Causation and Remoteness Tort - created from Mind Map

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Causation

Factual Causation- But For Test. Breach of Duty must have caused the damage

Novus Actus Interviens

Problems

Multiple Causes

Lost Chances

Multiple Consecutive Causes

Defendant's breach must be the substantial cause of the damage

Material Increase of Risk-McGhee Test

Multiple causes

But for test is applied to the Original defendant.

Following Barker,where defendantsare being held liable on Fairchild basis, each defendant is only liable to the extent to which they increased risk to the claimant- Proportionate liability

Reversed by S3 Compensation Act 2006. Provides that all defendants are jointly and severaly liable. In Asbestos cases

Claimant establish liability by demonstrating that the defendant had been in breach of duty by exposing hhim to asbestos fibres and had thereby materially increased the risk of developing asbestos cancer

Third Party acts

Act of the Claimant

Acts of nature

Original Defendant will be liable where the intervening act does not cause the loss. The original defendant will be responsible for 'injury and damage which are the natural and probable results of the initial wrongful acts- Knightley v Johns

original defendant will be liable where the intervening act is one that should have been foreseen- Lamb v Camden LBC

Attached Study Aids

Mind Map - Gregg v Scott

Remoteness- Legal causation

Test of Remoteness - the correct test for remoteness is reasonable foreseeability of the kind or type of damage in fact suffered by the claimant - Wagon Mound No1

Impecunious Claimant

Egg-shell skull rule

Remoteness in psychiatric injury cases

Primary Victim

Secondary victims

For how much of the Claimant's loss should the defendant be responsible

The Breach of duty must be the factual cause of the damage. The general test used is the BUT FOR TEST

-Cork v Kirby MacLean Ltd

-Barnett v Chelsea and Kensington Hospital Management Committee

A new act intervenes. An intervening act may break the chain of causation between the defendant's breach of duty and the loss or damage suffered by the claimant.

- If the NIA is sufficient to break the chain, then the defendant may not be laible despite being breach of the Duty of Care.

- For the courts to decide whether an event will break the chain of causation

-jobling v associated dairies

Chance has some value in itself. Courts reluctant to impose liability where the negligence of the defendant caused the claimant to lose a chance of avoiding physical injury.

- Hotson v East Berkshire Area HA

-Performance Cars Ltd v Abraham

-Baker v Willoughby- -

C responsible for his own damage.

-in order for a NIA to succeed by act of claimant, it must be entirely unreasonable in all the cirucmstances.

- May be considered as a defence, of contributory negligence, leading to a reduction in the claimant's damage.

- Corr v IBC vehicles. - McKew v Holland & Hannen

Test in Re Polemis and Furness, Withy & Co. and in Wagon Mound 1 - The tests cannot be reconciled. Re Polemis test has never been overruled, thus BOTH TESTS remain good law.

Does not limit liability for the direct consequences of a negligent act, however severe or unforeseeable those consequences may be. It has been criticised for unfairness in that respect - Re Polemis.

Egg shell skull rule may not apply when the claimant's losses result from the claimant's lack of means.

Discussed in Liesbosch Dredger v SS edison

. Distinguished by CA in cases relating to mitigation of loss ( Perry v Sidney Phillips & Son ). Subsequently only considered to apply in exceptional circumstances - (Mattocks v Mann).

- PUT TO REST IN Lagden v O Conner .

Take victim as they are - liable for all of the losses.

Also relates to psychiatric injury. - Brice v Brown . Smith v Leech Brain

Intervening acts of nature will generally not break the chain of causation, However, the defendant will not normally be liable where the intervening act of nature is unforeseeable and seperate from the initial negligent act or omission.

- Carslogie Steamship v Royal Norwegian Govt

McGhee v National Coal Board - Test was used in favour of the claimant in Fairchild Case. Further Discussed in Barker

Where there is more than one possible cause of harm to the claimant, the claimant does not have to show that the defendants breach of duty was the only cause of damage or even the main cause of damage.

- Bonnington castings v Wardlaw

- Wilsher v Essex

-McGhee v National Coal Board

Proportionate Liability.

Sienkiewicz v Greif

Degree of foreseeability needed depends on whether victim is primary or secondary.

Defendant must or should have foreseen some physical injury to claimant

Even if no physical injury occurs, but psychiatric injury does, defendant is still liable.

Psychiatric injury must be foreseeable in a person of reasonable fortitude in the circumstances

Causation and Remoteness Tort

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