Causation Flashcards
What two links must be determined to establish causation?
Factual and legal causation
What first test should be applied to establish factual causation?
The but for test: ‘on the balance of probabilities - but for the defendant’s breach of duty, would the claimant have suffered their loss at that time and in that way’?
No - FC is established
Yes - FC is not satisfied
What does the balance of probabilities mean in terms of the chances?
There must be a more than 50% chance that D’s breach caused the claimant’s loss
Where does the burden of proof lie for causation?
Claimant must prove that but for D’s breach, he would not have had injury. This means a more than 50% chance - more likely than not.
How is the but for test altered for a clinical negligence scenario, where the breach is a failure to advise on risks?
Claimant needs to prove on the balance of probabilities that if they had been warned of the risk, they would not have had the operation, or would have deferred it to a later date.
When is the material contribution test applied?
Applied when there is more than one cause of claimant’s loss - they acted together, cumulatively to cause the loss
Did the defendant’s breach make a material contribution to the loss?
How does the material contribution test define ‘material’?
More than negligible
Where does the material contribution test apply?
Both consecutive and sequential causes working together.
What is the material increase in risk test?
On the balance of probabilities, D’s breach materially increased risk of loss
When is material increase in risk test applied?
Industrial disease, single agency.
E.g. only dust
[Mesothelioma, lung cancer caused by asbestos - main two remits]
When have courts allowed the loss of chance argument?
In cases regarding pure economic loss if there is a real and substantial chance that the opportunity would have materialised.
What is apportionment?
A calculation to apply once factual causation has been established - dividing liability between defendants in a way that produces a practical result.
How is blame apportioned in mesothelioma cases?
All employers are joint and severally liable. But they can recover contributions from each other if needed to make contributions fair.
What happens when there are multiple sufficient causes?
If the second cause causes damage that already effectively existed; no new damage arises.
D1 can continue to be held liable for original injury even if D2 has essentially terminated this.
If D2 is non-tortious, the liability of D1 may end.
What does legal causation consider?
Whether there are any grounds upon which the link should be considered as broken.
