Causation Flashcards
what is factual causation in tort?
but for test. on a balance of probabilities.
what is the but for test when there is a breach and that breach is a failure to advise on risks?
but for test is satisfied if the claimant can prove that on a balance of probabilities that if they had been warned of the risk, they would not have had the operation or deferred it to a later date.
when can loss of chance be argued?
pure economic loss.
what is the material contribution 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.
what is the material increase in risk test?
applies to industrial disease cases like mesothelioma (asbestos)
The court might apply the 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.
Applies in cases where the breach increases the risk of harm but does not necessarily contribute to it.
Applicable to single agengy industrial disease cases only.
what is the law of mutiple sufficient causes?
- if the second defendant did not cause any additional damage they are not liable.
- second d is liable if there are additional losses.
- if a tort was followed by a natural event, D is liable for damage up to the natural event.
what is legal causation in tort?
considers whether there are any grounds upon which the link should be regarded as being broken.
- acts of god or natural events.
- acts of third parties- break chain if it was highly unforeseeable.
- acts of the claimant- act must be highly unreasonable to break chain.
will medical treatment break the chain of causation in tort?
only when it is so gross and egregious as to be unforeseeable.
what is the outcome if the risk of damage without the breach is 50 percent or more?
claimant will fail to establish factual causation.
