CAUSATION AND REMOTENESS OF DAMAGE Flashcards
WHAT IS CAUSATION??
ESTABLISHING that the loss suffered was caused by the defendant’s breach of duty or negligent behaviour
BUT-FOR TEST
- 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)
but-for test was used in
(Barnett v Chelsea and Kensington hospital management committee)
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…
(Chester v afshar)
but-for test is simple when…
there is one cause of harm and one defendant
BUT-FOR TEST IS NOT ADEQUATE WHERE…
- claimant has lost the chance of full recovery
- several concurrent cases
- consecutive causes of harm
LOSS OF CHANCE CASES
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.
for loss of chances cases full damages should have been awarded rather than a percentage
(Hotson v East Berkshire area health authority )
and reinforced in (GREGG V SCOTT)
SEVERAL CONCURRENT CAUSES OF HARM
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
DEFINITION OF PERCENTAGE ATTACHED WAS FINALLY ADDRESSED IN… AFTER THE CASE OF …
…(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
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…
(BAILEY V MINISTRY OF DEFENCE )…
…(WILSHER V ESSEX AREA HEALTH AUTHORITY)
CONSECUTIVE CAUSES OF HARM
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)
COURTS COULD USE THEIR OWN DISCRETION IN …
(JOBLING V ASSOCIATED DIARIES)
NOT POSSIBLE TO PROVE WHO CAUSED THE HARM SO BOTH DEFENDANTS FOUND LIABLE
(FITZGERALD V LANE )
MULTIPLE TORTFEASORS
this mostly occurs in realtion to work related illnesses that has taken years to develop
(HOLTBY V BRIGHAM AND CROWN)