causation Flashcards
Which 2 points are considered when determining causation?
1- factual causation; and
—> establishing link between breach and damage
2- legal causation
—> if there are grounds upon which the link has been broken
What does the ‘but for’ test mean when considering factual causation?
on the balance of probabilities (+50%), but for the defendant’s breach of duty, would the claimant have suffered their loss at that time and in that way?
– If no, factual causation is satisfied. The claimant would not have suffered their loss were it not for the defendant’s breach.
What factors may be a factual causation where the ‘but for’ test cannot be satisfied?
material contribution (McGhee):
- tortoise act caused more than materially contribution (on the balance of probabilities) to the damage
When will the courts apply the material contribution test and what must claimant prove in order to satisfy the test?
The court might apply the material contribution test where there is more than one potential cause of the claimant’s loss, and the causes have acted together to cause the loss. The claimant must prove that the breach made a more than negligible contribution to their loss.
- Court might apply material increase in risk test to single agent industrial disease cases where there is more than one potential cause of the claimant’s loss. The claimant must prove that the breach made a greater than de minimus contribution to the risk.
Define apportionment.
calculation to apply once factual causation has been established.
- Where there are multiple tortious factors, known to have caused part of loss, courts apportion liability between defendants in a way that produces a practical result, providing compensation to C while recognising respective fault of defendants.
What happens in the event of multiple sufficient causes?
events are not linked and there are two or more distinct losses that can be attributable to distinct causes.
- There is more than one defendant each of whom pass the ‘but for’ test, but one action comes after the other (or if the later action is non-tortious, it has caused the subsequent harm).
Define legal causation.
Once factual causation established, necessary to see if, as a matter of law, D may be held liable.
- D is not liable for absolutely everything that follows from their breach.
What are the 3 types of intervening events?
1- Acts of God
2- Acts of third parties
3- Acts of Claimant (act must be highly unreasonable)
What is meant by acts of God?
natural events- breaks the chain of causation if it is some exceptional natural event.
e.g. lightning / storms
BUT:
Natural events will not break chain of causation if they could have been foreseen & D should have taken them into account as events that were likely to happen.
What is meant by acts of third party?
Where the subsequent event is the act of a third part. the courts have viewed it as breaking the chain of causation if it was highly unforeseeable
How does acts of third parties in medical treatment differ?
The medical treatment will not break the chain unless it is so gross and egregious as to be unforeseeable:
What is the effect of novus actus interveniens?
D is liable for losses up until there is a novus cactus, they are then not liable for losses past that point.
