Tort 2 - Causation, Pure economic loss Flashcards
Causation
‘But for’ test. Factual causation.
Person alleging fact must prove it.
Balance of probabilities.
Hotson v East Berkshire Area Health Authority - 25% chance it would’ve caused it. Not enough.
Wilsher - multiple causes, C needs to establish on balance of probability.
Multiple causes
Material contribution approach-
Materially contributed.
or
Materially increased risk (only cases of scientific uncertainty).
C injured more than once?
Where already suffered damage, only liable where damage worse.
Divisible injury -
apportioned damage to dust exposure on different employers (Hotly v Brigham and Cowan).
Indivisible injury - contribution between tortfeasors
Two or more people responsible for damage. Court has to apportion damage between them
Each persons share of responsibility for damage.
(only applies between defendants themselves).
Intervening acts
Third party-
Limited where;
Instinctive actions do not count
Negligent action which D ought to have foreseen as a likely consequence of his negligence.
Third party reckless or intentional;
Unlikely to be broken where D reasonably foresaw or ought to have foreseen as consequence.
Negligent medical treatment;
if negligent, D should have foresaw risks of medical in first place. Unlikely to break. Has to be grossly negligent.
Actions of C;
Claimants act has to be entirely unreasonable.
If below this think about contributory/
Remoteness of damage
Damage is too far removed.
Overseas Tankship Ltd v Morts Dock and Engineering Co Ltd. The Wagon Mound (No1) 1961 -
Test one of reasonable foreseeability.
Is damage such a kind that reasonable person would have foreseen?
Two exceptions
Similar in type -
if injury of a type foreseeable, does not matter precise way injured was foreseeable.
E.g. Injury by burning (doesn’t matter how happened) Hughes v Lord Advocate.
Egg-shell skull rule -
Have to take victim as you find them.
Pure economic loss
Problem with proximate relationship with claimant
General rule - does not owe duty.
Make sure not consequential economic loss (no special rules for this).
Economic loss caused by acquiring a defective item of property
No cause of action.
Purely economic.
E.g. house foundations failing (before) on sale causing price to go down
No physical damage to person or property.
Economic loss unconnected to personal injury to claimant or physical damage to claimants property
Only when it is claimants property
Two types -
economic loss caused by damage to third party
economic loss caused where there is no physical damage
Spartan Steel - power line cut (did not belong to factory), loss of ability to make products.
Economic loss caused where there is no physical injury to claimant or physical damage to claimants property
Journalist who makes faulty investment advice.
Economic loss where no physical damage - actions - no cause of action.
Statements only where special relationship -
as pure economic loss cannot be claimed as there isn’t sufficient proximity, a special relationship may rebut this.
Hedley Byrne -
pure economic loss from dodgy credit rating.
Where
-an assumption of responsibility by D
-Reasonable reliance by C.
Assumed a responsibility (Caparo);
-D knew purpose for which advice required
-D knew advice would be communicated
-D knew C was likely to act without independent inquiry.
-Advice acted on by C to its detriment.
Reasonable for C to rely on D for advice?
James Mc Naughton -
bidder, false accounts prepared, did not know it would be THAT bidder.
Not liable.
Morgan Crucible -
opposite where bidder known.
Chaudhry -
gone beyond friendship as knew more about cars, had assumed responsibility.
Expansion of Hedley test
Spring (employer reference)
expanded to third parties.
White -
delay in will
Beneficiary brought claim to solicitor.
Henderson -
can rely on tort even when in contact. Only if tort consistent with duties owed under contract.
Breach
Reasonable standard of someone in that profession.
Exclusion of liability
Reasonable steps taken to brig exclusion notice to attention of C
Wording of notice must cover loss suffered by C.
UCTA 1977
D in course of business. C as consumer.
May still apply if C not consumer.
Cannot exclude for death or personal injury resulting from negligence.
Can exclude other if satisfies reasonableness.
Fair and reasonable to allow exclusion notice and good faith.
Smith V Eric S Bush -
parties of equal bargaining power ?
reasonably practicable to obtain advice from other source taking into account cost and time?
difficult task being undertaken for which liability excluded?
practical consequences taking into account sums of money at stake and ability to bear loss, insurance?
