3. Negligence (Causation)

Question 1

What is required for causation?

Answer 1

1) Actual causation (causation in fact)
- ‘But for’ test
- ‘Substantial factor’ test
- Alternatives causes approach (Summers v Tice)

2) Proximate causation (legal causation)
- Direct cause (NO interruption in chain of events)
- Indirect cause (Interruption in chain of events; Intervening force comes into motion and combines with D’s act)

3) By preponderance of evidence

=> Conduct was cause of injury

Question 2

What is the ‘but for’ test?

Answer 2

Single cause

• Act/Omission to act is cause in fact of injury
• Injury would not have occurred ‘but for’ the act

Joint causes

• Several acts combine to cause injury BUT none of the act standing alone would have been sufficient
• Injury would not have occurred ‘but for’ the acts

Question 3

What is the ‘substantial factor’ test?

Answer 3

1) Several acts combine to cause injury
2) Either act standing alone would have been sufficient (substantial factor in causing injury)
3) Liable act is known

Question 4

What is the alternative causes approach (Summers v Tice)?

Answer 4

1) Several acts combine to cause injury
2) Either act standing alone would have been sufficient
3) Liable act is NOT known

4) Each D must prove he is NOT negligent (burden of proof => Defendants)
- Otherwise ALL Ds are liable

Question 5

What is proximate causation?

Answer 5

Defendant is liable for all harmful results;

• Normal incidents of D’s acts
• Within increased risk caused by D’s acts

Question 6

How may Defendant be liable for direct proximate cause?

Answer 6

Foreseeable harmful result

• Even if occurred in unusual timing/manner
• NO uninterrupted chain of events

NOT unforeseeable harmful result
- NO summary judgment (material fact in dispute - foreseeability)

Question 7

How may original Defendant be liable for indirect proximate cause?

Answer 7

Foreseeable intervening force (D’s act created normal response; almost always foreseeable)

• Subsequent medical malpractice
• Negligent rescuer
• Others’ efforts to protect person/property
• Others’ reactions
• Subsequent diseases (D places P in weakened condition => Causes diseases)
• Subsequent accidents (P’s original injury was substantial factor)
• NOT unforeseeable result

Independent intervening force (D’s act ‘increased’ risk of harm caused by forces => Foreseeable)

• TP’s negligent act
• TP’s crimes/intentional torts
• Act of God

Unforeseeable intervening force

• Foreseeable result (courts tend to favour foreseeable result rather than unforeseeable force)
• NOT TP’s crime/intentional tort
• NOT unforeseeable result (becomes superseding force that breaks causal connection between D’s act + P’s injury)

Question 8

What is the ‘Eggshell-Skull Plaintiff’ Rule?

Answer 8

1) D takes P as he finds him

2) D’s act aggravates P’s existing condition
- Extent/severity/unforeseeability of damages NOT relevant

=> D is liable for ALL damages