1 - TORT - Causation

Question 1

What 2 things are required to prove causation?

Answer 1

Factual causation
Legal causation

Question 2

What is the meaning of ‘res ipsa loquitur’?

Answer 2

Where only plausible explanation for C’s injury is D’s negligence:
a) thing causing damage controlled by D
b) accident wouldn’t normally happen w/o negligence
c) cause of accident unknown to C

Question 3

What is factual causation and how is it satisfied?

Answer 3

Establishing link between breach & damage
Apply ‘but for’ test: on balance of probabilities, but for D’s breach, would C have suffered their loss at that time, and in that way? If yes = satisfied

Question 4

Where breach is failure to advise on risks, how is the ‘but for’ test satisfied?

Answer 4

Where C can prove they wouldn’t have had the treatment or would’ve deferred it had they been told

Question 5

What test is used to satisfy factual causation for multiple causes operating together?

Answer 5

Material contribution test: ‘more than negligible’ contribution
Also applies to sequential cumulative cases

Question 6

What test is used for factual causation for industrial disease, single agency cases?

Answer 6

Material increase in risk test

Question 7

What must be applied if necessary once factual causation is satisfied, where there are multiple tortious factors?

Answer 7

Apportionment: apportion liability between defendants
In abestos cases, D’s are jointly and severally liable

Question 8

What happens where there are 2 distinct events that cause the same damage, or worsen existing damage, but events are not linked? (for factual consideration)

Answer 8

No damage could be held for 2nd event

Question 9

What NAI are there re legal causation?

Answer 9

That there was a NAI that broke the chain of causation:
- Act of God: exceptional natural event (not if foreseen)
- Acts of 3rd Parties: highly unforeseeable (unlikely where 3rd party is medical treatment unless so gross & egregious)
- Acts of Claimant: highly unreasonable (rare)

Question 10

What is ‘remoteness’ and how is it proved?

Answer 10

C only recovers if the type of damage suffered 💥was reasonably foreseeable 👀at time D breached DoC - broad approach mostly used
1. D need not foresee the exact way damage occurs
2. D need not foresee extent of the type of damage, even if damage aggravated by C’s own weakness (thin skull rule)