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Mindmap

Causation 2

rachel.mcparlin Tort university Englisch

Inhalt der Mindmap

Causation 2

  1. Exception 4 - Loss of chance

    • arises when the D's breach deprived C of a better outcome
      • it cant be proven, on the balance of probabilities, that the claimant’s damage was caused by the defendant’s act or omission
        • but the claimant has lost a chance that can be measured in percentage terms
        • Gregg v Scott
        • Hotson v East Berkshire
  2. Exception 5 - failure to warn cases

    • Medical cases - if patient would have op anyway - it must fail, if they wouldn’t have then it may succeed
    • test is SUBJECTIVE
      • CHATTERTON
        • patients evidence as to what they would have done is tested against a reasonable patient with the same hopes and concerns
        • 4 factors when testing patients evidence
          • 1) how necessary was the operation for medical reasons?
            • the more necessary, the more likely it is the patient would have had the operation even if the risk had been given
              • Hills v Potter
                • condition was very grave and she needed relief - gravity of condition indicated that she would have proceeded with the operation
          • 2) whether patient had any past bad experience of medical treatment - was there a nervousness/fear of medical treatment
            • more wary they are of medical treatment the more likely the patient would have said no if the risk had been told
          • 3) patients employment situation is considered - how necessary was the operation?
            • if it isn’t necessary the patient may have declined the operation despite the warning being given
            • Smith v Salford
              • employment situation was so dire he would have proceeded with operation even if the risk had been disclosed
          • 4) to what extent did this patient show absolute trust their medical advisor to follow their medical representations?
            • if they always follow doctors advice then they would have had operation anyway
              • Hills v Potter
                • had always shown a great faith in following her doctors advice
        • Exception - Chester v Ashfar
  3. Intervening Acts

    • if there is a break in the chain of causation it is an intervening act
      • novus actus interveniens
    • scenarios
      • Fault of Claimant
        • act by claiamnt must be so unlikely as to be almost unforeseeable
          • McKew v Holland and Hannen
            • M suffered injury at work to leg
            • He decided to inspect flats and he was coming down a steep flight of stairs with no handrail and unaccompanied
            • His weak leg gave way and he fell and broke his ankle and suffered serious leg injury
            • HELD - YES this was an intervening act - it is legally possible for claimant to sever the chain of causation himself by his own lack of judgement
          • Wieland v Cyril Lord Carpets
            • car accident - W had suffered injury - and had a bad neck
            • tripped down stairs (had her son helping her)
            • said because of her neck she couldn’t see very well
              • neck was in brace
            • Held - this WASNT an intervening act
              • in contrast to McKew this was reasonable behaviour - W had assistance as she was disabled
      • By a second defendant’s negligence
        • Knightley v Johns
          • J negligently overturned his car in a tunnel - police were called and the senior police officer forgot to close the tunnel
          • instructed 2 police to ride on the motorcycles and close the tunnel
            • had to drive the wrong way down a one way tunnel to do so
          • one of police officers (Knightley) collided with a car and he is badly injured
            • police officer sued Johns, senior police and sued driver who hit him (Cotton)
          • HELD - C couldn’t be liable - this was an inevitable accident - nothing any reasonable driver could have done to avoid colliding with PC Knightley
            • 2) Johns wasn’t liable as police officers negligence was a novus actus - an intervening act 2 reasons
              • 1) true that none of these events but for mr johns negligence (D1)
              • 2) police officers conduct was so unforeseeable and unexpected that it must sever the chain of causation
      • By someone doing a criminal act following D1's negligence
        • criminal acts could sever chain of causation
        • Home Office v Dorset Yacht

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university Tort Mindmap am Causation 2, erstellt von rachel.mcparlin am 14/04/2015.
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