Issues of Causation and Remoteness

Paper Summary:

This paper examines the issues of causation and remoteness in a tort of negligence claim. It provides a case study of a man who offers to fly a group to Disneyland in a private jet and breaches his duty of care when he drinks some alcohol in an effort to calm his nerves. The paper discusses the details of the case from a legal perspective and discusses the issues that arise.

From the Paper:

"As it is unclear whether her arm could have been saved had Rachel been sent to see the consultant earlier we cannot apply the "but for" test. The delay in treatment may have reduced Rachel's chance of a full recovery; however, for such an argument to succeed it needs to be proved on the balance of probabilities to at least 51%. If a loss chance was recognised by Abby's failure to recognise the injury in time to treat it, then Abby would be liable. In the case of Hotson v East Berkshire Area Health Authority it was discovered that if the 13 year old boy who fell from a tree, was correctly diagnosed sooner he would have had a 25% of making a full recovery, but the delay in treatment meant that he lost this 25% chance and suffered avascular necrosis. However, it was held in the House of Lords that this 25% loss of chance does not prove the case to the necessary balance of probabilities that a civil action must be found. The Court of Appeal's 'quantification' of damages was wrong, as the obstacle of causation had not been overcome. In this scenario therefore, for Abby to be considered liable, it would need to be proved that had Rachel's injury been discovered sooner she would have had a 51% chance or more of making a full recovery."

Sample of Sources Used:

• W. H. Rogers, Winfield and Jolowicz on Tort, 16th Ed. (2002) p 103
• Andrew Clark (transport correspondent) in The Independent, Wednesday January 12, 2005
• per Stanwick J. in Stokes v Guest, Keen and Nettleford (Bolts and Nuts) Ltd [1968] 1 W.L.R. 1776
• Bolam v Friern Hospital Management Committee [2003] 1 W.L.R 1607
• Jones v Boyce (1816) 1 Stark. 493

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