Causation Flashcards
What is causation?
Connection between misconduct and damage.
Does an intentional act by a victim necessarily break the chain of causation?
No.
What is the difference between establishing causation and limiting causation?
Establishing causation is factual causation, and is determined using the “but for” test. Limiting causation is legal causation and talks about remoteness (foreseeability, probability, scope of the rule, and directness).
What are the problems with the “but for” test and determining factual causation?
- May be more than one cause.
- Provides only for all-or-nothing.
- Considers all consequences equally.
What is the requirement for causation in France?
That it be certain and direct.
Is the scope of the rule theory applied in France?
No.
What theory is applied to causation in France?
Adequacy theory – must be foreseeable.
What is the doctrine of efficient causation?
Look for most proximate cause.
What country uses the doctrine of efficient causation as a limiting mechanism?
France.
What are the two steps in causation in Germany?
- Establishing liability.
2. Determining the extent of the liability.
What theories does Germany use with regard to causation?
Adequacy theory, scope of the rule theory, and policy considerations.
How is causation considered in England?
The “but for” test on a “balance of probabilities.”
What was the test for causation in England under Re Polemis?
Foreseeabiltiy of any damage.
How was Re Polemis tightened in Wagon Mound I?
Scope of foreseeability relevant – remoteness.
What case seemingly contradicts the scope of foreseeability set out in Wagon Mound I?
Hughes v Lord Advocate (manhole case).
How does France shift the burden of proving causation?
- Proof by exclusion – no other possibility.
- Policy presumption – criminal fault means civil fault.
- Loi Badinter – absolute liability if vehicle is involved.
How does Germany adjust the burden of proving causation?
- If there is prima facie case, causation is assumed.
- Reversal Rule if defendant acted negligently, there is violation of statutory duty, there is the breach of a safety duty, or a product liability claim.
How does England accommodate plaintiffs with regard to proving causation?
- If there is a prima facie case.
- Material contribution to damage.
- Material contribution to risk.
- Doctor’s duty to inform – if patient would have undergone procedure anyway.
How does France deal with multiple causes?
Each party is fully liable, right of recourse against each other.
How does Germany deal with multiple causes?
- If jointly committed, joint and several liability.
2. If independently committed, several liability.
How does England deal with multiple causes?
- If jointly committed, joint and several liability.
- If independently committed, several liability.
With material contribution to risk, only proportionately liable.
How do all three systems deal with successive causes?
If a second event causes the same damage as the first event, the first tortfeasor is still liable.
How do the three systems differ when dealing with successive causes?
When there is no one at fault for the second damage – in these cases, in France, the first tortfeasor is still liable; however, in Germany and England, the first tortfeasor is off the hook.
Does France allow loss of chance?
Yes.
Does Germany allow loss of chance?
No, but compensate with lower burden of proof, reversal rule, and gross negligence.
Does England allow loss of chance?
Yes in contractual and financial-loss situations, but not in medical-malpractice situations.
What case talks about taking victims as they are and what is the doctrine called?
Smith v Leech Brain, thin-skull doctrine.
