Tort 2 - Negligence and Causation

Question 1

What is causation?

Answer 1

The claimant that suffered loss must prove the loss was caused by the defendants breach of duty

Question 2

What are the three stages in establishing causation?

Answer 2

1. Causation in fact

Causation in law
2. No intervening acts
3. Damage not too remote

Question 3

What is the ‘but for’ test

Answer 3

1. First step establishing causation in fact
2. ‘But for’ the defendants breach of duty would the loss have happened

Question 4

What is the standard of proof for causation?

Answer 4

The balance of probabilities

More likely than not the claimant’s loss was caused by the defendants breach

Question 5

Explain the modified test for causation in fact

Answer 5

Where the injury has resulted from a number of causes acting together.

Defendant must have ‘materially contributed’ to the claimant’s loss

Question 6

What does it mean an injury is divisible and what happens to the claimant’s claim

Answer 6

Damages split between the defendants according to the injury each of them caused

Claimant sues each person for a portion

Question 7

What happens if an injury is not divisible?

Answer 7

Claimant can recover full damages from any defendant

Defendant can recover contribution from other defendants

Question 8

What is meant by breaking the chain of causation?

Answer 8

A new act intervenes between defendants initial negligence and claimant’s injury

Defendant not liable for further loss

Question 9

Will an intervening act by a third party break the chain of causation?

Answer 9

Only if it was not reasonably foreseeable

Question 10

Will an intervening act by the claimant break the chain of causation?

Answer 10

Only if the claimant acted unreasonably

If yes, claimant recovers no damages

Question 11

Can a natural event break the chain of causation?

Answer 11

Yes - it can prevent defendant’s liability for further damage

Question 12

What is the test for remoteness of damage?

Answer 12

Reasonably foreseeability

If damage too remote a consequence, defendant not liable

Question 13

What are the exceptions to the reasonably foreseeability test?

Answer 13

1. Egg shell skull rule - claimant suffers from pre-existing condition
   (take the victim as you find them)
2. Similar in type rule - harm is foreseeable but the manner in which it occurred was not