Ch 3: Negligence: Causation Of Damage Flashcards
What is the “but for” test?
When dealing with causation of damage the first question is “As a matter of fact was the defendants negligence a cause of the claimants damage?”
What is the probability test for proof of factual causation?
“Balance of Probabilities” - so greater than a 50% chance that the harm was caused by the actions. Less than that chance and it is dismissed.
What test is applied if there are several potential causes acting together?
A breach of duty does not need to be the only or even main cause of the damage.
The claimant only has to show that it was a “material” contributor to the damage.
What is the principle of material increase in risk?
It is an exception to the usual rules of causation - strictly confined to cases of scientific uncertainty.
Here damages may be found on the basis that the actions materially increased the risk of harm - rather than materially contributing to harm itself.
What is divisible injury?
Where a harm is demonstrably the fault of multiple actions/defendants, the court will apportion damages and compensation between the defendants.
To achieve full compensation, a claimant must claim against ALL potential defendants.
How do you divide damages if an injury is indivisible? E.g two cars cause an accident that breaks a leg?
In this situation a claimant is entitled to claim FULL damages from EITHER party - but can only do so once (cannot claim damages twice).
You may sue one or both.
For an indivisible injury, can one defendant seek recourse from another?
Yes - if one defendant is found liable for all damages, then they may seek to recoup some of this from a second defendant
Who must prove factual causation?
The claimant must prove a causal link between the breach and the loss of
Must a causal chain of events be unbroken to prove cause?
Yes - Intervening Acts may break the causal chain
Does an instinctive intervention break the chain of causation?
No - only deliberate acts (usually negligent acts) break the chain
Does a negligent intervention by a third party break causation?
Yes - e.g Knightly v John’s - the police motorbike colliding in a tunnel
Do reckless or intentional acts which are not negligent break causation?
Very likely yes.
Is the chain of causation broken by an intervening act which is foreseeable by the original defendant?
No - if an injury is caused and failed to be treated by negligent medical care, that does not break causation for the original injury as the medical care is foreseeable (and negligence is always a possibility)
Gross negligence on the other hand would probably break the chain.
When would a claimants own actions break the chain of causation?
To amount to an intervening act, the claimants actions which make an injury worse must be entirely unreasonable in the circumstances.
Carelessness is likely to be dealt with as part of a Defence of Cobtributory Negligence instead
What is the Wagon Mound test for remoteness of damage?
If a reasonable person would not have foreseen the damage, it cannot be recovered
What are two provisions for the Wagon Mound Rule?
- the Similar in Type rule
- The Egg-Shell rule
What is the “Similar in Type” rule for remoteness of damages?
If the claimant suffers an injury of a TYPE that was foreseeable, it does not matter that the precise way in which the claimant was injured was not foreseeable.
What is the Egg Shell rule for remoteness of damages?
You take your victim as you find them.
If a claimant has some certain condition which worsens a harm, the defendant at is liable for the full damages even though the full extent may not have been foreseeable without knowledge of that condition.
What is the Voluntary Assumption of Risk Defence?
Defence of consent.
A defendant must prove:
- the claimant had full knowledge of the nature and extent of the risk
- that the claimant willingly consented to accept the risk of being injured due to negligence
I’m for the Defence of Voluntary Assumption of Risk, is it enough to probe knowledge of the risk?
No - the defendant must also prove the claimant freely consented to the risk.
Knowledge is not consent.
Can an employer claim defence of consent against an employee?
Not usually no. The threat of losing a job if refusing an action means it is almost impossible to prove free and willing consent.
Can a rescuer be considered to voluntarily assume the risk of their actions?
No - rescuers are not considered to have voluntarily assumed the risk if:
- they were acting to rescue persons endangered by negligence
- they were acting under a compelling legal social or moral duty
- their conduct was reasonable and a natural consequence of the defendants negligence
What is defense of Illegality?
If the claimant was engaged in an illegal act at the time they were injured this can be used by the defendant as a defense.
There must be a close connection between the illegal activity and the injury such that the damage arises directly out of the illegal activity.
Can you defend yourself by excluding liability up front?
Yes - sometimes.
