Causation Flashcards
What are the two steps to establish causation?
- Factual causation
- Legal causation
What test is used for factual causation and how does it apply?
‘But for’ test: On balance of probabilities but for D’s breach of duty would C have suffered loss?
The but for test is satisfied on the basis of the balance of probabilities; how does this apply (especially for cases where there are multiple potential causes)?
more than 50% chance
What does the Chester case say about factual causation with regards to a failure to advise?
but for test satisfied if C, if warned, would not have had operation or deferred to a later date
When can factual causation be established where the but for test is not satisfied?
- Material Contribution test
- Material increase in risk
- Loss of chance
What is the material contribution test?
Breach materially contributed to harm
What is meant by material contribution?
‘more than negligible’
Can the material contribution test apply to sequential cumulative causes?
Yes
What cases are material increase in risk used for?
Industrial disease, single agent cases e.g. mesothelioma
What cases may loss of chance be allowed to prove factual causation withotu the but for test?
Pure economic loss where real and substantial chance
What is apportionment?
courts apportion liability between defendants
What is the particular apportionment rule for mesothelioma cases?
Defendants jointly and severally liable (can recover from each other)
Can a defendant be liable for loss caused by a third party after their original tortious act?
Yes if loss still the same
How does liability work where there are multiple sufficient causes?
- D2 not liable if not caused additional damage
- two tortious events - D1 liable for initial injuries past T2, D2 liable for additional losses
- Tort followed by natural event = liable for damage up to natural event
What are the novus actus interveniens for legal causation?
- acts of god
- acts of third parties
- acts of the claimant
