Causation and Remoteness Flashcards
But for test, also known as…
Factual causation. The defendant’s actions are a factual cause of the plaintiff’s loss if it was a necessary condition of that loss. Referred to as the ‘but for’ test. But for D’s actions, would P’s loss have occurred?
But for test case and CLA section
Barnett v Chelsea - tea case. The doctor’s actions were not a necessary condition of the patient’s death because he would have died anyway. “But for the doctor’s actions, would P have died?” Yes, therefore no factual causation.
s11(1)(a) - Was the breach of duty a necessary condition of the occurrence of harm?
Limited to where there is one identifiable cause.
When is the common sense test to be used?
In cases of multiple sufficient causes (March v Stramere) and intervening causes (Chapman v Hearse)
Common sense test
March v Stramere - Truck parked at night in the middle of a six lane road. P, who was drunk driving crashed into truck. Court held that but for test should not be applied because of a multiple sufficient cause; however by taking a common sense approach “Is the harm suffered by P the very likely thing to occur as a result of D’s conduct?”, which is more holistic
s11(2) In exceptional cases
In exceptional circumstances when multiple sufficient causes and intervening causes are present
s13
What would have P done if the breach hadn’t occurred?
(a) it is a subjective decision
(b) anything that P would have done is inadmissible except if it is against their best interests (i.e., leads to P losing the case)
Remoteness
The damage is not too remote a consequence of the breach
s11(1)(b) Was the damage that occurred not too remote?
Wagon Mound No. 1 - Was the kind of damage that occurred the kind that was reasonably foreseeable?
