A level Law: Liability in negligence for injury to people and damage to property: Negligence

Factual Causation

Factual causation involves showing the link between the defendant's act or omission and the injury or loss caused. Not all factual causation involves legal causation

Legal Causation

Legal causation refers to when the defendant is legally responsible for the injury or loss. For instance, for the defendant to be liable for an injury it must be shown that the reasonable person could foresee the injury occurring
Bhamra v Dubb (2010):

Mr Dubb catered for a Sikh wedding and knew full well that none of the food should've contained egg (it is forbidden to Sikhs)
Some of the food contained egg, which Mr Bhamra had an anaphylactic reaction to, and died
Mr Dubb was held to have breached his duty of care

Factual Causation: The Test

The claimant must show a causal link between the defendant's act or omission and the damage caused
The test used to establish the factual cause is sine qua non
Blyth v the Company of Proprietors of the Birmingham Waterworks (1856):

Birmingham waterworks installed a water main on Blyth's street
25 years later it sprung a leak due to frost
No evidence of negligence
Held - no - Birmingham waterworks did not breach their duty, it was simply an accident. There was no causation.

Sine Qua Non

Sin qua non is often referred to as the 'but for' test. In other words, it must be shown that but for the defendant's act or omission the claimant would not have suffered damage or loss
In an examination, it is acceptable to refer to it as the 'but for' test

Cases

A man went to hospital but was turned away
He later died of arsenic poisoning - he would not have lived even if a doctor had treated him
The hospital was not liable
The 'but for' test was applied. The failure of the hospital was not the cause of his death

Claimant became seriously ill after working for many years in dusty conditions in a foundry
There were two types of dust in the foundry, only one of which should have been extracted by law
It could not be proved which type of dust the claimant had inhaled
The defendants were liable because although there were two possible causes of the claimant's illness, together, both kinds of dust contributed

The claimant was employed to clean out kilns
No wash facilities were provided by the defendants
The claimant developed dermatitis as a result of the brick dust clinging to his skin

The House of Lords found the employer liable for negligence because they had materially increased the risk of injury by not providing wash facilities
Lord Reid stated "I think that in cases like this we must take a broader view of causation"

An employee (deceased) had been exposed to asbestos while working for several different employers
He contracted a type of cancer that was caused by asbestos
It could not be determined which employer was responsible
The House of Lords decided that each of the employers who exposed him to asbestos was liable
Each defendant had materially increased the risk of harm towards the claimant

Loss of Chance

A 'loss of chance' refers to cases where the defendant's negligence deprived the claimant of the opportunity to avoid a loss. They usually involve medical negligence
For instance a claimant has an illness from which he has a 70% chance of surviving if it is properly treated. His doctor negligently fails to diagnose the illness until the claimant's chance of survival has been reduced to 50%
Hotson v East Berkshire Area Health Authority (1988):

School boy fell out of a tree injuring his hip
When he went to hospital they failed to diagnose the fracture, thereby reducing his chance of recovery, as without the negligence he would have had a 25% chance of full recovery
As chance of recovery was reduced by less than 50%, no damages were awarded

Claimant's cancerous lump was incorrectly diagnosed as benign, which led to a nine month delay in treatment
Held - no damages - damages in a case like this will only be awarded if the initial prospects were 50% or higher

Novus Actus Interveniens

Breaking the Chain of Causation

The link between the defendant's act or omission and the injury or loss suffered is often referred to as the chain of causation
An intervening act may break the chain of causation meaning that the defendant is not liable for the injury or loss suffered by the claimant
Knightley v Johns (1982)

A car driven by Johns had overturned in a tunnel
The senior police officer instructed a constable to ride his motorbike to the other side of the tunnel and close it
The constable was instructed to drive the wrong way through the tunnel and subsequently was involved in a collision with a car travelling the opposite way
The constable who was injured made claims of negligence against the driver of the overturned car, the senior police officer who instructed him and the Chief Constable
It was held by the Court of Appeal that the senior police officer and Chief Constable were liable, but the driver of the overturned car was not
The instructions from the senior officer, going through the tunnel on the wrong side and the collision with the oncoming car were a novus actus interveniens that had broken the chain of causation

Claimant was knocked down by the defendant's car
As a result, he sustained a fairly severe injury in his left leg and ankle and as a result he had to take a lower paid job
Three years later when the claimant was at work, two men came in and shot at him causing serious injuries to his already damaged leg which then had to be amputated
It was argued by the defence that the defendant was only responsible for the claimant's injuries and losses leading up to when the claimant was shot in the leg
They suggested that the shooting was a novus actus interveniens
The House of Lords disagreed and held that the claimant's loss of earnings was a result of the original injury

The claimant slipped at work due to his employer's negligence and injured his back which reduced his earning capacity
Three years later he developed a spinal disease that was unrelated to the earlier accident
The House of Lords decided that the spinal disease was a novus actus interveniens and the employer was not responsible for the losses incurred after the disease occurred
Distinguished from Baker v Willoughby

The claimant suffered a leg injury as a result of his employer's negligence which left his left leg seriously injured
He later fell when he tried to come down a steep flight of stairs with no handrail
The House of Lords decided that the defendant was not liable for the second injury because his decision to come down the stairs without a handrail or assistance was a novus actus interveniens which had broken the chain of causation.

Remoteness

A level Law