3. Causation Flashcards
What is factual causation?
Whether C would have suffered loss but for D’s breach.
What is the but for test?
Whether C would have suffered loss but for D’s breach.
What is clinical causation?
Whether C would not have had the treatment if told of risk.
What is industry disease causation?
Whether D’s breach materially increased C’s risk of injury.
The Supreme Court allowed the claimant to
rely upon the material increase in risk approach and found the defendant liable.
However, the judgments in the case suggest that the principle of material increase in risk is now strictly limited to cases of scientific uncertainty. Moreover, it appears that mesothelioma may be the only case of such scientific uncertainty currently recognised.
What is multiple causes causation?
Whether D’s breach had a material contribution.
u inhale good dust and bad dust, udk which is which, but if it is a case of scientific uncertainty like mesothelioma then u can say that bad dust materially contributed
What is apportionment in causation?
Ds are only liable for injuries they caused if the injury suffered by C is divisible.
where a claimant (or his property) has already suffered damage, a later defendant who causes a subsequent injury should be liable only to the extent that he makes the claimant’s damage worse
What happens if the claimant’s injury is not divisible?
The claimant can recover damages in full from any defendant, but as between defendants the Civil Liability (Contribution) Act 1978 will apply.
Divisible injury: The claimant must sue each defendant separately to recover each defendant’s share. (In Holtby, Mr. Holtby would have to sue each of his former employers separately to get a proportionate amount from each based on their contribution to his cumulative exposure) PROGRESSIVE BUILDUP- asbestesos
Indivisible injury: The claimant can sue any one defendant for the full amount and doesn’t need to pursue each one individually to be fully compensated. (Where two or more persons are liable to the claimant in respect of the same damage) BOTH CAUSATIONS HAPPEN AFTER ONE ANOTHER D1 RESPONSIBLE FOR 90% WHILE D2 RESPONSIBLE FOR 10%
Who has the burden of proving the causal link between the breach and the loss?
The claimant.
What is legal causation?
Whether the harm should be recoverable from D + if any acts break the chain.
What is a third party act in legal causation?
It may break the chain of causation if not a foreseeable consequence of defendant’s negligence, or if the third party acted intentionally or recklessly.
The instinctive interventions of a third party do not break the chain of causation
If the new act of 3rd party is unforeseeable or unreasonable(like a police officer directing against traffic), it will break the chain of causation.
If the new act is foreseeable and a normal response (like other drivers arriving too fast), it does not break the chain, and the original wrongdoer remains partially liable.
What are claimant acts in legal causation?
They may break the chain of causation if entirely unreasonable in all the circumstances.
So, if the claimant’s response after def negligence is a foreseeable, reasonable reaction to the first injury, the chain is intact i.e no break in chain.
If the claimant’s actions are unreasonable or unforeseeable, they might break the chain of causation, ending the defendant’s liability.
BAS FOCUS ON UNREAOSNABLE
What is an act of God in legal causation?
It must be exceptional + unforeseeable natural event.
What is medical treatment in legal causation?
It must be gross or egregious.
What is the test for remoteness?
Whether the type of damage was reasonably foreseeable at the time.
If a reasonable person would not have
foreseen the damage then the claimant cannot recover that damage from the defendant.
Do you need to prove the full extent of harm or exact way it occurred if it was foreseeable?
No.
