Causation Flashcards
What is the first question that needs to be asked when dealing with causation?
‘As a matter of fact, was the defendant’s negligence a cause of the claimant’s damage?’
What is the test for causation in fact?
The ‘but for’ test?
What is the ‘but for’ test?
But for the defendant’s breach of duty, would the harm to the claimant have occurred?
If the answer to the question is yes – the harm would still have occurred in any event – then
the claimant has failed to establish causation.
If the answer to the question is no – the harm would not have occurred but for the defendant’s
negligence – then causation is satisfied.
What is the burden of proof for causation?
The standard of proof is on a
balance of probabilities, ie ‘more likely than not’.
What happens in case of multiple causes?
The claimant need not show that
the defendant’s breach of duty was the only cause of the damage to the claimant, or even the main cause. The claimant simply has to show that it materially contributed to the damage.
What happens in the case of material increase in risk of injury?
The material increase in risk approach is strictly limited to cases of scientific uncertainty and it appears that mesothelioma may be the only case of such scientific uncertainty currently recognised.
What happens when the claimant suffers more than one injury, one after the other?
Where a claimant (or his property) has already suffered damage, a later defendant who
causes a subsequent injury should be liable only to the extent that he makes the claimant’s damage worse.
What happens when the injury to the claimant is divisible?
Where the court has evidence which will enable it to divide up the injury suffered by the
claimant, it will apportion the damages accordingly.
What happens when two or more people are responsible for the same damage?
Where two (or more) defendants are liable to the claimant in respect of the same damage, each defendant is liable to the claimant in full. The claimant will be able to recover full damages from one defendant even if the other is insolvent or untraceable.
Under the Civil Liability (Contribution) Act 1978, a person (D1) liable for any damage suffered by another person (C) may recover a contribution from any other person (D2) liable for the same damage.
Under ss. 1(1) and 2(1) of the Civil Liability (Contribution) Act 1978, the court has the power to apportion the damage between defendants.
When do the actions of a third party constitute an intervening act?
The instinctive interventions of a third party do not break the chain of causation.
The chain of causation is unlikely to be broken by a negligent action of a third party which the
defendant ought to have foreseen as a likely consequence of his negligence.
It is more likely that the conduct of a third party that is reckless or intentional rather than just
negligent will be treated as a novus actus interveniens.
When does negligent medical treatment constitute an intervening act?
Case law indicates that
negligent medical treatment is unlikely to break the chain of causation. This is because a
defendant who negligently causes an injury ought to foresee that medical treatment will then
be necessary and that this carries some risk that the treatment could be negligent.
Medical grossly negligent treatment, amounting to a completely inappropriate reaction to the claimant’s injury, probably would break the chain.
When do the actions of a claimant constitute an intervening act?
To amount to a novus actus interveniens the claimant’s
act has to be entirely unreasonable in all the circumstances, otherwise the act will simply be a natural event and will not break the chain of causation.
What is the test for remoteness of damage?
The Wagon Mound (No 1) held that the test for remoteness of damage is one of reasonable foreseeability. The court should ask: Is the damage of such a kind that the reasonable person would have foreseen it?
What is the ‘similar type’ proviso for remoteness of damage?
If the claimant suffers an injury of a type which was foreseeable, it does not matter that the
precise way in which the claimant was injured was not foreseeable.
What is the ‘egg-shell skull’ proviso for the remoteness of damage?
If the claimant suffers a particular disability or has a particular condition, they can recover in full from the defendant for their losses, even though the defendant could not have foreseen the full extent of the claimant’s loss.
