Chapter 4 Guidance on answering the questions in the book

Question 1

Ben met his friend Olu, and they agreed they both needed a drink. They went to the pub, where Olu bought the drinks and Ben, after several pints, offered Olu a lift home. On the journey home, Ben collided with Kimberley, a 6-year-old who was trying to cross the street. The collision caused Olu to fly through the windscreen, and pushed Kimberley into the path of an oncoming car being driven by Ernie, aged 82. Kimberley sustained serious internal injuries. An ambulance was summoned to take Olu, Kimberley, and Ernie to hospital. Greta, the ambulance dispatcher, having taken the call, did not dispatch an ambulance for 15 vital minutes, while she finished the magazine she had been reading when the call came. By the time the ambulance arrived, Olu had died. At the hospital, Kimberley’s injuries were misdiagnosed by Mary, a junior doctor who was attending in Accident & Emergency for the first time. Had the nature of her injuries been correctly assessed in A&E, Kimberley would have had a 40 per cent chance of full recovery. Kimberley is now paraplegic.

Analyse the causation issues in this scenario.

Outline:

• This scenario is intended to give you the opportunity to explore the three key elements of the tort of negligence in succession: duty of care, breach of duty and causation of damage. All three elements are required for a successful action. Here, refer to ’causation of damage’ in Chapter 4.
• The issue of causation determines the factual and legal links between the defendant’s behaviour and the damage suffered by the claimant.
• You must consider: first, causation in fact (applying the ‘but for’ test from Barnett v Kensington and Chelsea Hospital)
• and then causation in law or remoteness (test of reasonable foreseeability from Wagon Mound I) for each possible cause of action.
• Within remoteness, the possibility of a break in the chain of causation (novus actus interveniens) may be applicable.
• Be sure to consider defences

• Olu’s estate v Ben – Olu’s injury can be separated into: first, the initial effects of the crash resulting from Ben’s negligence. Injuries sustained from flying through the windscreen are factually linked to Ben’s actions and since physical injury was reasonably foreseeable, there is no remoteness issue.
• Olu’s estate v Greta – Secondly, the but-for test must be applied to Olu’s death following the ambulance delay. If he had been more likely than not to survive his injuries with a normal ambulance response time, then Greta may be liable for the death (Barnett). Whether her negligence broke the chain of causation will be determined by the extent to which Greta’s action was unreasonable and/or unforeseeable, eg Wright v Lodge. There may be a partial break in the chain of causation (Rahman v Arearose).
• Kimberley v Ben – Her initial injury in being hit by Ben satisfies both the but-for and the reasonable foreseeability tests.
• Kimberley v Ernie – Ernie may be held by Ben to have contributed to her initial injuries, if he was driving negligently, subject to the but-for test. See the Civil Liability (Contribution) Act 1978.
• In the unlikely event that Kimberley was negligent, liability may be allocated between Ben, Ernie and Kimberley as in Fitzgerald v Lane
• Kimberley v Mary – Kimberley never had a greater than 40% chance of full recovery, therefore the but-for test would negate Mary’s causal link to the ultimate damage. Hotson v Berkshire AHA
• Ernie v Ben – The test for factual causation would appear to be satisfied in relation to any physical injury or property damage sustained by Ernie, and this would also be a reasonably foreseeable form of damage. This is subject to possible contributory negligence by Ernie.

Questions 2

To what extent have recent developments in causation in negligence been influenced by concerns of policy? Illustrate with case examples.

For the general approach, refer to ‘Approaching an essay question’, above.

Outline

• The majority of interesting recent developments in causation lie in factual causation. The reasons for this should be explored.
• Asbestos cases – legal background, evolution and policy justifications
• Medical and other non-asbestos developments
• Possible future directions

Factual causation in negligence is initially determined by the’ but-for’ test, as seen in Barnett v Kensington & Chelsea Hospital.  However there are a number of situation in which the test either brings a wrong or unjust outcome or, more importantly, is impossible to answer. See Bonnington Castings v Wardlaw, McGhee v NCB.

This ‘evidential gap’ has rarely been bridged in the claimants’ favour (see Wilsher v Essex AHA), especially when there are multiple different agents.

The ‘asbestos cases’ of the early 21^st century brought with them a range of complex medical, legal and policy issues which should be set out in detail. Fairchild v Glenhaven is the key case which illustrates how the House of Lords approached these issues.

Subsequent key developments were Barker v Corus, Sienkiewicz v Grief, BAI (Run off) v Durham and the Compensation Act 2006, s 3.

Recent developments have tested the extent to which a lenient approach to causation would be extended to the medical sphere - see Chester v Afshar and Correia v University Hospital of North Staffordshire regarding hypothetical situations and informed consent. Also consider Bailey v Ministry of Defence pertaining to cumulative factors. The details of these cases provide much evidence of the judicial consideration of policy. Students may wish to give informed opinions or make informed predictions on the future.