causation, the original tortfeasor will not be liable for events that happened after the break. the events causing such a break is know as novus actus interveniens - a "new intervening act"
- there's 3 types of intervening acts:
(1) an intervening act of the claimant or victim (e.g. claimant not following medical instructions)
(2) an intervening act of nature (e.g. storm damage)
(3) an intervening act of a third party
- Sayers v Harlow UDC (1958)
- the intervening act was that of the claimant herself. she was locked in public toilet cubicle because there was no handle on the inside of the door. she tried to climb out by standing on the toilet roll holder this was unsuccessful. as she was climbing the roll holder spun around, causing her to fall. she was injured & brought an action against the council for negligence in failing to maintain the facilities. her claim was successful. court held that claimant's act in trying to escape wasn't sufficiently negligent to break the chain of causation, so council was liable fore her injury. however her damages were reduced by 25% under principle of contributory negligence.
- Mc Kew v Holland & Hannen & Cubitts (Scotland) Ltd (1996)
- D negligently injured the claimant's leg, as result of injury the leg sometimes collapsed. while claimant was descending a steep flight of stairs his leg gave way & he fell and was injured. HoL held that in the circumstances the claimant's act of going down steep steps with no handrail was negligent & therefore broke chain of causation. D was therefore not liable of any other injury
- this case shows that claimant who has already suffered some harm must take care not to worsen his own situation; if he negligently does so, he may receive no or reduced damages.
- if D is liable under "but for" test, court will consider legal causation. basic rule is that damages will be given only if the type or kind of injury is a foreseeable result of the breach of duty. if the type or kind of injury is not foreseeable, it will be too remote from the breach of duty and damages won't be rewarded.
Remoteness of Damage
- The damage must not be too remote from the negligence of the defendant. The rule comes from an Australian case decided by the Privy Council: Overseas Tankship (UK) Ltd v Morts Dock & Engineering Co known as ` The Wagon Mound ‘(1961)
- the defendants’ employees negligently spilt oil in Sydney harbour. The oil was driven by the wind and tide to the claimants’ wharf, where there was no danger of the oil catching fire, so they continued welding. Two days later the oil caught fire because of sparks from the welding. The fire spread to the claimant’s wharf and burnt it down. It was decided that, although damage done to the wharf by the oil spill was reasonable foreseeable. The fire damaged the wharf was not. The Privy Council held that the fire was not reasonably foreseeable and so the defendants were not liable. This type of damage was too remote from the original negligent act of spilling the oil. The test for remoteness comes from this case- the injury or damage must be reasonably foreseeable.
- causation is measured in 2 ways
- the but for test - that D's negligent act did in fact cause the claimant's damage. CAUSATION IN FACT
- by establishing the damage is still sufficiently proximate in law to hold D liable to compensate V. CAUSATION IN LAW (remoteness of damage)
- the 'but for' test - once the claimant has established the existence of a duty of care & has proved that it has been breached (by falling below the appropriate standard) then he still has to prove D's act caused the damage
- the 'but for' test - in many cases negligence of D is obvious & facts are straightforward. the negligence was either the cause or not the cause
But for the defendants actions would the claimant have suffered?
- Cork v Kirby MacLean (1952)
- "if the damage wouldn't have happened but for a particular fault, that fault is cause of the damage; if it would have happened just the same, fault or no fault, the fault is not the cause of the damage"
- Barnett v Chelsea Hospital Management Committee (1969) QBD
- D drank tea containing arsenic. they went to casualty to see a doctor who refused to examine him & sent him home to see his own doctor. he died of arsenic poisoning 5 hours later. His family sued the Hospital. was the doctor negligent?
- was held the hospital management was not liable to his widow despite doctors negligence. there's no cure for arsenic poisoning & so doctor's negligence did not cause death: Mr Barnett would've died anyways.
- Types of injury to be foreseeable
- D will also be liable if the type of injury was reasonable foreseeable, even though the precise way in which it happened was not. Two key cases which illustrate this point are Hughes v Lord Advocate (1963) and Bradford v Robinson Rentals (1967).
- Hughes v Lord advocate (1963)
- a Post Office workman left a manhole unattended, covered only with a tent and with paraffin lamps by the hole. Two young boys claimed into the whole. As the claimed out the boys knocked one of the paraffin lamps into the hole. This caused an explosion which badly burnt the claimant. The defendant denied liability, claiming that the injuries were too remote.
The court decided that the boy was able to claim for his injuries as it was foreseeable that a child might explore the site, break a lamp and be burnt. The type of injury was foreseeable, even if the explosion itself was not foreseeable.
- Bradford v Robinson Rentals (1967)
- the claimant was required by his employer to take an old van from Exeter to Bedford, collect a new van and drive back to Exeter. It was extremely cold and neither van had a heater. The windscreen kept freezing over he had to drive the whole return journey with the window open. The claimant suffered frostbite and was unable to work. The court decided that the employers were liable for his injuries even though the injury he suffered was very unusual. Some injury from the cold was reasonably foreseeable.
- examples of types of injury not foreseeable
- Doughty v Turner Asbestos (1964)
- claimant was injured when an asbestos lid was knocked into a vat of molten metal. shortly after, a chemical reaction caused and explosion of the metal which burnt the claimant. scientific knowledge at the time couldn't have predicted the explosion & so the burn injuries weren't reasonably foreseeable. it could be foreseen that nocking something into the molten mental could cause a splash but the claimant's injury was caused by something different
- Res ipsa loquitur - the thing speaks for itself
- The burden of proving the negligence is on the claimant, on the balance of probabilities. In some situations it is difficult for the claimant to know exactly what has happened, even though it seems obvious that the defendant must have been negligent. An example of this is where, after an operation in hospital, a patient is found to have a swab left inside him. The patient does not know exactly how the duty of care was breached as he would have been unconscious throughout the operation. He only knows after the operation there was a swab inside him.
- Key term Res ipsa loquitur - the thing speaks for itself. the burden of proof moves from the claimant to the defendant.
- in such a situation the rule of res ipsa loquitur can be used. this means 'the thing speaks for itself. the claimant has to show the defendant was in control of the situation which caused the injury; the accident would not have unless someone was negligent; and there's no other explanation for the injury.
- burden is on the claimant to prove the casual link on the balance of probabilities
- may be difficult to do especially if there's multiple causes or if the damage is of an unusual type
- claimant must show a direct link between the defendant's act or omission and the damage suffered.
- take your victim as you find them
- this rule = same in tort as it does in crime - you must take your victim as you find him. if the type of injury or damage is reasonably Foreseeable, but it is much more serious because the claimant has a pre-existing condition, then D is liable for all the subsequent consequences. in negligence this is know as the 'eggshell skull' rule
- Smith v Leech Brian [1962]
- the claimant’s husband sustained a burn on his lip from molten metal when he was at work, caused by negligence of the defendant, his employer. The burn became cancerous and he died as a result. It was shown that he had a predisposition to cancer, The court decided the burn was reasonable foreseeable, the defendant was liable for his death since he had to take his victim as he finds him, `eggshell rule’
- in Robinson v Post Office (1974)
- claimant cut himself at work through negligence of D, his employer. he was given an anti-tetanus injection to which he was allergic & suffered brain damage as a result. CoA held that D was liable for the brain damage as well as the original injury. court reason that the anti-tetanus injection was a foreseeable consequence of the injury, and so D must take v as he found him.