Causation Flashcards
Causation
- Factual
- Legal
What is the ‘But For’ test?
Factual causation
But for the defendant’s breach, would the claimant have suffered their loss at that time and in that way
yes –> no factual causation
no –> factual causation established.
More than a 50% chance breach caused loss. A small chance accident would have happened anyway does not mean the claim would fail.
What does the ‘But For’ test require regarding the chance of loss?
Factual causation
More than 50% chance breach caused loss
But for test in relation to failure to warn
Factual causation
But for test is satisfied if the C can prove on the balance of probabilities that they would not have had the operation or would have deferred it if they had been warned - Chester
What is the Material Contribution Test?
Factual causation
Multiple causes acting together to cause loss - satisfied if the breach had a more than negligble contribution to the damage.
In which case was the Material Contribution Test established?
Factual causation
Bonnington Castings v Wardlaw [1956]
What does the Material Increase in Risk Test pertain to?
Factual causation
Only in single agent industrial disaster cases
Limited to mesothelioma and lung cancer/asthma cases, assessing whether breach materially increased risk of injury.
Material increase in risk test
Factual causation
Did the breach materially increase risk of injury – contribution greater than de minimus
This test applies when it is difficult to differentiate between tortious and non-tortious causes.
What does ‘Loss of Chance’ refer to?
Factual causation
Preventing chance of recovery/victory – allowed in pure economic loss cases (Allied Maples Group v Simmons & Simmons)
How do courts handle multiple sufficient causes?
Factual causation
Courts apportion liability according to respective fault
This requires a reasoned choice regarding the contributions of each cause.
What principle applies if a second defendant has not caused any additional damage?
Factual causation
Second defendant not liable if they have not caused any additional damage
This principle ensures that liability is only assigned to those who have contributed to the harm.
What is the liability of the first defendant in cases with two tortious events?
Factual causation
First defendant is liable for initial injuries past the point of the second event
This holds the first tortfeasor responsible for the consequences of their actions.
What happens when a tort is followed by a natural event?
Factual causation
Defendant liable for damage up to the natural event
This principle limits liability to the harm caused before the intervening event.
Examples of material contribution factual causation
Factual causation
- Bonnington Castings v Wardlaw - tortious and non-tortious dust, couldn’t prove which had caused the illness but they were acting cumulatively
- Bailey v MoD - weakness, negligence and vomit all caused to death. Negligence made a more than negligable contribution to the death, therefore factual causation satisfied
Legal causation - NAIs
- acts of god
- acts of 3P
- acts of the claimant
Act of God
Legal causation
must be an exceptional natural event
e.g Carlslogie Steamship v Royal Norwegian Govt - Ds liable for damage arising from damage but not from the storm
How do courts view medical treatment in relation to breaking the chain of causation?
Reluctant to hold medical treatment as breaking chain – unless it is so gross and egregious as to be unforeseeable
Medical negligence must be extreme to sever the causal link.
Is a passer-by trying to help considered a foreseeable act?
Yes, a passer-by trying to help is foreseeable
The actions of bystanders who intervene are typically anticipated.
Acts of claimant
Legal causation
must be highly unreasoanble
Claimant’s unreasonable actions can sometimes break the chain of causation.
What is the legal implication of a novus actus interveniens?
Defendant still responsible for loss before novus actus but not after
A new intervening act can sever the defendant’s liability for subsequent losses.
Act of 3P
Legal causation
must be highly unforeseeable
