Ch 3: Negligence: Causation Of Damage

Question 1

What is the “but for” test?

Answer 1

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?”

Question 2

What is the probability test for proof of factual causation?

Answer 2

“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.

Question 3

What test is applied if there are several potential causes acting together?

Answer 3

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.

Question 4

What is the principle of material increase in risk?

Answer 4

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.

Question 5

What is divisible injury?

Answer 5

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.

Question 6

How do you divide damages if an injury is indivisible? E.g two cars cause an accident that breaks a leg?

Answer 6

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.

Question 7

For an indivisible injury, can one defendant seek recourse from another?

Answer 7

Yes - if one defendant is found liable for all damages, then they may seek to recoup some of this from a second defendant

Question 8

Who must prove factual causation?

Answer 8

The claimant must prove a causal link between the breach and the loss of

Question 9

Must a causal chain of events be unbroken to prove cause?

Answer 9

Yes - Intervening Acts may break the causal chain

Question 10

Does an instinctive intervention break the chain of causation?

Answer 10

No - only deliberate acts (usually negligent acts) break the chain

Question 11

Does a negligent intervention by a third party break causation?

Answer 11

Yes - e.g Knightly v John’s - the police motorbike colliding in a tunnel

Question 12

Do reckless or intentional acts which are not negligent break causation?

Answer 12

Very likely yes.

Question 13

Is the chain of causation broken by an intervening act which is foreseeable by the original defendant?

Answer 13

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.

Question 14

When would a claimants own actions break the chain of causation?

Answer 14

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

Question 15

What is the Wagon Mound test for remoteness of damage?

Answer 15

If a reasonable person would not have foreseen the damage, it cannot be recovered

Question 16

What are two provisions for the Wagon Mound Rule?

Answer 16

• the Similar in Type rule
• The Egg-Shell rule

Question 17

What is the “Similar in Type” rule for remoteness of damages?

Answer 17

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.

Question 18

What is the Egg Shell rule for remoteness of damages?

Answer 18

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.

Question 19

What is the Voluntary Assumption of Risk Defence?

Answer 19

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

Question 20

I’m for the Defence of Voluntary Assumption of Risk, is it enough to probe knowledge of the risk?

Answer 20

No - the defendant must also prove the claimant freely consented to the risk.

Knowledge is not consent.

Question 21

Can an employer claim defence of consent against an employee?

Answer 21

Not usually no. The threat of losing a job if refusing an action means it is almost impossible to prove free and willing consent.

Question 22

Can a rescuer be considered to voluntarily assume the risk of their actions?

Answer 22

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

Question 23

What is defense of Illegality?

Answer 23

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.

Question 24

Can you defend yourself by excluding liability up front?

Answer 24

Yes - sometimes.

Question 25

Is Contributory Negligence a Full Defense?

Answer 25

No - only a partial one. It’s an argument for shared liability, not no liability.

Question 26

What are the two elements required to prove a Contributory Negligence claim?

Answer 26

• carelessness on the claimants part
• that carelessness has contributed to the claimants damage

Question 27

What is the impact of a finding of Contributory Negligence?

Answer 27

Damages recoverable will be reduced to such an extent as the court thinks equitable

Question 28

When addressing how to reduce damages in a case of contributory negligence, does it matter if a claimant’s negligence was not a cause of the accident/incident?

Answer 28

No - what matters is if it contributed to the damage received, not the causation of the incident itself.

E.g Seatbelt. The cause of an accident may not be the fault of the driver, but if the damage is exacerbated by not wearing a seatbelt, then contributory negligence still applies