3 - TORT - Factual Causation Flashcards
What must one prove for negligence?
Duty of Care
Breach
Causation
Remoteness
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 🚘👨🎨
