CAUSATION Flashcards
WHAT MUST THE CLAIMANT ESTABLISH?
That there is causation in fact and causation in law
WHAT DOES CAUSATION IN FACT REQUIRE?
Evidence of a direct causal link between the defendant’s negligent act and the damage suffered by the claimant
It also requires the claimant to establish a chain of causation and then prove that any intervening acts did not break the chain
WHAT DOES CAUSATION IN LAW REQUIRE?
That the damage is not too remote from the negligence
WHAT IS FACTUAL CAUSATION?
The issue of whether the defendant’s breach factually caused the damage to the claimant
WHAT IS THE BASIC TEST FOR FACTUAL CAUSATION?
The ‘but for’ test – would the claimant have suffered the loss but for the defendant’s breach?
WHAT IS THE BASIC TEST FOR FACTUAL CAUSATION?
The ‘but for’ test – would the claimant have suffered the loss but for the defendant’s breach?
HOW DOES BARNETT V CHELSEA AND KENSINGTON HOSPITAL MANAGEMENT COMMITTEE [1969] ILLUSTRATE THE ‘BUT FOR’ TEST?
There is no cure for arsenic poisoning and so the doctor’s negligence did not cause the death of Mr Barnett as he would have died anyway
WHAT DOES THE ‘BUT FOR’ TEST LOOK LIKE IN PRACTICE?
‘More probable than not’
WHY WAS THE DEFENDANT IN PAGE V SMITH (NO. 2) [1996] HELD LIABLE FOR DAMAGES?
The High Court Judge was ‘satisfied on the balance of probabilities that the defendant’s negligence materially contributed to the recrudescence of the Chronic Fatigue Syndrome
The words ‘on the balance of probabilities’ shows that it was more than probable than not that the defendant’s negligence had caused the injury was sufficient to establish causation in fact
WHAT IS A KEY ISSUE IN RESPECT OF MULTIPLE POTENTIAL CAUSES OF HARM?
Whether it is possible to divide the injury into portions, each clearly caused by different events/ tortfeasors
WHAT HAPPENS UNDER NORMAL CIRCUMSTANCES WHERE THE INJURY IS INDIVISIBLE?
The ‘but for’ test strictly applies
WHAT HAPPENED IN WILSHER V ESSEX AREA HEALTH AUTHORITY [1986]?
The negligently administered oxygen was one of five possible causes of the baby’s blindness and therefore a 20% chance that it caused the harm.
It was held that the claimant bears the burden of proof of proving that it was ‘more than probable than not’ that the defendant’s acts caused the harm and so the health authority was not liable here
WHAT IS THE SIMPLE ARITHMETIC CALCULATION RELEVANT TO CASES WHERE THE INJURY IS INDIVISIBLE?
If there is more than a 50% chance that the defendant’s actions caused the harm, they will be liable for it
If there is less than a 50% chance that the defendant’s actions caused the harm, they will not be liable for it
WHERE THERE ARE MULTIPLE CAUSES OF HARM, WHAT WOULD THE ‘BUT FOR’ TEST PRODUCE?
Unjust results if the defendant’s breach has only contributed to (rather than being the sole cause of) the loss suffered by the claimant
WHAT IS THE TRADITIONAL JUDICIAL APPROACH WHEN THERE ARE MULTIPLE CAUSES OF HARM?
To adapt the test for causation in fact so that the defendant would be liable to a claimant if the defendant’s act made a ‘material contribution’ to the risk that the claimant will suffer harm
WHAT IS MESOTHELIOMA?
A lung condition that renders patients unable to breathe and it is invariably fatal. It is known to be caused to exposure to fibres or dust from asbestos
WHY WERE TWO SPECIAL RULES DEVELOPED BY THE COURTS TO ENSURE MESOTHELIOMA VICTIMS ARE COMPENSATED?
- Due to the difficulty for a claimant to establish which of a number of possible exposures to asbestos caused the harm; and
- Due to the extensive time delay between potential exposure to the asbestos and the ultimate contraction of the disease