Negligence - causation and pure economic loss Flashcards
What is the common test for causation, from Barnett v Chelsea and Kensington Hospital?
The “but for” test
Regarding factual causation, what must the claimant show on the balance of probabilities?
The harm suffered was caused by the defendant
What must be proven for factual causation, if there is more than possible cause of harm?
That it was one above the others
What is the material contribution approach?
In a multiple causes case the claimant only need show that the defendant’s breach of duty materially contributed to the damage
How is factual causation considered where the claimant is injured more than once?
A later defendant who causes a subsequent injury should be liable only to the extent that he makes the claimant’s damage worse
When will the court apply proportionate damages?
Rarely - where court has evidence which will enable it to divide up the injury suffered, it will apportion damages accordingly
How may the court apportion damages if 2 or more people are responsible for the same damage? (Indivisible injury)
Apportioned according to each person’s share of responsibility for damage
Do instinctive acts of a third party break the chain of causation?
No
Do negligent interventions of a third party break the chain of causation?
Unlikely to
Do reckless or intentional intervening acts of a third party break the chain of causation?
Yes - generally treated as a novus actus interveniens
Do actions of the claimant ever break the chain of causation?
No, generally contributory negligence rather than breaking chain of causation
What is the Wagon Mound rule for remoteness of damage?
If a reasonable person would not have foreseen the damage it cannot be recovered
What is the “similar in type” rule in relation to remoteness of damage?
If claimant suffers an injury of a foreseeable type, it does not matter that the precise way in which the claimant was injured was not foreseeable
What is the “egg-shell skull” rule in relation to remoteness of damage?
Take your victim as you find them rule, i.e. if they suffer a particular disability or have a condition, they can recover in full for their losses even though the defendant could not have foreseen the full extent of the loss
What is the general rule regarding recovery of damages for pure economic loss?
There is a lack of sufficient proximate relationship between a claimant who has suffered PEL and a defendant who may have caused this, therefore cannot be recovered in negligence
Why can the cost of replacement of a defective product not be claimed in negligence?
It is regarded as pure economic loss and therefore can only be claimed in contract
Can PEL suffered by acquiring a defective item of property be recovered in negligence?
No
What is the difference between PEL and consequential loss?
Consequential loss is connected to the property damage and therefore can be claimed under negligence
Can economic loss connected to PI to the claimant / physical damage to their property be recovered under negligence?
Yes
What were the facts and outcome of Spartan Steel v Martin?
Damage occurred to a third party’s electrical wire, which led to a the claimant losing products + profit on those products (could claim) and loss of profit of production of further products which could have happened in the downtime from the wire being cut (couldn’t claim as was PEL)
Is there an economic claim in negligence if a defendant negligently damages property belonging to a third party and causes the claimant loss?
No - PEL situation
What is the exception to no liability for PEL in negligence from Hedley Byrne?
There can be a duty of care owed NOT to CAUSE PEL by negligent misstatement, due to special relationship
What must be established for the exception in Hedley Byrne to apply?
- Assumption of responsibility by defendant
- Reasonable reliance by claimant
How did Caparo refine the Hedley Byrne exception?
- Advice must be for specific purpose known to D
- D must communicate advice to C
- Relationship must have been such that D knew C would act upon advice without independent enquiry
- Advice must be relied upon by C
If all elements are satisfied in order to establish liability for PEL, what defence is available?
Exclusion of liability
What are the 2 requirements for the exclusion of liability defence?
- Reasonable steps must have been taken to bring exclusion notice to claimant’s attention before tort was committed
- Wording of the notice must cover the loss suffered by the claimant
Which statutes limit the ability to exclude liability?
UCTA and CRA
When does UCTA apply?
Defendant acting in course of business and claimant is a consumer
