Chapter 9 Answers to end-of-chapter questions

Causation and remoteness of damage

1. Is there a coherent way of explaining the difference between supervening and intervening acts?

An answer to this question would require a brief explanation (with case examples) of each of the two principles. The decision in Jobling v Associated Dairies Ltd [1982] (section 9.2.3) is probably the best example of what amounts to a supervening act. The case can be seen as one where the later 'sufficient cause' of the harm complained of (the disease that had occurred naturally) had overtaken or superseded the original cause (the negligence), thus meaning that the defendant should only be liable up until the point that the negligence was overtaken. It is important to note that this means the claimant wins but the quantum of damages is affected. When there is an intervening act, by comparison, the claimant loses, as the later act (of the claimant, a third party, or even the defendant) can be said to have broken the chain of causation that linked the defendant's actions to the claimant's harm (section 9.3.2). However, the question requires more than an explanation of the differences and asks how coherent – or rational – this explanation is. Is there really a difference between later events that overtake the original negligence, but are said to leave the original harm compensatable by the defendant, and those later events that break the chain of causation? It is simply a matter of how the case is presented? Are there policy considerations involved? The answer to this would require a close analysis of the judgments to determine precisely where the differences (if there are any) lie.

2. Does the remoteness test lose some of its impact or validity with the incorporation of the 'egg shell skull' rule?

Here, too, an answer would require some explanation – both of the concept of 'remoteness'/foreseeability (and the cases that formulated it – see section 9.3.1) and of the 'egg shell skull' rule (section A better answer would also consider what the impact of the remoteness rules is thought to be – why do the rules exist? Have they changed in any way over time as the cases have developed? Why? Answering the main question will need to focus on the distinction between the type and extent of damage – and thus whether the 'egg shell skull' rule, focusing as it does on type, minimises the supposed effect or impact of the remoteness test. What, for example, would be the effect of not having the rule?

3. What policy reasons can you identify that have affected the courts in asbestos-related injury cases? Are they consistent?

This is a quite detailed question focusing on a very specific area of the law on causation – the type of thing you might get as either an assessed essay or in an exam. Answering it would require detailed knowledge of the development of the law (on causation) related to asbestos-based claims, in particular the reasoning given by the judges in their decisions in the 'big' cases (and especially the different approach taken to different asbestos-related diseases, including whether they are considered to be divisible or indivisible harms).

Upon reading the chapter you should have noted that these cases have led the courts to create exceptions to the general rules on causation. An answer to this type of question should not be attempted without close reading of the cases, as it is from here you will gain the best idea of the policy reasons that have been driving the outcomes of them (as well as statute, in this area), as well as an indication about whether the reasoning has remained consistent. As we have also indicated in other suggested approaches to the end-of-chapter questions, creating yourself a useful tool such as a timeline may help here.

A question in two parts should always be given a two-part answer. Using subheadings will help you to focus on the particular aspect you should be considering at any one point.

As background, some explanation of the different types of asbestos-related injury would probably be expected, as well as any significant differences between these. Include, also, reference to the fact that what we are considering here are those diseases when they are the result of negligence.  Then, an answer should include reference to the 'big' decisions, and should start by identifying what these were. Don't be fooled into starting too recently – the policy and practice of the courts in asbestos-related negligence cases has a longer history than might be imagined (and this may link back to the type of harm/disease complained of) – this is one reason a timeline might be helpful. Essentially, what we would be expecting to see in an answer if we set this question would be a distinction drawn between at least three different sorts of asbestos-related harm: asbestosis, mesothelioma, and pleural plaques. The concept of 'justice' should feature quite prominently in any discussion – is this what drove the courts to abandon tradition applications of the rules on causation and create exceptions to the general rules when cases would have failed had they been adhered to? And, if so, how does this explain some of the more recent cases (e.g. Barker v Corus [2006]; Grieves v FT Everard [2008]; Sienkiewicz v Greif (UK) Ltd [2011]; Willmore v Knowsley Metropolitan Borough Council [2011]; Heneghan v Manchester Dry Docks Ltd and others [2016])? What (different) policy or other reasons were behind the decisions in these cases? The best answers here will have engaged with the actual speeches of the judges in the 'big' cases and really pulled out and critically analysed the reasoning in them – particularly when policy arguments were relied on. Similarly, good answers might engage with academic writing (or the text of public speeches by members of the judiciary) on these issues.

Answering the second question is shorter – and largely follows from the answer to the first part. If the policy reasons have changed over time, does this necessarily mean that they are inconsistent? Are there any external factors that you could use here to help shape your reasoning?

4. To what extent do the rules on factual and legal causation help to achieve the general aims of tort law?

This is the type of question you might be expected to think about as part of your preparation for a seminar or tutorial. Answering it first requires you to go back and think about what the (supposed) aims of the tort system are (see chapter 1, section 1.3). Bear in mind that, often, some of these aims could be said to 'compete' against each other – or you might have your own interpretation of what the (current) aims of tort law are (or the practical and other limitations on achieving these aims, for example in terms of access to justice). This question would also require you to have a general overall knowledge of the rules on (and difference between) factual and legal causation – including some of the ‘exceptions’ to the rules that have been judicially or statutorily created (and why these have happened). As you review each of these rules, think about how (and/or whether) they fit with (any of) the aims of the tort system at large or, if not, why not. Better answers might also consider why this might be – relating the legal rules to policy and the political and socio-economic climate of the time in which they were made. Done properly, a lot of understanding – of both the complex topic of causation and of tort more generally – could be gained from spending some time thinking about and articulating an answer to this question.

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