Causation Flashcards
What is the relevance of causation for the law of negligence?
The breach must cause the damage to the claimant, both in fact and in law.
What is the test of factual causation?
But for the defendant’s breach of duty, would the claimant have suffered their loss at that time and in what way.
To be judged on the balance of probabilities
What happens for factual causation if there are two probable causes acting cumulatively together?
Material contribution test is used - if D’s breach could be proved to have materially contributed to the claimant’s loss, then D will be liable.
Material contribution = more than negligible
What happens for factual causation if neither the but for test or material contribution test is satisfied?
The material increase in risk test can be used.
Only likely available where industrial disease, single agency cases
What is the material increase in risk test?
Breach has materially increased risk of the claimant’s injury (the contribution to the risk must be greater than de minimus)
What test is available only for purely economic loss?
Loss of chance test - must be a real and substantial chance that the seller would have agreed to the clause
What will happen where there are multiple tortious factors which are known to have caused the loss?
The courts will apportion liability between the defendants so the claimant receives compensation whilst recognising the respective faults of the defendants
How are defendant’s liable for mesothelioma cases under the Compensation Act 2006?
Jointly and severally liable
What happens if there a two defendant’s who both cause tortious events in succession to each other?
The first defendant is liable for initial injuries past the point of the second tort.
The second defendant is liable for any additional losses
What happens if there is a tort which is followed by a natural event that also causes damage?
Defendant will be liable for damage up to natural event
What is legal causation concerned with?
Even if factual causation established, still needs to be considered if D should face liability in law.
Legal causation considers if there are any intervening acts which will breach the chain of causation and allow the defendant to escape liability.
What are three types of novus actus interveniens?
- acts of god or natural events
- acts of third parties
- acts of the claimant
What affect will an act of god/natural events have on legal causation?
It will break the chain of causation only if it is some exceptional natural event eg being struck by lightening, drowning in a flood, or the onset of certain diseases.
They must not be foreseeable (if foreseeable D should have taken them into account.)
When will acts of third parties break the chain of causation?
If they are highly unforeseeable ie something that was highly unlikely to happen as a result of the defendant’s negligence
What if the act of a third party was medical treatment? What effect is that likely to have on breaking the chain of causation?
Courts are reluctant to hold that it breaks the chain of causation unless the treatment is so gross and egregious as to be unforeseeable
