CAUSATION AND REMOTENESS OF DAMAGE Flashcards

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1
Q

WHAT IS CAUSATION??

A

ESTABLISHING that the loss suffered was caused by the defendant’s breach of duty or negligent behaviour

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2
Q

BUT-FOR TEST

A
  • defendants breach of duty must be cause of damage totally or at the very least materially contributed to the claimants damage
  • but-for test removes any factor that has had a casual effect

(but-for test was described in cork v Kirby Maclean Ltd)

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3
Q

but-for test was used in

A

(Barnett v Chelsea and Kensington hospital management committee)

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4
Q

courts could not easily use the but-for-test to prove causation and the fact that causation was an issue to decide upon in the case of…

A

(Chester v afshar)

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5
Q

but-for test is simple when…

A

there is one cause of harm and one defendant

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6
Q

BUT-FOR TEST IS NOT ADEQUATE WHERE…

A
  • claimant has lost the chance of full recovery
  • several concurrent cases
  • consecutive causes of harm
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7
Q

LOSS OF CHANCE CASES

A

usually involves medical negligence, if a claimant has a percentage chance of being cured but that percentage is reduced by the doctor’s delay in diagnosing illness.

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8
Q

for loss of chances cases full damages should have been awarded rather than a percentage

A

(Hotson v East Berkshire area health authority )
and reinforced in (GREGG V SCOTT)

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9
Q

SEVERAL CONCURRENT CAUSES OF HARM

A

where there is more than one possible cause of damage courts have modified the but-for test to find a fair way of deciding whether liability should be imposed on defendant.

(BONNINGTON CASTINGS V WARDLOW) HoL did not indicate what amounted to material contribution in this case

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10
Q

DEFINITION OF PERCENTAGE ATTACHED WAS FINALLY ADDRESSED IN… AFTER THE CASE OF …

A

…(SIENKIEWCIZ V GRIEFF)

…(MCGHEE V NCB)
where it was held that where more than one possible cause of injury, causation can be proved if a claimant can show defendant’s negligence materially increased the risk of injury

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11
Q

MATERIAL INCREASE APPROACH USED IN …
at times courts will use a diff approach from MCGHEE where claimant must prove on balance of probabilities that defendants negligence was material cause of injury not enough to show defendant merely increase risk of damage of damage like case of…

A

(BAILEY V MINISTRY OF DEFENCE )…

…(WILSHER V ESSEX AREA HEALTH AUTHORITY)

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12
Q

CONSECUTIVE CAUSES OF HARM

A

where 2 independent event cause the damage and second defendants breach causes the same damage as that caused by the first defendant, first event should be treated as the cause
(BAKER V WILLOUGHBY)

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13
Q

COURTS COULD USE THEIR OWN DISCRETION IN …

A

(JOBLING V ASSOCIATED DIARIES)

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14
Q

NOT POSSIBLE TO PROVE WHO CAUSED THE HARM SO BOTH DEFENDANTS FOUND LIABLE

A

(FITZGERALD V LANE )

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15
Q

MULTIPLE TORTFEASORS

A

this mostly occurs in realtion to work related illnesses that has taken years to develop
(HOLTBY V BRIGHAM AND CROWN)

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16
Q

Holtby principle can work harshly against claimants as they may not recover compensation in full so it was partially corrected by

A

(FAIRCHILD V GLENHOVEN FUNERAL)

17
Q

(FAIRCHILD V GLENHOVEN FUNERAL)

A

where each defendant will be liable if it can be shown they made a material contribution to risk of harm

18
Q

COURTS TOOK THE CHANCE TO AMEND THE SITUATION IN FAIRCHILD IN A SIMILAR CASE…

A

(BARKER V CORUS UK)
where defendant’s contribution to harm was limited to the extent that they negligently exposed the claimant to harm

19
Q

NOVUS ACTUS INTERVENIENS

A

defendant has to show that an intervening act has caused the damage rather than the defendant this may break the casual link btw defendants breach of duty and harm

  • intervention by claimant
  • intervention by third party
20
Q

INTERVENTION BY THE CLAIMANT

A

test is whether the claimant acted reasonably in the circumstances. If the claimant’s actions are deemed reasonable the chain of causation remains intact and the defendant is liable for the actions of the claimant. If, however, the claimant’s actions are unreasonable in the circumstances the chain of causation is broken and the defendant is not liable for the actions of the claimant

(MCKEW V HOLLAND AND HANNEN CUBITTS)

21
Q

INTERVENTION BY 3RD PARTY

A

Where the new act is of a third party, the test is whether the act was foreseeable. If the act of the third party was foreseeable, the defendant remains liable and the chain of causation remains intact.

(KNIGHTLEY V JOHNS)

22
Q

TEST FOR REMOTENESS OF DAMAGE

A

DAMAGE MUST BE A FORESEEABLE TYPE. CAN BE APPLIED TO NEGLIGENCE CLAIMS, OCCUPIERS LIABILITY AND NUISANCE CLAIMS

23
Q

ORIGINALLY A DEFENDANT WAS LIABLE FOR ALL LOSSES WHICH WERE A DIRECT CONSEQUENCE OF THE DEFENDANTS BREACH OF DUTY

A

*(RE POLEMIS)

24
Q

RE POLEMIS CASE WAS CONSIDERED UNFAIR AS A DEFENDANT COULD BE LIABLE FOR DAMAGE WHICH WAS NOT FORESEEABLE AND THEREFORE COULD NOT TAKE STEPS TO PREVENT IT SO DIRECT CONSEQUENCE TEST WAS OVERRULED IN

A

(WAGON MOUND NO)

25
Q

FOLLOWING THE WAGON MOUND CASE DAMAGE MUST BE OF A KIND OF FORESEEABILITY . ONCE DAMAGE IS A KIND THAT IS FORESEEABLE DEFENDANTS ARE LIABLE FOR THE FULL EXTENT OF DAMAGES NO M,ATTER WHETHER THE EXTENT OF DAMAGE IS FORESEEABLE

A

(HUGHES V LORD ADVOCATE)

26
Q

THIN SKULL RULE IN REMOTENESS OF DAMAGE

A

(PAGE V SMITH)
(SMITH V LEECH BRAIN AND CO)