Causation in Negligence Flashcards
What is the ‘but for’ test in the context of factual causation?
The ‘but for’ test asks: “But for the defendant’s breach of duty, would the harm to the claimant have occurred?”. If the harm would have occurred anyway, the defendant is not liable
What does ‘causation in fact’ mean?
Causation in fact refers to whether the defendant’s negligence actually caused the harm to the claimant. It’s the first question to address when dealing with causation. If the defendant’s breach of duty did not cause the harm, the claimant has no case
What is a ‘material contribution’ in the context of causation?
In cases with multiple causes, a claimant can prove causation by showing the defendant’s breach “materially contributed” to their harm, even if it wasn’t the sole cause. The defendant’s breach does not need to be the only cause or the main cause
What is a ‘novus actus interveniens’?
A ‘novus actus interveniens’ is a new intervening act that breaks the chain of causation, meaning the original defendant is no longer liable. This could be the actions of a third party, the claimant, or an event
Give an example of a ‘novus actus interveniens’ involving a third party.
If a defendant negligently starts a fire, and a third party adds fuel making it spread, the third party’s actions may be considered a ‘novus actus interveniens,’ breaking the chain of causation from the original negligent act. The original defendant would not be liable
When might the actions of a third party NOT break the chain of causation?
Actions of a third party that are instinctive, or a foreseeable consequence of the defendant’s negligence are unlikely to break the chain of causation
When might a claimant’s actions break the chain of causation?
A claimant’s actions will break the chain of causation if they are deemed entirely unreasonable in the circumstances
What is ‘remoteness of damage’?
Remoteness of damage considers whether the damage suffered by the claimant was too far removed from the defendant’s actions, even if there was factual causation. It asks whether a reasonable person would have foreseen the damage
What is the basic test for remoteness of damage according to The Wagon Mound (No 1)?
The test for remoteness is reasonable foreseeability: Would a reasonable person have foreseen the type of damage that occurred?. If the damage was not reasonably foreseeable, the defendant is not liable.
What is the ‘similar in type’ rule in remoteness of damage?
If the type of damage was foreseeable, the defendant is liable, even if the precise way it occurred was not. For example, if burns were foreseeable, it doesn’t matter if the exact way the burns occurred was not foreseeable
What is the ‘egg-shell skull’ rule?
The ‘egg-shell skull’ rule means “you take your victim as you find them.” If the type of harm is foreseeable, the defendant is liable for the full extent of the harm, even if the claimant has a pre-existing condition making the injury worse than expected
What is the difference between divisible and indivisible injury?
A divisible injury, like asbestosis, can be apportioned according to the period of exposure to different employers. An indivisible injury, such as a broken leg caused by two drivers, cannot be divided up
What happens if a claimant suffers an indivisible injury caused by multiple tortfeasors?
The claimant can recover full damages from any of the defendants. However, the defendants can then seek contribution from each other based on their share of responsibility under the Civil Liability (Contribution) Act 1978
In a negligence case, what is the standard of proof required for the claimant to show causation?
The claimant must prove, on the balance of probabilities, that the defendant’s breach caused the harm. This means it is more likely than not that the defendant’s actions caused the harm
