Causation - Tort

Question 1

Pre-Requisite for Causation

Answer 1

Is there compensable damage?

De minimis threshold

Reilly v Merseyside HA

Question 2

Key Illustrations of what the pre-requisite of causation looks like

Answer 2

Johnston v NEI International Combustion Ltd

-> Pleural Plaques

Thickening of the pleural lining of the lung - Symptomless , but small correlation between that and cancers

Question 3

Elements of Causation

Answer 3

• “But For” Test

If we cannot satisfy then

* Doctrine of material contribution to risk

* Doctrine of material contribution to damage

• Bolitho Causation Theorem

* Chester v Afshar Causation Theorem

**Severance - **Intervening acts in the casual chain (NAI)

Question 4

1st element

Answer 4

Would C’s harm have happened, but for D’s breach?’

Barnet v Chelsea

Mallett v McMonagle - 51% = 100%

Question 5

Does the court need absolute certainty? as to the causation

Answer 5

Barnett

court doesn’t require complete certainty to make a decision; it only needs to decide what’s more likely than not.

Question 6

What kind of reports may help assist the first element?

Answer 6

Statistical and epidemiological analysis may assist (but not always):

* Corby Group Litigation*

Question 7

On Element 1 what does it mean if D = 49 % in probabilities

Answer 7

Hoyle v Hampshire CC

If the negligent cause does not surmount the balance of probabilities threshold, then (subject to rare
exceptions, below), C fails to prove causation

Question 8

Element 1 and Omissions

Answer 8

1.) Course of Conduct vs. Pure Omission **— Tindall **

(Failure to apply a handbrake = positive conduct)

Courts prefer CoC to PO -> BUT IF THIS CANNOT BE DONE THEN

2.) Pure Omissions - Cunningham v Rochdale

Claimant must show that if the omitted precautions had been taken, the harm would probably not have occurred

Assuming DoC is already satisfied