Negligence: Causation and Remoteness

Question 1

What is the test to establish factual causation in negligence?

Answer 1

GR: But for D’s breach, would C have suffered harm?

• If C would have suffered harm in any event, claim will fail
• C must show on balance of probabilities harm was caused by D / attributable to D (> 50%)

Exception: Multiple Ds contribute to same damage

Question 2

When is the material contribution test used?

Answer 2

1. More than 1 cause of C’s loss (sequential or simultaneous)
2. Causes acted cumulatively (operate together to cause loss)
3. Medical science cannot establish probability each cause contributed

Test: Did D’s breach materially contribute to damage? (more than negligible contribution)

Question 3

When is the material increase in risk test used?

Answer 3

1. Single agent industrial disease case (Mesothelioma)
2. More than one potential cause of C’s loss

Question 4

When will D only be liable for a proportion of the damage they caused?

Divisible injury

Answer 4

1. Multiple Ds contribute to same injury
2. Injury is divisible: court can apportion between Ds (e.g. asbestosis)

Question 5

When will D be liable for all of C’s injuries / damage even if it was caused by multiple Ds?

Answer 5

Indivisible injury: cannot be divided (e.g. broken leg)

D can recover contribution from other tortfeasors

Question 6

How will liability be apportioned in the following circumstances:

1. Second D has not not caused additional damage to C (e.g. car needed respray before tortious act)
2. Second event is tortious
3. Second event is naturally occuring

Answer 6

1. Second D is not liable
2. First D is liable for initial injuries past point of second event. Second D is liable for additional losses.
3. D is liable for damage up to natural event

Question 7

What is the effect of an intervening act?

Answer 7

Breaks chain of causation and claim against D will fail

D is responsible for loss before novus event

Question 8

When is an act considered an intervening act?

Answer 8

Arises after the injury / harm D caused C (separate event)

Question 9

Does a 3rd party act arising after Ds negligence break the chain of causation?

Answer 9

No unless the act is highly unforseeable (NOT instinctive)

Question 10

Does negligent medical treatment break the chain of causation?

Answer 10

No unless grossly negligent (completely inappropriate reaction to C’s injury)

Question 11

Does C’s own act after Ds negligence break the chain of causation?

Answer 11

No unless C’s act is entirely unreasonable in all the circumstances

Question 12

Does an act of god break the chain of causation?

Answer 12

No unless exceptional and unforeseen (e.g. lightning, flood, onset of disease)

Question 13

Remoteness rule

Answer 13

If a reasonable person would not have forseen the injury / damage it cannot be recovered (Wagon Mound)

Question 14

Exceptions the remoteness rule

Answer 14

Provided the type of damage was reasonably foreseeable D is liable even if:

1. Precise way injury/damage occured was not foreseeable (similar in type rule)
2. precise extent of damage was not foreseeable (egg-shell skull rule)

Question 15

If a passer-by intervenes and makes C’s injuries worse, is D also liable for any additional injuries C suffers as a result of passer-by’s intervention?

Answer 15

Yes. Does not consitute intervening event as foreseeable. Therefore, D liable for original injury and additional injuries sustained as chain of causation is not broken.

Question 16

What is the modified but for test when breach is failure to advise on material risk?

Answer 16

C must prove they would not have had the treatment OR they would have deferred treatment on the balance of probabilities

Question 17

When is loss of chance used instead of the but for test?

Answer 17

Case involving pure economic loss (e.g. C loses chance to negotiate clause in contract as a result of solicitor’s failure to advise)

Question 18

What is the test to establish factual causation in cases involving loss of chance to negotiate clause?

Answer 18

real and substantial chance the seller would agree to the clause