Causation and Remoteness Flashcards
(21 cards)
Causation and remoteness
To be found liable in negligence, d’s breach of DOC must have caused a reasonably forseeable type of harm.
Factual causation
Did d’s breach cause c’s loss? Was d’s breach of duty a necessary condition for the harm to occur? ‘But for’ d’s breach…
Factual causation - the ‘but for’ test - case
Barnett v Chelsea and Kensington Hospital - the ‘but for’ test is on the balance of probabilities, but for d’s breach of duty, would c have suffered loss? There must be more than a 50% chance (even just 51%) that the breach caused the loss. Here, it wasn’t ‘but for’ d’s act, c would have died anyway.
Legal Causation
As a matter of law, should d’s d’s breach be considered to have caused the harm? Was c’s loss a reasonably foreseeble consequence of d’s breach?
Legal Causation - intervening acts
Are there any grounds upon which the link between d’s breach and c’s loss should be regarded as being broken?
Legal Causation - New intervening act
Novus actus interveniens = events that occur subsequent to the breach the chain of causation. D remains liable for any loss that occurs before the novus actus, but will not be responsible for any loss after it.
Legal Causation - New intervening act - types
1) Acts of God
2) Acts of third parties
3) Acts of the claimant
Legal Causation - New intervening act - Acts of God
An exceptional natural event.
Legal Causation - New intervening act - Acts of God - case
Carslogie Steamship Co Ltd v Royal Norwegian Government - d was liable for dmaages due to the collision but not the storm damage.
Legal Causation - New intervening act - Acts of third parties - in general
A highly unforseeable action.
Legal Causation - New intervening act - Acts of third parties - in general - case
Knightley v Johns - the chain of causation was broken due to 3rd party acts.
Legal Causation - New intervening act - Acts of third parties - medical negligence
Treatment that is so gross and egregious as to be unforeseeable. Courts are reluctant to hold that medical negligence breaks the chain of causation. Tortfeasors take the risk that c may not respond well to medical treatment or that treatment may be unreasonable.
Legal Causation - New intervening act - Acts of third parties - medical negligence - case
Wright v Cambridge Medical Group - treatment was not so significant as to break the chain of causation.
Legal Causation - New intervening act - Acts of the claimant
A highly unreasonable act. This is rare, and normally dealt with under contributory negligence.
Legal Causation - New intervening act - Acts of the claimant - cases
McKew v Holland & Hanmen & Cubitts (Scotland) - unreasonable act
Wieland v Cyril Lord Carpets - reasonable act.
Remoteness - The test of reasonable foreseeability - case
The Wagon Mound (No 1)
Remoteness - The test of reasonable foreseeability
C can only recover if the type of damage suffered was reasonably foreseeable at the time d breached their DOC. This is an objective test.
Foreseeability - cases
Hughes v Lord Advocate - no need to foresee exact way in which damage occured
Bradford v Robinson Rentals - no need to foresee extent of damage
Remoteness cases - foreseeable types of damage vs. damage actually suffered
The Wagon Mound (No 1) - damage by pollution - damage by fire - no liability, too remote
Tremain v Pike - injury via direct contact with rats - Weil’s disease (rare disease contracted through rat’s urine) - no liability, too remote
Bradford v Robinson Rentals - cold-related injuries - frostbite - yes, same type of damage
Page v Smith - personal injury (general) - psychiatric harm - yes, same type of damage.
Eggshell/Thin skull rule
D must take v as they find them, will be liable for full extent of injury, even if injury was aggravated by c’s own weakness.
Eggshell/Thin skull rule - case
Smith v Leech Brain
