Causation Flashcards
What is the ‘but for test’ in factual causation?
‘But for’ D’s breach of duty, would C’s damage have occurred?
Who has the burden to prove factual causation?
C, on balance of probabilities
What test applies when there are multiple simultaneous causes to C’s harm?
‘Material contribution’ test - D can be one of the people who materially contributes to harm to C
The client’s injury was caused by the breach of duty by the taxi driver but also by the breach of duty by the motorbike driver - One speeding and one ignoring a give way sign
What is the material increase in risk approach?
Applies where scientific uncertainty exists
How is liability determined for a subsequent injury caused by a later D?
Liable only to the extent that they make C’s injury worse
What is the difference between divisible and indivisible injury?
Divisible injury: Proportionate damages
Indivisible injury: Contribution between Ds
Explain a divisible injury scenario
Where multiple Ds contribute to C’s harm, if the loss can be apportioned out so you can see which D is partially responsible for each bit, C can only sue that D for the harm they are responsible for
In other words, C must sue multiple D’s to get 100%
Explain an indivisible injury scenario
Where it is not possible to apportion the blame for C’s injuries (car accident with two Ds), C can obtain 100% damages from one D.
This D would seek a contribution from D2
What is a joint tortfeasor?
A second person who owes and breaches a duty in the same event
Example - The mother also owes a duty to her child and has left the child unrestrained next to a busy road. The mother can therefore be added as a joint tortfeasor / additional defendant
What are intervening acts in relation to legal causation?
Acts that may break the chain of causation
What types of third party intervening acts are there and what are their effects?
Instinctive act of a 3rd party = will not break the chain
Negligent act of a 3rd party = will break the chain if it was not reasonably foreseeable - example (negligent medical treatment after a negligently caused injury won’t break chain, as medical treatment itself is reasonably foreseeable)
Reckless or intentional acts of a 3rd party = will generally break the chain
When can C’s own actions break the chain of causation?
If C’s actions are wholly unreasonable, they will break the chain
Their actions are assessed in relation to reasonableness, rather than foreseeability
What is the basic test for remoteness of damage?
Is the type of damage reasonably foreseeable?
If a reasonable person would not have foreseen the type of damage, it cannot be recovered
What does the ‘similar in type’ proviso mean?
The precise way the type of harm occurred does not need to be foreseeable
What does the ‘egg-shell skull’ rule state?
The precise extent of the harm suffered by C does not need to be foreseeable
Must take the claimant as you find them
