A step by step guide on how to apply the facts of a problem question to the causation theory when establishing negligence - first class standard. Both legal and factual causation included.
Negligence Flow Chart (4): Causation
Complex conditions e.g. ice or fog, are not counted in mitigating causation, we only look at
human actions.
Standard of proof: general rule – more likely than not that the wrongful conduct of D caused
the C’s injury or loss. Where there is only some evidence that D’s conduct may have
contributed to the injury, the burden is with the C.
1. Is D’s breach historically involved with the breach and were they the cause of the
damage?
It does not matter if there was more than one cause, as long as D’s breach was a cause. It is
likely if a duty of care and a breach was been established that this would be fulfilled.
Identify other possible defendants too.
2. Is the damage actionable?
If the damage was trivial you cannot claim, the breach must have caused C to suffer
actionable damage.
- If the damage has occurred before you were aware of it, then you cannot claim. The
damage has to make you worse off (Cartledge v E Jopling & Sons Ltd).
- Being at risk of damage in the future does not count – Rothwell v Chemical
Insulating
- If there is a physical injury that can impair an ability to work, even if their day to day
life isn’t affected, then this will be actionable - Dryden v Johnson Matthey Plc
Once it is established that the damage is actionable, you need to establish whether there is
a casual link.
3. Is there a causal link between the breach and the damage?
Go through the tests in this order, if it is clear from the PQ that some tests won’t apply, do
not waste time rebutting them.
a. But for test
But for D’s breach of duty would C have suffered their injury? If the C would not have
suffered the injury without the breach, then the defendant will be held to be liable.
Barnett v Chelsea and Kensington Hospital: C’s drank poisoned tea and then were turned
away from the hospital, which was a breach of duty. But even if they were admitted they
would have died, so there was no causation established.
Hypothetical conduct from the claimant can also be considered. McWilliams v Sir William
Arrol & Co: claimant fell of a crane as he wasn’t wearing a harness. It was held that even if C
was offered a harness, he would not have accepted it, as he refused in the past. Even there
was a breach there was no injury. Depending on how the breach is defined, questions on
whether causation can be established may not be fulfilled.
Hypothetical conduct from the claimant can also be considered. Bolitho v City and Hackney
HA; the doctor failed to attend C and they died. The only way C would have survived was to
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