consequential loss or damage Flashcards
are there one or two tests in this section?
2
- causation in fact
- causation in law
what is the burden of proof?
balances of probabilities
What is the ‘but for’ test trying to achieve? Are there any cases that help explain how it works?
This is another name for causation in fact
There must be a causal link between the breach and the damage suffered. The claimant can do this by satisfying the court that they would not have incurred the harm they did ‘but for’ the defendant’s breach of duty.
Barnett v Chelsea & Kensington Hospital Management Committee (1969)
What does ‘causation in law’ mean? What is this criteria trying to achieve?
It means that the damage must not be too remote, i.e., it must be reasonably foreseeable
A defendant is only liable for damage which a reasonable man would have foreseen as likely to occur in the event of a breach.
What is the outcome of a new, intervening act?
It might break the chain of causation and if it is broken the defendant might not be liable for all injuries.
Ultimately, a court will only hold a defendant liable to compensate a claimant for the harm the claimant complains of if it is persuaded that:
- There was an unbroken chain of causation between that harm and the defendant’s breach of duty; and
- That harm was not too remote a consequence of the defendant’s breach of duty.
Is a defendant less liable if a claimant has a pre-existing condition that makes their injuries more serious?
No, this is the thin skull rule (or eggshell skull rule)
What is meant by the ‘Eggshell Skull’ principle?
a. The injury or damage to the claimant must be reasonably foreseeable.
b. If a claimant has a particular susceptibility or weakness and suffers a greater injury than a normal person, the defendant will be liable for injuries that a normal claimant would have suffered.
c. The defendant is not liable for any damage cause to the claimant because the claimant had a weak skull.
d. If a claimant has a particular susceptibility or weakness and suffers a greater injury than a normal person, the defendant will be liable to the full extent of the claimant’s injuries.
d. If a claimant has a particular susceptibility or weakness and suffers a greater injury than a normal person, the defendant will be liable to the full extent of the claimant’s injuries.
Which of the following cases is usually cited as an example of the ’eggshell skull’ rule?
a. Smith v Leech Brain & Co
b. Overseas Tankships & Engineering v Mot Dock & Engineering (The Wagon Mound No. 1)
c. Barnett v Chelsea & Kensington Hospital Management Committee
d. Donoghue v Stevenson
a. Smith v Leech Brain & Co
What is a ‘Novus Actus Interveniens’?
a. It is an intervening act which breaks the chain of causation
b. It is a defence
c. It is the Latin name for the ‘but for’ test
d. It is the Latin name for the ‘remoteness’ test
a. It is an intervening act which breaks the chain of causation
Matt, a hypochondriac, attended the hospital complaining of stomach pains. Dr Julie, who had seen Matt on numerous other occasions refused to see him. Matt died that night. It was discovered he was suffering from poisoning from which there was no antidote. Is Dr Julie liable in negligence?
a. Yes, because she failed to examine Matt.
b. No, because a doctor does not owe a duty of care to hypochondriac patients.
c. Yes, because doctors owe a duty of care to all patients.
d. No, because there must be a causal link between the breach of duty by the defendant and the damage suffered by the claimant.
d. No, because there must be a causal link between the breach of duty by the defendant and the damage suffered by the claimant.
Gary is driving after drinking too much and knocks Tina off her bike. Tina is furious, but she is not injured, and her bike is not damaged. Can Tina make a claim in negligence?
a. Yes, because Gary has a duty of care to other road users.
b. Yes, because Gary was clearly negligent.
c. No, because there was no damage or injury.
d. No, because drink driving is a crime.
c. No, because there was no damage or injury.
