Causation Flashcards
What are the two types of causation that need to be considered?
Factual causation: deals with establishing the link between the breach and damage.
Legal causation: considers any grounds upon which the link should be regarded as being broken.
What is the relevant test for factual causation?
The but for test'. The claimant must prove on the balance of probabilities that but for’ the defendants conduct the claimant would not have suffered loss.
What does balance of probabilities mean?
There must be a more than 50% chance that the defendant’s breach caused the claimants loss.
In clinical negligence cases, how can the `but for’ test be satisfied where the breach is a failure to advise on risks?
The claimant must prove they would not have had the treatment or would have deferred the treatment had they been told about the risk.
What are the exceptions where the `but for’ test cannot be satisfied?
- Material Contribution Test
- Material increase in Risk Test
- Loss of Chance
What is the `material contribution test’ and what must the claimant prove?
This applies where there is more than one cause of the claimants loss and the causes acted cumulatively together to cause the loss.
The claimant must prove that on the balance of probabilities, did the defendant’s breach make a material contribution to the loss?
What is the material increase in risk test?
On the balance of probabilities, the defendant’s breach materially increased the risk of the claimants injury.
The claimant must prove that the breach made a greater than de minimus contribution to the risk.
Mostly applied to mesothelioma and asbestos cases
Confined to single agency cases only (can only be one causal agent e.g. dust)
What is the loss of chance exception?
For example, a child falls from a tree and breaks their leg. The hospital is negligent in their treatment, however, evidence indicates there was a 75% risk that the broken leg would have left the claimant paralyzed even without the negligence. The claimant argues they have lost a 25% chance of recovery.
This does not apply to medical negligence cases. It only applies to pure economic loss.
What is apportionment?
Once factual causation has been established and there are multiple tortious factors that caused the loss, the courts apportion liability between the defendants.
How is liability apportioned in mesothelioma cases?
Under section 3 of the Compensation Act 2006, defendants are jointly and severally liable.
What does jointly and severally liable mean?
This means that any or all of the negligent employers who exposed the claimant to asbestos will be liable to the claimant for the whole sum of damages, but they can recover contributions from each other if necessary.
How is liability apportioned where there are multiple sufficient causes?
If the second defendant has not caused any additional damage to the claimant, they will not be liable.
If the second event is tortious, the first defendant is liable for the original damage past the point of the second event. The second defendant is liable for any additional damage.
If the second event is naturally occurring, the defendant is liable for damage only up to the natural event.
What is legal causation?
This is where there is a `novus actus’ that breaks the chain of causation.
The defendant will still be responsible for any loss before the novus actus event but will not be responsible for any loss after it.
What are the three types of novus actus?
- Acts of God or natural events
- Acts of third parties
- Acts of the claimant
When will an act of God break the chain of causation?
If there is some exceptional natural event.
Natural events will not break the chain of causation if they could have been foreseen and the defendant should have taken them into account as events that were likely to happen.
