causation

Question 1

what are the two types of causation?

Answer 1

factual and legal causation

Question 2

what elements are needed to prove negligence?

Answer 2

recognised loss or damage
duty
breach
causation
remoteness
defences

Question 3

what is factual causation?

Answer 3

but for the D’s breach they would not have suffered their loss

Question 4

what is the standard of proof for causation in tort law?

Answer 4

on the balance of probabilities (greater than 50%)

Question 5

when does the material contribution test apply?

Answer 5

when there are 2 or more causes operating together to cause the loss and impossible to tell what extent the D’s actions caused the loss

Question 6

how can a C prove factual causation in clinical negligence where breach is a failure to advise on risks?

Answer 6

but, for test is satisfied if can prove on balance of probabilities if warned of the risk they would not have had the operation or deferred it to a later date

Question 7

when is the material contribution test applied to factual causation?

Answer 7

when there is more than one cause of the C’s loss, and the causes were acting together (cumulatively) to cause the loss

Question 8

what does ‘by material contribution’ mean? (Bonnington)

Answer 8

the court meant a ‘more than negligible’ contribution to the loss

Question 9

what types of cases does material contribution test apply to? (what type of causes)

Answer 9

sequential contribution causes and simultaneous cumulative causes

Question 10

what medical condition does material contribution test apply to?

Answer 10

only to industrial disease, single agency cases
mesothelioma cases (lung disease caused by asbestos)

Question 11

what does C need to show for material increase in risk test?

Answer 11

C needs to show D’s breach materially increased risk of harm suffered by D

Question 12

what is loss of chance?

Answer 12

proving there was a real and substantial chance

Question 13

what cases does loss of chance argument apply to?

Answer 13

pure economic loss cases

Question 14

what is apportionment?

Answer 14

dividing liability amongst Ds when there are multiple tortious factors contributing to C’s loss

Question 15

when do you work out apportionment? (at what stage in the negligence sequent)

Answer 15

after factual causation has been proven

Question 16

what does s3 compensation act 2006 say about apportionment?

Answer 16

in mesothelioma cases Ds are jointly and severally liable. meaning that any or all of negligent employers who expose C to asbestos will be liable to C for the whole sum of damages

Question 17

for the law on multiple sufficient causes if the second D has not caused any additional damage to D - what is their liability?

Answer 17

not liable - the first D is held liable

Question 18

if the second event is tortious what happens on multiple sufficient causes?

Answer 18

first D is liable for the original damage past the point of the second event. second D is liable for any additional damage.

Question 19

if the second event is naturally occurring, what is the first Ds liability?

Answer 19

1st D is liable for damage up to the natural event

Question 20

what is the key difference between factual and legal causation?

Answer 20

factual causation deals with establishing the link between the breach and the damage, whereas legal causation involves considering whether there are any grounds upon which the link should be regarded as having been broken.

Question 21

what is a novus actus interveniens?

Answer 21

break in the chain of causation (idea that subsequent events that occur after the breach may break the chain of causation)

Question 22

what are the 3 types of novus actus interveniens?

Answer 22

acts of god/natural events
acts of third party
acts of the claimant

Question 23

when does an act of god or natural event break the chain of causation?

Answer 23

if it is some exceptional natural event eg, being struck by lightning, drowning in a flood ect

Question 24

when does an act of third party break the chain of causation?

Answer 24

if it was highly unforeseeable (something very unlikely to happen as a result of the D’s negligence)

Question 25

when does an act of third party: medical treatment break the chain of causation?

Answer 25

the medical treatment will not break the chain unless it is so gross and egregious as to be unforeseeable.

Question 26

when does the acts of the claimant break the chain of causation?

Answer 26

the act must be highly unreasonable

Question 27

what is the effect of a novus actus interveniens on the D’s liability?

Answer 27

they are held liable up until the break in the chain of causation (so they are responsible for any loss before the novus actus interveniens)