Deck 9: Causation and the Remoteness of Damage

Question 1

Which of the following correctly describes the purpose of the 'but for' test?

A) To decide between the necessary conditions of an accident
B) To determine for which consequences the defendant is liable
C) To determine what in fact caused the injury
D) To determine whether the injury was a foreseeable consequence of the negligence

Answer 1

C

Question 2

Judy had pains in her chest and went to hospital. A doctor gave her a cursory examination and told her to stay in the waiting room, where she later had a heart attack and died. Medical evidence suggested that even if the doctor had treated her properly, she would still have had only a 30 per cent chance of living.
The doctor's negligence was a cause in fact of Judy's death.

Answer 2

False
Explanation: It cannot be established that the doctor's negligence was a cause in fact of Judy's death. To be a cause in fact it must pass the 'but for' test here, we cannot say that 'but for' the doctor's negligence Judy would still be alive the test is undertaken on the balance of probabilities and the probability is that Judy was 70 per cent likely to die anyway.

Question 3

Match the potentially problematic element of causation to the scenarios given.
-A goes to hospital with severe head pains after banging his head on the floor of a playground. B, a doctor negligently examines him and sends him home. Later, A dies from a blood clot on the brain. Medical evidence showed that there was nothing B could have done to save him.

A) Cause in fact ('but for' test)
B) Cause in law (remoteness)
C) Intervening act breaking the chain of causation

Answer 3

A

Question 4

Match the potentially problematic element of causation to the scenarios given.
-A lit a firework but failed to ensure that it was properly secured in its holder before doing so. The firework went off at an angle, hitting a shelf in B's shop. An apple on the shelf rolled off and fell into B's coffee, which was on the counter, spilling some of the hot liquid onto B's arm and causing third degree burns.

A) Cause in fact ('but for' test)
B) Cause in law (remoteness)
C) Intervening act breaking the chain of causation

Question 5

Match the potentially problematic element of causation to the scenarios given.
-A negligently caused a car crash on a motorway. B, who was driving one of the other vehicles, was slightly injured and stayed in her car and waited for help. C, an ambulance driver, responding to the scene, collided with B's car at speed and seriously injured B.

A) Cause in fact ('but for' test)
B) Cause in law (remoteness)
C) Intervening act breaking the chain of causation

Question 6

Match the case name to the exception to the 'but for' rule, the case created or helped to develop, or to the problem that faced the court.
-Bonnington Castings v Wardlaw [1956]

A) Two potential causes (one negligent) but cumulatively more likely to cause the condition, so held that the negligence made a 'material contribution' to the harm
B) Two potential causes (one negligent) but a non-cumulative condition (a single exposure would be enough) so 50:50 on 'but for' test - court held it was enough that the negligence 'materially increased the risk' of the condition
C) Multiple potential causes (one negligent) - defendant's negligence could not pass the 'but for' test so the claimant failed
D) Multiple potential causes (all negligent) but a non-cumulative condition (a single exposure would be enough) so liability could not be established on 'but for' test - court held it was enough that the negligence 'materially increased the risk' of the condition
E) Two potential causes (one negligent) but treated as cumulative, despite the medical context, and held that the negligence made a 'material contribution' to the harm

Question 7

Match the case name to the exception to the 'but for' rule, the case created or helped to develop, or to the problem that faced the court.
-McGhee v National Coal Board [1973]

A) Two potential causes (one negligent) but cumulatively more likely to cause the condition, so held that the negligence made a 'material contribution' to the harm
B) Two potential causes (one negligent) but a non-cumulative condition (a single exposure would be enough) so 50:50 on 'but for' test - court held it was enough that the negligence 'materially increased the risk' of the condition
C) Multiple potential causes (one negligent) - defendant's negligence could not pass the 'but for' test so the claimant failed
D) Multiple potential causes (all negligent) but a non-cumulative condition (a single exposure would be enough) so liability could not be established on 'but for' test - court held it was enough that the negligence 'materially increased the risk' of the condition
E) Two potential causes (one negligent) but treated as cumulative, despite the medical context, and held that the negligence made a 'material contribution' to the harm

Question 8

Match the case name to the exception to the 'but for' rule, the case created or helped to develop, or to the problem that faced the court.
-Wilsher v Essex Area Health Authority [1988]

A) Two potential causes (one negligent) but cumulatively more likely to cause the condition, so held that the negligence made a 'material contribution' to the harm
B) Two potential causes (one negligent) but a non-cumulative condition (a single exposure would be enough) so 50:50 on 'but for' test - court held it was enough that the negligence 'materially increased the risk' of the condition
C) Multiple potential causes (one negligent) - defendant's negligence could not pass the 'but for' test so the claimant failed
D) Multiple potential causes (all negligent) but a non-cumulative condition (a single exposure would be enough) so liability could not be established on 'but for' test - court held it was enough that the negligence 'materially increased the risk' of the condition
E) Two potential causes (one negligent) but treated as cumulative, despite the medical context, and held that the negligence made a 'material contribution' to the harm

Question 9

Match the case name to the exception to the 'but for' rule, the case created or helped to develop, or to the problem that faced the court.
-Fairchild v Glenhaven Funeral Services [2002]

A) Two potential causes (one negligent) but cumulatively more likely to cause the condition, so held that the negligence made a 'material contribution' to the harm
B) Two potential causes (one negligent) but a non-cumulative condition (a single exposure would be enough) so 50:50 on 'but for' test - court held it was enough that the negligence 'materially increased the risk' of the condition
C) Multiple potential causes (one negligent) - defendant's negligence could not pass the 'but for' test so the claimant failed
D) Multiple potential causes (all negligent) but a non-cumulative condition (a single exposure would be enough) so liability could not be established on 'but for' test - court held it was enough that the negligence 'materially increased the risk' of the condition
E) Two potential causes (one negligent) but treated as cumulative, despite the medical context, and held that the negligence made a 'material contribution' to the harm

Question 10

Match the case name to the exception to the 'but for' rule, the case created or helped to develop, or to the problem that faced the court.
-Williams vThe Bermuda Hospitals Board (Bermuda) [2016]

A) Two potential causes (one negligent) but cumulatively more likely to cause the condition, so held that the negligence made a 'material contribution' to the harm
B) Two potential causes (one negligent) but a non-cumulative condition (a single exposure would be enough) so 50:50 on 'but for' test - court held it was enough that the negligence 'materially increased the risk' of the condition
C) Multiple potential causes (one negligent) - defendant's negligence could not pass the 'but for' test so the claimant failed
D) Multiple potential causes (all negligent) but a non-cumulative condition (a single exposure would be enough) so liability could not be established on 'but for' test - court held it was enough that the negligence 'materially increased the risk' of the condition
E) Two potential causes (one negligent) but treated as cumulative, despite the medical context, and held that the negligence made a 'material contribution' to the harm

Question 11

The difference between the decisions in Fairchild v Glenhaven Funeral Services [2002] and the similar case of Barker v Corus [2006] is not in the reason for the decision but only in the decision relating to the extent of the defendant's liability.

Question 12

Select the best explanation, from the list below, of the outcome of Chester v Afshar [2005].

A) Doctors only need inform patients of risks attached to medical operations if the risks are thought to be medically significant.
B) Doctors must inform patients of known risks attached to medical operations, even if they are very unlikely to materialise.
C) Doctors need never inform patients of the risks attached to medical operations.

Question 13

In his dissenting opinion in Gregg v Scott [2005] (the case that has ruled out, at least for now, claims for 'lost chance' in a medical setting), Lord Nicholls said that the case:
'raises a question which has divided courts and commentators throughout the common law world. The division derives essentially from different perceptions of what constitutes injustice in a common type of medical negligence case. Some believe a remedy is essential and that a principled ground for providing an appropriate remedy can be found. Others are not persuaded. I am in the former camp' (at [1]).
He goes on to say that the idea that a patient can only recover damages if his original chance of recovery had been more than 50 per cent is '________ and indefensible' (at [3]).

Question 14

Which of the following correctly explain the cause in law test?
Please select all that apply.

A) Recovery is only allowed when the harm is deemed to have been foreseeable to the defendant.
B) Recovery is only allowed when the harm is not too remote a consequence of the defendant's negligence.
C) Recovery will be denied when a harm is considered to be too remote a consequence of the defendant's negligence.
D) Harms that were unforeseeable to the defendant are not recoverable.
E) Recovery is only allowed when the harm is deemed to have been foreseeable to the claimant.
F) If the claimant is too remote then recovery will be denied.

Question 15

To get past the cause in law test, the full extent of the damage has to be foreseeable.

Question 16

Which of the following can potentially break the chain of causation?

A) The natural response of the claimant
B) The defendant's negligence
C) A third party's negligence