Causation and Remoteness

Question 1

Test for factual causation?

Answer 1

The but for test
- On balance of probabilities – but for defendant’s breach would claimant have suffered the loss
- If no then causation is satisfied
- Burden of proof is on claimant to prove more than 50%

Question 2

Exceptions to the but for test?

Answer 2

Where the but for test cannot be satisfied
EXCEPTIONS
Material contribution test – a more than negligible contribution to the loss.
- Applies in clinical negligence where it may not be but for the reason but could still be more than negligible.
- – IF MULTIPLE CAUSES CUMULATE – IF MORE THAN NEGLIGIBLE
Material increases in risk
- In McGhee – by not providing washing it was on his skin longer.
- Limits to mesothelioma and lung cancer by asbestos.
Loss of chance
- Doesn’t apply in medical negligence but can in PURE ECONOMIC LOSS

Question 3

What is apportionment?

Answer 3

Apportionment – is a calculation to apply once factual causation has been established so recognising respective fault of defendant’s
Multiple sufficient causes – second act could be a novus actus intervenes. Usually, second defendant not liable unless they’ve caused additional damage.

Question 4

What is legal causation?

Answer 4

Legal causation is concerned with any grounds the link should be regarded as broken,
Novus actus internveniens
Acts of God
- If its some exceptional natural event
Acts of third parties
- If it was highly unforeseeable THEN IT WILK BREAK
- Medical treatment – will not break chain unless so gross and egregious was to be unforeseeable.
Acts of claimant –
- It must be highly unreasonable.
Effect of it – defendant would not be liable for acts following the break.

Question 5

Test for remoteness?

Answer 5

How the court determines extent of defendant’s liability – must not be too remote.
The test for foreseeability – only if the type of damage was reasonably foreseeable. – objective test.

If there is an event where the negligence and then there is a secondary event. Unless they’re very connected it’s likely to be an intervening act and to remote to succeed.

The type of harm
- Foreseen that type of damage
- Usually, a broad approach
No need to foresee the exact way the damage occurs
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No need to foresee extent of the damage
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Thin skull rule
- Take victim as they find them