Causation Flashcards
What causation is required for liability in negligence?
As in criminal, both factual and legal causation is required in tort to show that a defendant is liable for the loss caused to the claimant.
Factual = but for the defendant’s negligent act or omission, would the claimant have suffered the loss suffered in the way it was suffered at the time?
Legal causation = was there any intervening factor that meant that D’s act or omission was no longer the substantial and operating cause of the loss to C?
The standard of proof is the BALANCE OF PROBABILITIES (e.g more likely than not, 50%)
Factual Causation
SINGULAR CAUSE
- But for D’s negligent act or omission, would C have suffered in that way and at the time it was suffered? If no, claim fails.
PROFESSIONAL NEGLIGENCE - ADVISE NOT GIVEN
- If the correct advice had been given, on the balance of probabilities, the claimant would not have had the treatment or would have postponed the treatment to consider.
MULTIPLE CAUSES
- Where there are multiple possible causes of the loss, e.g car is hit in crash by two other vehicles and it is impossible, medically, to attribute each injury to each driver.
- In those cases, both defendants will be liable provided that their action or omission materially contributed to the loss.
ASBESTOS / MESOTHELIOMA CASES
- on the balance of probabilities, did D’s actions materially increase the risk of C’s loss.
- used only for these cases, where multiple employers exposed the employee to asbestos and they subsequently developed lung cancer.
Apportionment
Where there are multiple causes of loss, the court can apportion liability. e.g for both drivers, will be split according to their contribution to harm.
In mesothelioma cases, the employers will be jointly and severally liable as a general rule but can recover contributions from one another.
LEGAL CAUSATION
Has there been a novus actus interveniens to break the chain of causation? If yes, D is only liable up to the point that the novus actus occurred.
Intervening events considered on other cards.
NOVUS ACTUS INTERVENIENS - ACTS OF THE CLAIMANT
Thin skull rule applies, must take victim as you find them.
Will only break the chain if C’s action was HIGHLY unreasonable.
NOVUS ACTUS INTERVENIENS - ACTS OF GOD
Only break the chain if an exceptional natural event that is unforeseeable at the time of negligence.
NOVUS ACTUS INTERVENIENS - THIRD PARTIES
Only break the chain if the act of the third party was highly unforeseeable.
Negligent medical treatment will only break the chain if it is SO GROSS and EGREGIOUS that it is unforeseeable.
