Tort Causation Unit 2 Chpt 3

But for Test Factual Causation

‘As a matter of fact, was the defendants negligence a cause of the claimants damage?’ Barnett v Chelsea and Kensington Hospital

All or nothing test Factual Causation

Claimant must show on a balance of probabilities that harm suffered was caused by the defendant- Hotson v East Berkshire Area Health Authority

Application of balance of probabilities case where there is one possible cause of harm Factual Causation

Wilsher v Essex Area Health Authority

Material contribution test case Factual Causation

Bonnington Castings v Wardlaw

Material increase in risk case Factual Causation

McGhee v National Coal Board

Limit to material increase in risk

Sienkiewicz v Greif- limited to cases of scientific uncertainty

If material contribution test shows divisible injury, which case?

Holtby v Bringham

in Fairchild v Glenhaven Funeral Services Ltd, under which act was liability appointed

Civil Liability Contribution Act 1978

how did the position change in Barker v Corus UK

Specifically in relation to mesothelioma, risk now favours claimants, under The Compensation Act 2006

Which act are indivisible injuries liable under?

Civil Liability (Contribution) Act

Does apportionment affect liability?

No- where 2 or more claimants are liable in the same damage, claimant entitled to recover full amount of loss from any/all

What case is used where claimant is injured more than once?-factual causation

Performance cars v Abraham - defendant not liable, only liable if make damage worse

Breaking chain of causation- Instinctive intervention of 3rd party 🎆

instinctive actions of 3rd party do not break chain of causation- Scott v Shepherd

Breaking chain of causation- negligent action of 3rd party (tunnel)

chain is likely to be broken by negligent action of a 3rd party which the defendant could not have reasonably foreseen as a consequence of their own negligence

Knightly v Johns -intervening act broke chain of causation

How is Knightley v Johns (tunnel) different from Rouse v Squires

both original and intervening act liable in Rouse

Breaking chain of causation- 3rd party reckless/intentional act

It is more likely that the conduct of a third party that is reckless or intentional rather than just negligent will be treated as an intervening act that breaks the chain of causation.- Lamb v Camden, original defendant not liable

How is Stansbie v Troman different to Lamb v Camden

Stansbie the reckless/intentional intervening act did not break the chain of causation, original defendant was liable

Intervening act of claimant breaking own chain of causation

McKew v Holland & Hannen & Cubitts

Example of intervening act of claimant which did not break own chain of causation

wieland v cyril

Remoteness of damage test

Wagon mound test- if a reasonable person would not have foreseen the damage, it cannot be recovered

Two exceptions to consider in remoteness test

Similar in type rule and Eggshell Skull Rule

What is the Similar in type rule

If the claimant suffers an injury of a type which was foreseeable, it does not matter that the precise way in which the claimant was injured was not foreseeable -Hughes v Lord Advocate

What is the Eggshell Skull rule?

take your victim as you find them- Robinson v Post Office

how is Tremain v Pike different to Hughes v Lord Advocate

Tremian v Pike the similar in type rule failed because injury was not forseeable, failed on remoteness

What is the first defence to negligence

voluntary assumption of risk (Volenti non fit injuria)

What does the defence of consent need

1) That the claimant had full knowledge of the nature and extent of the risk 2) that the claimant willingly consented to accept risk of being injured due to negligence

how complete is the defence of consent

defence of consent is a complete defence

Voluntary assumption of risk consent cases

Dann v Hamilton- knowledge of the risk was sufficient to imply consent to the risk

Morris v Murray- The drunkenness of the pilot was so extreme and glaring that the claimant could be said to have accepted the risk of his negligence

Volenti and employees case

Smith v Baker- employee did not consent in law to the risk, despite continuing to work

Volenti and rescuers- Haynes v Harwood

claimant was injured rescuing people and so did not willingly accept the risk of injury.

defence of illegality

ex turpi causa non oritur actio, Pitts v Hunt

-the damage arises directly out of the illegal activity in such a way that it would be contrary to public policy to allow the claimant a remedy.

-The illegal activity itself must be substantial and not a relatively minor criminal offence

Excluding liability

A person may try to exclude or limit their liability to another in tort, including negligence.

2 elements for contributory negligence

• carelessness on the claimant’s part; and

• that carelessness has contributed to the claimant’s damage.

Law for contributory negligence

Law Reform (Contributory Negligence) Act 1945

what does section 1 (1) of the contributory negligence act say

Where any person suffers damage as the result partly of his own fault and partly of the fault of any other person or persons:

(a) a claim in respect of that damage shall not be defeated by reason of the fault of the person suffering the damage, but

(b) the damages recoverable in respect thereof shall be reduced to such extent as the court thinks just and equitable having regard to the claimant’s share in the responsibility for the damage.

how are damages reduced for contributory negligence

• to such extent as the court thinks just and equitable;

• having regard to the claimant’s share in the responsibility for the damage

case for contributory negligence

Reeves v Metropolitan Police Commissioner

what do courts take into account when assessing damages for contributory negligence

• culpability, ie the relative blameworthiness of the parties;

• causation, ie the extent to which the claimant’s carelessness has caused or contributed to the loss suffered

contributory negligence seatbelts case

Froom v Butcher -the defendant must establish a causal link between the claimant’s failure to wear a seatbelt and the loss the claimant has suffered

Contributory negligence crash helmets

Capps v Miller- same reduction as seatbelts

contributory negligence - drunken drivers

Owens v Brimmell- Passengers who accept lifts from a driver whom they know to be drunk can expect to have their damages reduced if they are injured in an accident caused by the driver’s intoxicated state.

contributory negligence- children

Gough v Thorne- whether an ordinary child of the claimant’s age would have taken more care for their safety than the claimant did

Contributory negligence- rescuers

Baker v TE Hopkins & Son Ltd- a rescuer will be judged against the standard of the reasonable rescuer.

Allowance will be made for the emergency situation in which many rescuers will find themselves.

Only if a rescuer has shown a ‘wholly unreasonable disregard for his or her own safety’ is there likely to be a finding of contributory negligence

contributory negligence- dilemma case

Jones v Boyce method used by the claimant to try to save himself ‘in the agony of the moment’ was found to be a reasonable one, no finding of contributory negligence

How is Sayers v Harlow different to Jones v Boyce

the claimant did not act reasonably and therefore there was a finding of contributory negligence