Causation and remoteness of damage flashcards

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But-for test (factual causation)?

Would the harm have occurred but for D's breach? If yes even without breach, no factual causation (Barnett v Chelsea — no duty to treat, but patient would have died anyway).

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Thin skull / egg-shell skull rule?

Take your victim as you find them — D liable for full extent of harm even if C unusually vulnerable (Smith v Leech Brain — burn triggered cancer).

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Remoteness test (Wagon Mound)?

Damage not too remote if the type/kind of harm was reasonably foreseeable — not exact sequence or extent (Overseas Tankship v Morts Dock).

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Novus actus interveniens?

New intervening act breaking the chain — e.g. free, deliberate, informed act of third party (McKew v Holland — claimant's own reckless descent).

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Multiple causes?

Material contribution test may apply where but-for fails but D materially contributed to injury (Bonnington Castings — dust exposure).

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Remoteness vs foreseeability at duty stage?

Different stages — duty uses foreseeability of harm to neighbour; remoteness asks whether this particular damage type was foreseeable once duty exists.

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What is the 'but for' test for factual causation?

It asks: 'But for the defendant's breach of duty, would the claimant have suffered the damage?' If the answer is 'no' (the damage would not have occurred anyway), then the defendant's breach is a factual cause of the damage. See *Barnett v Chelsea & Kensington HMC*.

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What is a 'novus actus interveniens'?

A 'new intervening act'. It is an act that is so independent of the original breach and so unforeseeable that it breaks the chain of causation, relieving the original defendant of liability for damage occurring after the act.

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What is the test for remoteness of damage established in *The Wagon Mound (No. 1)*?

The test is whether the *type* or *kind* of damage suffered by the claimant was reasonably foreseeable to the defendant at the time of the breach of duty. The defendant is not liable for damage that is too remote because it was not foreseeable.

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Explain the 'thin skull' rule.

The defendant must 'take their victim as they find them'. If the type of injury was foreseeable, the defendant is liable for the full extent of the claimant's injuries, even if the extent was unforeseeable due to a pre-existing vulnerability or 'thin skull'. See *Smith v Leech Brain & Co*.

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How did the act of the claimant break the chain of causation in *McKew v Holland*?

The claimant, whose leg was weakened by the defendant's negligence, chose to descend a steep staircase with no handrail. He fell and suffered further injury. The court held that his own unreasonable act of descending the stairs unsafely was a novus actus interveniens, breaking the chain of causation.

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What is the 'material contribution to injury' test?

Where the 'but for' test is inconclusive due to multiple cumulative causes, a defendant is liable if their breach made a 'material contribution' to the claimant's injury. Established in *Bonnington Castings v Wardlaw* (guilty dust).

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When is the 'material increase in risk' test used?

Used in cases of scientific uncertainty (e.g., mesothelioma). If a defendant's breach materially increased the *risk* of the claimant contracting a disease, causation can be established, even if it's impossible to prove the breach was the actual cause. See *Fairchild v Glenhaven*.

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What is the legal position on 'loss of a chance' claims?

Generally, claims for loss of a chance of a better medical outcome are unsuccessful in English law. The claimant must prove on the balance of probabilities (>50%) that the negligence caused the worse outcome, not just the loss of a chance. See *Hotson* and *Gregg v Scott*.