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Causation and Remoteness of Damage - Coggle Diagram
Causation and Remoteness of Damage
Two stage test:
1) was the defendants action/inaction a necessary pre-condition for the harm to occur and if so"
2) is it therefore the cause of the harm?
The But For Test...
‘But for the defendant’s carelessness (breach), would the claimant have escaped harm?’ If the answer is ‘yes’, the cause in fact is identified: no harm would have come to the claimant without the defendant’s carelessness.
Barnett v Chelsea and Kensington Hospital Management Committee [1969].
A doctor failed to properly examine a man who presented himself at the hospital’s emergency department. It transpired that the man was suffering from arsenic poisoning from which he subsequently died.
It could not be said that ‘but for’ the doctor’s negligence the man would have survived.
The Problems with the test
Multiple Potential Causes
Wilsher v Essex Area Health Authority [1988].
Too much oxygen in the blood is a known possible cause of RLF. The defence contended that there were several other ‘innocent’ potential causes, including his premature birth (RLF is a known risk to premature babies). In total, there were five competing causes, each equally probable.
Material Contribution to Harm
Bonnington Castings Ltd v Wardlaw [1956]
where a disease is contracted because of cumulative exposure to toxins (divisible), it need only be proved that the negligent part of that exposure would likely materially contribute to the condition, and not that the negligent exposure was the probable cause of the condition
need only be proved that the negligent part of the exposure would likely contribute to the condition.
Divisible or Indivisible Harm? - based on the idea that in some conditions it s known that a greater exposure to the harmful agent in question will likely worsen the condition. (divisible) In other this cannot be shown (Indivisible)
Material Increase in Risk
McGhee v National Coal Board 1973
the fact that the risk of the claimant developing the condition was materially increased was enough to establish causation.
material risk was equivillent to material contribution.
Unjust Results
Fairchild v Glenhaven Funeral Services 2002
the problem was that the employee had been exposed by a series of negligent employers, not just one
The difficulty was that the claimants could not show when that causative exposure occurred.
In finding in Fairchild that each defendant had materially increased the risk of the claimant contracting mesothelioma, the House of Lords did not overrule Wilsher, which seemed to potentially stand in the way of this interpretation. Instead, they distinguished it, holding that Wilsher had been correctly decided on its facts.22 The law lords stressed that Fairchild was an exception to normal causation principles
Barker v Corus 2006
HOL departed from the idea that all employers that had contributed by their negligence should be jointly liable.
instead, they stated that the compensation should be based of the period of time that the claimant worked for the employer.
Unjust Results: Failure to inform
Chester Afshar 2005 - The trial judge found that the possibility that the claimant might have consented to surgery in the future was not sufficient to break the causal link between the defendant’s failure to warn and the damage sustained by the claimant. The Court of Appeal agreed.
Remoteness of Damage
Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co (The Wagon Mound) (No 1) [1961] AC 388 (PC)
The way the remoteness test is formulated means that only the type of damage must be foreseeable, not the extent. So, if some physical damage is a foreseeable consequence of the breach, the amount of physical damage suffered need not be.
the 'egg shell skull rule'
a rule that states that a defendant will be liable for the full extent of the harm they caused, even if the person has suffered more har, than expected, due to an existing weakness or frailty.
the defendant must take the victim as you find them.
Smith v Leech Brain & Co Ltd [1962]
In Lagden v O’Connor [2003] it was confirmed that the ‘egg shell skull’ principle also applies to economic harms
Intervening Acts
Even if the defendant ‘causes’ an accident by starting a sequence or chain of events, a later event might be held to be the ‘real’ cause of the eventuating harm.
Later Negligent Acts
Home Office v Dorset Yacht Co Ltd [1970], who said that a subsequent negligent act of a third party must ‘have been something very likely to happen if it is not to be regarded as a novus actus interveniens breaking the chain of causation. I do not think a mere foreseeable possibility is or should be sufficient’
The Civil Liability (Contribution) Act 1978 means that the court can apportion damages between the parties responsible (or leave them to do this for themselves).
Acts of the Claimant