Negligence: Causation Flashcards
In civil cases and negligence claims?
Proof of causation?
Civil case: Balance of probabilities, more likely than not
Negligence claim: On the balance of probabilities, the claimant must show that the harm was caused by the defendant
Three questions that needed to be asked in regards to causation
- As a matter of fact, was the defendant’s negligence a cause of the claimant’s harm?
- Even if the defendant’s negligence was a cause of the claimant’s harm was there any intervening act?
- Even if the defendant’s negligence was a cause of the claimant’s harm, was the damage too remote?
Proof of factual causation: the material contribution approach
When there are multiple causes, the claimant need not show that the defendant’s actions were the main or only cause. It should have just materially contributed to the damage.
Factual causation: material increase in risk?
In the case of McGhee v National Coal Board, it appeared that the House of Lords had extended the material contribution approach even further, to cover creation of a material increase in the risk of injury, rather than a material contribution to the injury itself.
The principle of material increase in risk is best viewed as an exception to the usual rules of causation, strictly confined to cases of scientific uncertainty like mesothelioma
Factual causation: what if a claimant is injured more than once?
It is necessary to briefly consider a different problem: where the claimant suffers more than one injury, one after the other.
Where a claimant (or his property) has already suffered damage, a later defendant who causes a subsequent injury should be liable only to the extent that he makes the claimant’s damage worse
Divisible injury: proportionate damages
If the defendant has only contributed towards the claimant’s injury, should the defendant pay damages which reflect the full extent of the harm suffered? Would it be fairer if the defendant only paid a sum which reflected the extent of their contribution?
Where the court has evidence which will enable it to divide up the injury suffered by the claimant, it will apportion the damages accordingly
Indivisible injury: contribution between tortfeasors
Under ss 1(1) and 2(1) of the Civil Liability (Contribution) Act 1978, where two or more people are responsible for the same damage, the court has the power to apportion the damage between them.
The position of the claimant: Where two or more persons are liable to the claimant in respect of the same damage, the claimant is entitled to sue any or all of them and is entitled to recover the full amount of their loss from any or all of them.
The position of the defendant: Under the Civil Liability (Contribution) Act 1978, a person (D1) liable for any damage suffered by another person (C) may recover a contribution from any other person (D2) liable for the same damage
Although the court may apportion blame between the defendants, the apportionment does not affect the claimant as far as the enforcement of any judgment is concerned
Breaking the chain of causation: intervening acts
The instinctive intervention of a third party does not break the chain of causation
The negligent intervention of a third party: The chain of causation is unlikely to be broken by a negligent action of a third party which the defendant ought to have foreseen as a likely consequence of his negligence.
The intervening conduct of a third party is intentional or reckless: It is more likely that the conduct of a third party that is reckless or intentional rather than just negligent will be treated as a novus actus interveniens.
Breaking the chain of causation: the claimant’s actions
The situation to be considered here is where the claimant does something after the defendant’s negligent act which causes the claimant to suffer further harm.
From these cases it can be seen that to amount to a novus actus interveniens the claimant’s act has to be entirely unreasonable in all the circumstances, otherwise the act will simply be a natural event and will not break the chain of causation
Remoteness of damage
The basic rule: When a court decides that damage is too far removed, so that a defendant should not be responsible for it, the damage is said to be too remote. This is the issue of remoteness of damage.
The Wagon Mound (No 1) held that the test for remoteness of damage is one of reasonable foreseeability.
Remoteness of damage: the ‘similar in type’ rule
If the claimant suffers an injury of a type which was foreseeable, it does not matter that the precise way in which the claimant was injured was not foreseeable.
Remoteness of damage: the ‘egg-shell skull’ rule
The basic rule for remoteness of damage is that the claimant’s injury must be reasonably foreseeable.
The ‘egg-shell skull’ rule means that you take your victim as you find them. This means that if the claimant suffers a particular disability or has a particular condition, they can recover in full from the defendant for their losses, even though the defendant could not have foreseen the full extent of the claimant’s loss.
