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CAUSATION - Flashcards
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- 1CausationThere must be a link between the defendant falling below the standard of care, and the injury suffered by the plaintiff.
- 2In an action for negligence, a plaintiff must prove...First – that the defendant owed them a duty of care based on the relationship
Second – that the defendant failed to take reasonable care – i.e. they fell below the standard of care expected
Third – that the failure to take reasonable care caused them to suffer an injury as a result. - 3--> Proof of BreachCourt will take a common-sense approach in imposing liability ...
Defendant will usually only be liable for damage where the plaintiff can prove he factually caused or materially contributed to the damage - and that damage is not too remote i.e. reasonably foreseeable. - 4Factual Causation: 1. The "But-For Test"Plaintiff is required to prove that the damage they suffered would not have been so suffered but for the defendant’s actions.
- 5Kenny v O'Rourke - plaintiff fell off a ladder and injured himself - ladder was employed by employer - he would not have suffered this injury but for his leaning too far to reach the place he wanted to paint. no liability on employer.Barnett v Chelsea & Kensington Hospital - man was brought to hospital in pain but not examined properly - sent him but died that night - it was held that he would have died regardless of what the hospital did - failed the but-for test.
- 6Geoghegan v HarrisDefendant failed to inform plaintiff that the procedure he was to undergo carried a minor risk of nerve damage - plaintiff suffered nerve damage but would have gone through with the surgery even if he were warned - court did not impose liability for the negligence of the defendant.
- 7Factual Causation: 2. The "Material Contribution" Test - any contribution which is not "de minimus"Did the defendant make a material and substantial contribution to the damage caused to the plaintiff?
- 8Bonnington Castings v WardlawPlaintiff contracted a disease from the dust from swing-grinders - was exposed twice - once was negligent, the other was not, but they couldn't say which was the cause of the harm - the employer was held to have made a material contribution and was therefore liable!
- 9Nicholson v Atlas Steel Foundry -P was widow of man who had worked for defendant and contracted a disease from minute silica particles which he died from - court imposed liability for a failure to have ample ventilation - hard to say if ventilation would have helped, but not having vents was a material contribution!
- 10McGhee v National Coal Board - the logic of this test begins to go astray ----P worked in kiln - no shower facilities at work - P would walk home in filthy clothes before shower - suffered dermatitis - could not prove that the lack of facilities caused it - court said that it "increased the chances" which caused difficulty in the law...
- 11Wilsher v Essex Area Authority -- An attempt to apply McGheeplaintiff born prematurely suffering from lack of oxygen - was given too much which caused blindness in later life - unable to prove that the oxygen was the cause of the blindness as there are a number of reasons this could happen - "increased chance" seems to mean any contribution might incur liability.
- 12Fairchild v Glenhaven Funeral Services --> When to apply each test?Plaintiff died of cancer from exposure to asbestos at work. D negligently exposed him to asbestos.
In special circumstances (serious cases?) the court may depart from the "but-for" test and use the material contribution test.
Strong policy argument to compensate those who have suffered grave harm. - 13Phillip v Ryan [2004]Supreme Court in Ireland allows plaintiff to recover for loss of opportunity where a late diagnosis would reduce his life expectancy - contrast to Gregg (FC) v Scott in the UK where this is not permitted.
- 14Quinn v Midwestern Health Board & OrsMaterial contribution test is not to be used for independent unlinked causes, where it is impossible to say which caused the harm - but if they are linked, and neither is de-minimus, they will both be a material contribution.
(P had been born at 39 weeks but argued that if she was born at 35 she would not have had severe brain damage - case was particular to its facts) - 15Williams v Bermuda Hospitals Board [2016] - UK Privy Council.complications suffered during surgery due to sepsis... negligent delay in treating the plaintiff.
Where on the balance of probabilities an injury had been caused by two or more factors operating cumulatively, one or more of which was a breach of duty, it was immaterial whether the cumulative factors operated concurrently or successively.
It was right to infer on the balance of probabilities that the defendant’s negligence had materially contributed to the process, and therefore materially contributed to the injury to the heart and lungs - 16Legal Causation: Process where courts identify reasons why a particular defendant ought not be held responsible for the injuries suffered. Defendant can distance himself from the harm which resulted from his conduct.Clabby v Global Windows & An Post - low-lying mailbox and wearing bag caused injury to postman - factual cause was the low mailbox but legal cause was his failure to remove his bag before bending - novus actus interveniens?
- 17Four Types of Legal Causation being contested:1. Novus actus interveniens “new intervening act” - break of chain of causation but the action in question is so crucial that it should be focused on – it wasn’t what to be expected.
2. The egg-shell skull rule
3. Remoteness of damage
4. Edison Rule - 181. Novus Actus Interveniens --> A new intervening act.The acts of an intervening 3rd party which serve to break the chain of causation between the defendant’s original action and the plaintiff’s injuries …
- 19Breslin v Corcoran & MIBIkeys left in car when went to shop - car was stolen and driven negligently causing harm to the plaintiff - court rejected the theft as a novus actus interveniens - must be liable for the expected results of a car theft -->
law requires us to be aware of potential dangers and guard against them - 20Crowley v AIB - failing to put up railings to prevent children from climbing on roof and you are aware of it is a novus actus as you omitted to make it safeMcKew v Holland - defendant caused P to have an ankle injury which resulted in him losing control of his ankle at times - yet he went down a stairs unaided - this was a novus actus and broke the chain of causation
- 21O'Brien v Dunnes Storesrescuer sought to hold Dunnes Stores liable for injuries inflicted by a third party when the plaintiff tried to help the defendant's employee in a scuffle - where facts can be expected results of the negligence, then they cannot be a novus actus.
- 222. Remoteness of Damage - The law does not hold a defendant liable for every type of damage that results from their actions but instead uses the test of reasonable foreseeability to determine whether the damage is ‘too remote’ to hold a defendant accountable.Historical vs Modern Approaches
- 23Historical Approach - Direct Consequences TestRe Polemis - plank dropped on ship causing sparks which caused explosion and destruction of property - was this reasonably foreseeable? Yes, some harm was likely to happen!
Liable for all the harm when some harm was foreseeable. - 24Modern Approach - Reasonable Foreseeability TestWagon Mound (No.1) - oil discharged into Sydney harbour - P was welding - stopped but told to continue - sparked and caused fire and destroyed the wharf and some ships -
only liable for foreseeable damage from initial action - - 25Wagon Mound rule approved in - Condon v CIEA number of people killed when train derailed due to defendant negligence - followed the Wagon Mound ruling in Ireland - “in determining liability for the consequences of a tortuous act of negligence the test to be applied is whether the damage is of such a kind as a reasonable man should have foreseen”
- 26Egan v Sisk - reasonably foreseeable that economic damage would occur if a warehouse was flooded - defendant was liable for the damageGaffney v Dundalk Town Council - plaintiff injured when fell into open water source owned and maintained by the defendant - it had been vandalised and interfered with - this was too remote - no liability
- 273. Eggshell Skull Rule - you must take the plaintiff as you find themif D can foresee some type of injury to the plaintiff they will be liable for all the damage that results, even where that damage is much worse than would have been foreseeable to him because of the peculiar condition of the plaintiff.
It can be characterised as an exception to the rules on Remoteness of Damage i.e. an exception to the rule in Wagon Mound and Condon v CIE. - 28Smith v Leech Brain & Co. Ltd. Plaintiff was hit on lip by piece of molten metal at factory of D - - developed cancer due to a pre-existing condition and died - held by court that it was sufficient that physical injury of some sort was foreseeable.McCarthy v Murphy - P's vehicle was struck from behind by D - minor tissue damage suffered, but later suffered serious depression from it - partly attributable to pre-existing depressive condition - eggshell skull applied and liability found.
- 294. Edison RuleLiebosch Dredger v SS Edison - ship sunk due to negligence of D's ship but P could not afford to buy new dredger and was contracted to finish a contract so they rented a new dredger - they wanted to sue for the rental fees.
court held the sinking of the ship as foreseeable, but not the renting of a new one - excluded damages suffered for financial difficulties. - 30Riordan's Travel v Acres -D damaged P's premises while demolishing another building - P claimed for damage to property, rent for accommodation, loss of profit and interest on funds borrowed to pay rent - allowed recovery for all - the need to borrow is a natural consequence of incurring additional expenses etc.
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- FE 1 Tort Law Fichas sobre CAUSATION - Flashcards, creado por Morgan Moriarty el 01/08/2020.
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