Negligence: Causation Flashcards
What is causation?
The claimant must prove that their loss was caused by the defendant’s breach of their duty of care
Who must prove causation?
The claimant, on the balance of probabilities
What are the two steps to proving causation?
- Factual causation
- Legal causation
What is the test for establishing factual causation?
‘But for’ test
But for the defendant’s (specific) breach, would the claimant have suffered their (specific) loss?
Must be proven on the balance of probabilities
When will the courts allow loss of chance for factual causation?
Pure economic loss cases ONLY
What is the approach to factual causation if there are multiple causes of the claimant’s loss?
It depends if there are multiple independent causes (more than one possible cause, but any one of them is the sole cause) or multiple cumulative causes (more than possible cause working together to cause the loss)
Multiple independent causes –> ‘but for’ test
Multiple cumulative causes –> material contribution test
(if industrial disease: material increase in risk test)
What is the test for factual causation where there are multiple independent causes?
The ‘but for’ test
(More than one possible cause of claimant’s loss, but any one of these is the sole cause)
What is the test for factual causation where there are multiple cumulative causes?
The material contribution test
Material contribution = more than minimal
(Solely for industrial disease: material increase in risk test)
What is the material increase in risk test and when is it used in establishing factual causation?
Solely for industrial disease (where there is scientific uncertainty)
(Where the disease is triggered at a certain point –> can’t satisfy but for + not cumulative working together + can never prove exactly where exposure came from)
If there is more than one liable entity, and the injury is ‘divisible’, can the courts apportion damages?
Yes - damages will be proportionate
eg. Absteosis: disease can be apportioned on a time basis between different defendants
Claimant can only obtain a % of the damages from each defendant - must sue all defendants to obtain 100% of damages
If more than one liable entity, but the injury is ‘indivisible’, can the courts apportion liability?
Where the injury itself can’t be apportioned between different defendants (eg. broken leg)
The court CAN apportion blame between the defendants
Claimant can obtain 100% of damages from any defendant - the defendant must claim a contribution from the other defendants
What is legal causation?
Is there something which happens after the defendant’s breach which breaks the chain of causation (novus actus interveniens)?
If the chain is broken, the defendant is only liable for any losses up to the point of the break
What is a novus actus interveniens?
An even which happens after the defendant’s breach which breaks the chain of causation
If the chain of causation is broken by a novus actus interveniens, what happens?
The defendant will only be liable for any losses up to the point of the break
Will the instinctive act of a third party break the chain of causation?
No
