Causation

What is causation?

To prove that damage has been caused the claimant must show that D’s breach of duty caused the damage / harm.

What is the test for factual causation and how is it applied?

The 'But for' test is used - 'but for the defendant's careless act (or omission), would the clamaint have suffered the harm? (Barnett v Chelsea & Kensington Hospitals).

What are the problems with the but for test?

- It's often a starting point. As Hart argued, the courts will readily dispense with the test where it does not achieve the desired result. (Chester v Afshar)

- Test is simply impossible to apply because there are multiple possible causes. The answer only yields yes or no.

What is material contribution to harm?

It would suffice for the claimant to show that the defendant's failings had made a 'material contribution' to the harm; thus it would not be necessary to prove that the defendant had been the main or sole cause.

(Q) What is the Compensation Act 2006

Where an employer can be jointly and severally liable for personal injuries caused by asbestos exposure where he materially increased the harm. The claimant must still show that the increase in risk caused by the defendant was significant, ie material when measured against other potential causes (Williams v University of Birmingham).

What is lost chance?

Certain courts attempted to get around the evidential difficulties outlined above by determining liability on the basis of the 'lost chance' of avoiding the illness caused by the negligence. Although,in recent case the court of appeal argued that such an approach should be available in certain circumstances - (Wright v Cambridge Medical Group)

What are intervening acts?

Where the defendant may have set in motion the chain of events which exposed the claimant to these additional harms. The more reckless and outlandish the third party intervention the more likely it is that it will be deemed to have 'broken the chain of causation'.

Case examples of intervening acts...

Knightley v Johns

- Top end of the scale a criminal intervention is likely to be regarded as novus actus unless the criminal intervention is the very enventuality which the defendant had undertaken to prevent (Stansbie v Troman)

- The claimant's very own actions may amount to novus actus and in this case there can be an overlap with contributory neglgience and volenti (Reeves v MPC)

What is the test for forseeability?

The test for legal causation is one of foreseeability to the ordinary person. If the type of damage suffered by C is not foreseeable to the ordinary person because of D’s breach it is ‘too remote’ and C cannot claim (The Wagon Mound)

Harm will still be forseeable if...

1) The harm was forseeable but happened in an unforseeable way (Hughes v Lord Advocate).

2) If interference was forseeable then it will not necessarily break the chain of causation (Scott v Shephard).

3) Thin Skull Rule - You must take your victim as you find them regardless of any pre-existing conditions that may render the consequences of the negligent act far more serious than they would have been in the ordinary course of events (Smith v Leech Brain & Co).

What are impecuniosity cases?

This is the financial equivilant of the thin skull rule and relates to cases in which the claimant's loss has been exacerbated by his financial circumstances (Lagden v O'Connor)