Ch 8 - Law of Tort

Question 1

Define the concept of causation and explain the tests used by the Courts to determine causation in the case
of a single cause of an injury and in the case of multiple causes.

Answer 1

Causation
To succeed in a negligence action the plaintiff must be able to prove that the defendant’s act or omission
caused the loss or damage to the plaintiff.
The key test to determine causation is the “but for” test - question asked in the negative and if the answer is
in the negative, then causation is established.
Problems with this test where there is more than one cause of an injury - such as arose in Barrett v Chelsea
& Kensington Hospital Management Committee (1969) where the cause of death was arsenic poisoning and
the failure of the hospital to treat him.
This resulted in the development of a second test - where there is more than one cause of an injury – this is
known as the material element and substantial factor test, McGhee v National Coal Board (1973).

Question 2

The meaning of the term ‘injunction’ and the types of injunctions that may be granted by the Court;

Answer 2

This is an Order of the Court compelling a person to do a specific thing (mandatory injunction) or preventing
a person from doing a specific thing (prohibitory injunction).
An injunction is classed as an equitable remedy and therefore granting it is at the absolute discretion of the
Court.
It is usually awarded when there is a legitimate legal case to answer and where the balance of probabilities
lies in favour of granting it.
There are two main types: (1) an interim injunction – granted on a short term basis pending a full hearing of
the legal issues, and (2) a perpetual injunction granted following hearing of a case.

Question 3

The distinction between general damages and special damages;

Answer 3

Special and general and damages:
Special damages are awarded for out of pocket expenses incurred as a result of the defendants actions.
They are generally capable of being calculated and are usually divided into two distinct headings, loss of
actual earnings and medical expenses.
They can also relate to expenses arising out of property damage.
General damages are damages awarded for the civil wrong committed, but which are not capable of simple
calculation.
This could include damages arising from pain and suffering as a consequence of a physical injury or mental
distress, as well as future medical expenses, loss of future earnings, diminution of quality of life, etc.

Question 4

The meaning of the term ‘punitive damages’, including an example of a situation where these types of
damages may be awarded.

Answer 4

These are damages awarded as an additional measure to the plaintiff in cases where the Court strongly
disapproves of the defendant’s behaviour, and to punish/make an example of the defendant.
Generally, they are only awarded where the actions of the defendant are sufficiently egregious and where the
Court believes that actual loss is not sufficient to sanction this behaviour.
An example of this could arise in a defamation case, where rather than admit they are wrong the defendant
states that they can prove the truth of their statement and then cannot do this when the case goes to hearing.