3 - TORT - Causation Flashcards
What must one prove for negligence?
Duty of Care
Breach
Causation
Remoteness
What is the meaning of ‘res ipsa loquitur’?
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
Large sacks of sugar fell on C 🤕🍭
What 2 things are required to prove causation?
- Factual causation
- Legal causation
What is factual causation and how is it satisfied?
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
What cases show the ‘but for’ test?
(Both are negative)
- hospital failed to carry out proper examination but evidence showed that V would have died either way - no causation ⏲️🧑⚕️☠️
- baby went blind any one of causes independently could have caused the blindness, one of the potential 5 causes was negligence. Only 20% chance of negligence therefore no causation.
👶🎰🦯
Where breach is failure to advise on risks, how is the ‘but for’ test satisfied?
Where C can prove they wouldn’t have had the treatment or would’ve deferred it had they been told
What are cumulative causes?
more than one cause of the loss and the causes were operating together to cause the loss.
What test is used to satisfy factual causation for cumulative causes operating together?
-
more than negligible contribution
Also applies to sequential cumulative cases
What cases show cumulative causes?
- respiratory disease cause by exposure to dust 👷💨only some of the exposure was tortious. The disease was caused by the cumulative effect of both sets of dust. more than negligible contribution therefore factory owner liable 🌬️😷
- C choked on her own vomit caused by progression of disease and negligent act. more than negligible contribution therefore doctor liable 🧑⚕️ 🤮☠️
What is a multiple agency case?
Each potential cause is unconnected but independently sufficient to cause harm. Therefore don’t know which act caused the harm
- baby went blind any one of causes independently could have caused the blindness, one of the potential 5 causes was negligence. Only 20% chance of negligence therefore no causation.
🎰👶🦯
What are single agency cases?
Where disease can be caused by one exposure (i.e. cumulative exposure is not required for disease) but C is exposed to both tortious and non-tortious exposures. 🎯
What test is used for factual causation for industrial disease, single agency cases?
Material increase in risk test
What is the case for single agency cases?
C got a skin disease from exposure to brick dust. Working with brick was fine, but not providing showers was not fine. Medical knowledge did not know whether exposure was cumulative or if a ‘one off’ exposure was enough. 🚿🧱👋
Materially increased risk because of increased exposure.
Applies to asbestos - different employers but as long as current employer ‘Materially increased risk’ they will be liable
What must be applied if necessary once factual causation is satisfied, where there are multiple tortious factors?
Apportionment: apportion liability between defendants
In abestos cases, D’s are jointly and severally liable
Is ‘loss of chance’ a potential claim?
🎲
No - D argued that their negligent care for their broken leg had robbed them of a loss of chance of a 25% chance of avoiding paralysis.
🦵🎲
What happens if two incidents cause the same damage?
No damage could be held for 2nd event
Rolls Royce needed respraying after the first incident at the time the second incident occurred 🚘👨🎨
What happens if there’s an intervening cause that wipes out the original harm?
Could still be liable for the original harm
- D caused C’s injured leg, C then had leg removed following being shot. D still liable even though leg no longer injured.
🔫🦵🦿 - D gave C a bad back. D then suffered a further non-tortious back injury. D was liable up to the point of the second injury
🩻⏲️🏋️♂️
How does one prove legal causation?
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)
What case shows acts of god?
Ship damaged by collision with D and taken for repair. On the way it suffered storm damage. D liable for collision but not storm damage.
🛳️⏲️🌪️🧔♀️
What case shows acts of third parties?
car crash followed by poor handling of resultant traffic by police resulted in police officer being hurt. Broke chain of causation.
🚗🤡👮🦼
Child not referred by GP resulted in hip injury. Treatment eventually received by hospital was also negligent. Held hospital negligence was not enough to absolve GP’s negligence.
🥼🤡➡️🧑⚕️🥴
What case shows acts of claimants?
D caused C’s injured leg. C tried to walk downstairs without a handrail, his leg gave way and he broke his ankle. C’s act was unreasonable so broke the chain of causation.
🦵🥴🪜
D caused C’s injured Neck. C tried to walk downstairs with help from son. she couldn’t see, slipped and broke her ankle. C’s act was not unreasonable.🦵😉🪜
What is ‘remoteness’
D may be the legal and factual cause of C’s loss, but how liable is D for those losses?
Does C need to show only that some harm would occur, or do they need to show that the type of harm would occur?
Type of harm
What cases cover type of harm?
- Oil spill, liable for clean up but not for damage when oil set fire (which was unlikely)
🛢️✅🔥❌ - C got a disease from rat’s urine. Found rat bites were likely, but not rat’s urine.
🐀✅🫛❌ - Fan heater in Van didn’t work. Likely that some cold injury would occur therefore, frostbite fell within this sort of injury
🚚🪭🥶✅✅
Do you need to see the exact way damage will occur?
(Inc. case)
No
- oil lams left around a hole. Child dropped lamp into hole causing an explosion and burns. Burns were likely even if exact cause was not.
🪔🕳️🔥
Do you need to foresee the extent of the damage?
No, once the damage is reasonably forseable, D is liable for full extent of damage.
- Small explosion was foreseeable but not the huge one that happened.
🔥💥 - D Burnt C’s skin provoking onset of pre-existing cancer. Once burn foreseeable they’re liable to everything that follows (thin skull rule).
🔥🩹☠️
