WORKSHOP THREE

General Negligence: Causation

General Negligence

• Parties
• Tort
• Loss
• Duty
• Breach
• Causation
• Remoteness
• Defences
Workshop three
1: Negligence: introduction and duty of
care
2: Negligence: breach of duty
3: Negligence: causation
4: Negligence: remoteness and defences
5: Vicarious liability and employers’
primary liability in negligence
6: Special types of loss in negligence:
nervous shock
7: Special types of loss in negligence: pure
economic loss
8: Nuisance
9: Occupiers’ liability
Learning objectives
1. Learn about factual and legal
causation in the context of the tort of
general negligence;
2. Apply what you have learned to a
variety of realistic scenarios;
3. Consider how this knowledge can be
assessed by way of multiple-choice
questions and practice such MCQs;
and
4. Practice and enhance your oral and
written communication skills.
Pervasive Skills

Team work: worked in teams to produce internal knowhow on five key cases in relation
to factual causation.
 
Case analysis: you were required to find, read and analyse one of five key factual
causation cases.
 
Oral communication / presentation skills: presenting legal arguments on legal
causation.
 
Written communication skills: you were required to provide a succinct explanation of a
key case in relation to factual causation and to provide a succinct written review of
whether factual causation is satisfied in the claims against Sophia, the ambulance and
the hospital.
Structure

• Introduction (10 minutes)

• Activity 1: Peer assessment of case summaries (LO1 and LO4) (35 minutes)
• Activity 2: Exercise on the law of NAI (LO1 and LO4) (15 minutes)
• Activity 3: Group discussion of factual and legal causation (LO1 and LO2) (25 minutes)
• Activity 4: Further analysis of factual and legal causation (LO1 and LO2) (20 minutes)
• Conclude
Activity 1

• Peer Assessment of factual causation case summaries

• 20 minutes peer assessment
• 15 minutes group discussion
Criteria 40-49% 50-59% 60-69% 70 + (Distinction)
(Borderline Fail) (Pass) (Merit)
Demonstrating A Limited knowledge A satisfactory, A good, An excellent,
knowledge and base and / or comprehensive and comprehensive and comprehensive and
conceptual systematic systematic systematic
understanding understanding of the knowledge base and knowledge base and knowledge base and
of relevant legal key or fundamentally conceptual conceptual conceptual
principles and relevant legal principles understanding of the understanding of the understanding of the
provisions and provisions. key or fundamentally key or fundamentally key or fundamentally
relevant legal relevant legal relevant legal
Significant evidence of principles and principles and principles and
irrelevant content, provisions. provisions…. provisions….
errors and / or Limited irrelevant No or highly limited
omissions that are content, errors and / Highly limited irrelevant content,
major and / or or omissions that are irrelevant content, errors and / or
significant in the overall minor and / or errors and / or omissions that are
context. insignificant in the omissions that are very minor or
overall context. minor or insignificant insignificant in the
Articulation of the Articulation of the in the overall context. overall context.
relevant law is unclear, relevant law in a way Articulation of the
inaccurate, incomplete, that is not wholly Articulation of the relevant law is clear,
and / or predominantly imitative and / or relevant law is clear accurate and
imitative and / or descriptive, and accurate, systematic,
descriptive, demonstrating demonstrating good demonstrating
demonstrating limited satisfactory understanding. excellent
understanding.. understanding.. understanding..
Criteria 40-49% 50-59% 60-69% 70 +
Effectively and Limited Satisfactory Good interpersonal Excellent
appropriately interpersonal skills interpersonal and and interpersonal and
communicating which are communication communication communication
legal information in developed, skills which are skills which are skills which are
different situations adapted and generally well-developed, very well-
and to different refined to suit a developed, adapted and developed,
audiences. basic range of adapted and refined to suit an adapted and
situations and refined to suit an appropriately wide refined to suit an
audiences. appropriate range range of situations appropriately wide
of situations and and audiences. range of situations
Communication is audiences. and audiences.
limited; not Communication is
generally clear, Satisfactory consistently clear, Communication is
engaging, communication engaging, very clear,
persuasive and/or that is generally persuasive and engaging, highly
well structured. clear, engaging, well structured persuasive and
persuasive and well structured.
well structured.
Activity 1
Barnett v Chelsea and Kensington Hospital Management Committee:

• Mr Barnett attended A&E and was told to go home and see his doctor. Five hours
later he died of arsenic poisoning.
• Even if admitted to hospital five hours earlier, there was little or no chance that the
antidote would have been administered on time.
• But for the defendant’s breach (failing to examine Mr Barnett), Mr Barnett would have
died anyway on the balance of probabilities.
• A simple illustration of the ‘but for’ test.
• ‘But for’ test is always the starting point for factual causation.
Activity 1
Bonnington Castings Ltd v Wardlaw:

• During employment, the claimant was exposed to silica dust by the defendant.
• Part of this dust was tortious and part was ‘innocent’. Both sources together
contributed to the claimant contracting pneumoconiosis.
• But for test failed - claimant could not prove on the balance of probabilities that
without the tortious dust he would not have suffered pneumoconiosis.
• Where two or more sources contribute to the claimant’s loss and medical science
cannot establish which source was the most significant cause, apply the material
contribution test.
• Claimant was able to prove on the balance of probabilities that the tortious dust made
a more than negligible contribution to his pneumoconiosis.

 
 
Activity 1
McGhee v National Coal Board [1973] 1 WLR 1 (HL):
• During employment, the claimant was exposed to brick dust by the defendant and
suffered dermatitis.
• Part of this dust was tortious, and part was ‘innocent’.
• But for test failed - claimant could not prove on the balance of probabilities that
without the tortious dust he would not have suffered dermatitis.
• Material contribution test failed – claimant could not prove on the balance of
probabilities that the tortious dust made a more than negligible contribution to his
dermatitis. The dermatitis could have been caused by a single exposure to brick dust.
• However, the claimant could prove that the longer the dust was on his skin, the
greater the risk of contracting dermatitis.
• The House of Lords established the material increase in risk test which the claimant
could satisfy – the tortious dust materially increased his risk of contracting dermatitis.
• Note that currently this test is confined to industrial disease single agency cases
(namely mesothelioma and lung cancer caused by asbestos).
Activity 1
Wilsher v Essex Area Health Authority:

• Hospital negligently administered excess oxygen to premature baby.

• The baby developed an incurable eye condition (‘RLF’). The condition could have been
caused by the excess oxygen OR by four other non-tortious factors.
• Five factors were not operating together. One factor solely responsible.
• Material increase in risk test did not apply as more than one ‘agent’.
• But for test was applied and failed – there was no way of showing on the balance of
probabilities that but for the defendant’s breach, the baby would not have suffered RLF.
• There was only a 20% chance that the breach caused the loss.
Activity 2
Legal Causation

Act of God
• Exceptional natural event
• Carslogie Steamship Co Ltd v Royal Norwegian Government

Act of Claimant
• Highly unreasonable
• McKew v Holland; Wieland v Cyril; Spencer v Wincanton

Act of Third Party

• Highly unforeseeable (very unlikely to happen as a result of the breach)
• Knightley v Johns
• Medical Negligence – so gross and egregious as to be unforeseeable (Robinson v PO)
Activity 3
Which of the claims would potentially satisfy the ‘but for’ test?

A. Sophia Jennings
B. Ambulance Trust
C. Dr Garcia 

D. Answer: A – Sophia Jennings 

But for Sophia’s breach (sleeping pills/speeding/swerving), Ben would not have suffered
whiplash, a slipped disc or paralysis at that time and in that way (Barnett v Chelsea and
Kensington).  

Alternative argument? 
Activity 3
Parties: Ben Wilkins v Sophia Jennings
Tort: General Negligence
Loss: Personal Injury, Property Damage and CEL
Duty: Workshop 1
Breach: Workshop 2
Factual Causation: previous slide
Legal Causation:
• Act of third party – Kalvinder – highly unforeseeable? (Knightley v Johns)
• Act of third party – Ambulance – highly unforeseeable? (Knightley v Johns)
• Medical Negligence – Dr Garcia – so gross and egregious as to be unforeseeable?
(Robinson v PO)
Activity 4
Parties: Ben Wilkins v Northern Ambulance Service NHS Trust
Tort: General Negligence
Loss: Personal Injury and CEL
Duty: Workshop 1
Breach: Workshop 2
Factual Causation:
• But for the ambulance’s breach, would Ben have suffered his slipped disc and paralysis
at that time and in that way on the bop? (Barnett v Chelsea and Kensington HMC)
• Impossible to answer.
• Collision, Kalvinder and delay were all capable of contributing to the losses.
• Material contribution test (Bonnington v Wardlaw) – delay made a more than
negligible contribution to claimant’s loss on the bop.
Legal Causation:
• Medical Negligence – Dr Garcia – so gross and egregious as to be unforeseeable?
(Robinson v PO)
Activity 4
Parties: Ben Wilkins v Dr Garcia 
Tort: Medical Negligence 
Loss: Personal Injury and CEL
Duty: Workshop 1
Breach: Workshop 2
Factual Causation: 
• But for Dr Garcia’s breach, would Ben have suffered paralysis at that time and in that
way on the bop? (Barnett v Chelsea and Kensington HMC). Impossible to answer. 
• Collision, Kalvinder, delay and operation were all capable of contributing to the
losses. 
• Material contribution test (Bonnington v Wardlaw) – operation made a more than
negligible contribution to claimant’s loss on the bop. 
• Damages divided between the three defendants that contributed to Ben’s paralysis.
Legal Causation:
• No NAI on the facts given. 
Conclusion

Achieved learning objectives? This week was…

1. Learn about factual and legal 3: Causation
causation in the context of the tort of
general negligence; Next week…
2. Apply what you have learned to a 4: Remoteness and defences
variety of realistic scenarios;
3. Consider how this knowledge can be
assessed by way of multiple-choice
questions and practice such MCQs;
and
4. Practice and enhance your oral and
written communication skills.
Consolidation

Consolidation exercises:
1. Review the supplemental guidance in relation to the case summaries.
2. Three additional questions – review your answers using the supplemental guidance.
3. Access and complete the assessment-level MCQs on the Hub.