2.1.3 Causation - Specific Principles Flashcards
What should be done if the claimant has proved both duty and breach?
The claimant must prove on the balance of probabilities that the breach caused the damage suffered - causation in fact and causation in law (remoteness)
How do we determine causation in fact?
The ‘but for’ question -
But for the defendant’s breach of duty, would the claimant have suffered the damage?
If it can be shown that the defendant’s actions would have made no difference, then any breach of duty would not be a factual cause of the damage.
What factual causation test should apply to cumulative conditions (e.g asbestos?)
If you are dealing with a situation where a person is suffering from a cumulative disease, the test becomes:
Whether, on the balance of probabilities, the breach of duty made a ‘material contribution’ to the damage.
In such cases, the court treats each possible defendant separately and each will be liable proportionately for their own contribution only.
How do the courts deal with non-cumulative conditions (e.g single asbestos fibre entering the lungs)?
If it is impossible to work out when the exposure happened, it may be sufficient for a claimant to demonstrate that: the defendant merely made a material contribution to the risk of harm.
Consequence of material contribution - there may be joint and several liability for any defendants who can be shown to have contributed to that risk.
What is the rule for when there are multiple employers that are considered to have materially contributed to the risk of harm?
The court will only award damages against each defendant in proportion to their relative contribution.
Statutory exception for mesothelioma (type of cancer caused by exposure to asbestos) - any single employer can be held jointly and severally liable for the full extent of the claimant’s damage
What is the rule for loss of a chance of recovery?
If there is an indeterminate cause of the damage (e.g hospital failing to correctly diagnose and treat a patient and the chance of recovery was assessable as a percentage) - there will be no recovery on the basis of loss of a chance.
What should be noted about informed consent?
Concept of informed consent - in a situation where required surgery carries a risk, the defendant should warn the claimant of the risk prior to the surgery.
What is the general principle behind indeterminate causes?
In some cases, there may be more than one negligent defendant, but the claimant may not be able to prove that any D caused the harm on the balance of probabilities.
In these circumstances, the court would apply the ‘material increase in the risk’ approach and find both defendants liable.
What is the established test for determining causation in law (remoteness in damage)?
Foreseeability - the damage that occurs should be of a type that is reasonably foreseeable.
The specific type of damage does not have to be predicted, but if the type of damage is not foreseeable, the claim will fail.
What should be noted about foreseeability to determine remoteness of damage?
The manner in which the damage occurred does not have to be exact .
It is enough that damage of the type suffered could be foreseen.
NOTE: It is the type of damage that must be foreseeable (e.g property damage), not the extent of the damage (e.g the value of property damaged).
What is the exception to reasonable foreseeability?
The eggshell skull rule - a victim is taken as they are found. If the victim is more susceptible to a type of injury, the defendant will be liable for all injury caused.
What is important to note re intervening acts (novus)?
When evaluating whether there is a claim, it is important to consider if there is any subsequent event that may break the chain of causation between D’s breach of duty and the damage caused.
If novus can be identified, the claim will fail.
What is important to consider for actions by the claimant as a novus?
- Criminal actions committed by the claimant will break the chain of causation
- Suicide almost certainly will not
- Factors that impact on this include: the degree of negligence and whether it is related in some way to the original injury caused by the defendant.
Merely unreasonable conduct by the claimant will not be sufficient.
What is important to consider for actions by third parties as a novus?
Look out for tortious conduct of third parties (e.g negligence).
If a third party also behaved negligently, then their behaviour may break the chain of causation.
You need to consider whether the third-party negligence was greater than the original harm.
