Flashcards
causation for tort
Cards in this deck (19)
- 1what is causationwhere C must show a causal link between Ds act/omission and loss of damage suffered (chain of causation)
- 2factual causationbreach of duty must be the factual cause of damage- the but for test
-if the damage would not have happened but for a particular fault then the fault is the cause of the damage- Cork.
-Barnett- hospital not liable despite clear breach in failing to treat patient as it wasnt the cause of death - 3proof of damage as an essential element (asbestos cases)rothwell- exposure to asbestos.
HL held symptomless plaques were not compensable damage and that the risk of future illness about the possibility of it materialising to damage for the purposes of creating a cause of action. (not possible to establish claim by aggravating 3 heads of damage) - 4problems in proving causation1) multiple causes- but for test applies to original D.
- 5lost chance of recoverycourts extremely reluctant to impose liability where the negligence of D caused C to lose a chance.
Hoston- since there was only a 25% chance that negligence had caused the boys injury, didnt satisfy on balance of probabilities.
Gregg v Scott- D negligently misdiagnosed Cs cancer, delaying his treatment and reducing his chances of being cured from 42% to 25%.
(followed Hoston- C couldnt establish D prevented him from being cured as original chance was below 50%) - 6multiple consecutive causes of damagemore than one possible cause of harm, C doesnt have to show Ds breach was main/only cause.
Bonnington- since dust was a partial cause of damage, D liable.
-C must show D materially contributed to the damage.
-difficult when more than 2 causes; Wilsher: not established- none of potential causes was more likely to have happened than any of the others.
-where more than one cause, Ds breach must be substantial cause - 7materially increasing the risk of damageMcGhee- although employer not liable for injury resulting from Cs exposure to dust in the normal course of his work, failure to provide washing facilities had materially increased the risk as he was caked in dust for longer- employer liable for this.
- 8fairchildmcghee was used in favour of C by HL.
- C had worked for several different employers (all who had exposed him to asbestos and he contracted mesothelioma)
-wife sued on his behalf but as a single fibre of asbestos can trigger it, couldnt pinpoint it to a single employer.
-used mcghee test: whether D had materially increased risk of injury- employers liable jointly and severally. - 9barker v corusfairchild further considered in this case- Cs husband died from this cancer, exposed to asbestos during 3 periods- judge held Ds jointly/severally liable but damage reduced by 20% for CN
- 10distinction in fairchildall possible Ds had wrongly exposed D to asbestos- HL held that this wrongful exposure was not necessary criteria for liability- a D who wrongly exposed the C still liable even though other exposure was natural or resulted from deceased's CN.
- 11main Q in Barker v Corus-whether solvent employers should bear additional proportion of damages for which insolvent employers responsible.
-HL held that solvent employers should not (Hoffman: should not be liable for more than the damage they caused)
-justification for joint/several: if you caused harm, no reason why your liability should be reduced because someone else caused the same harm. - 12following Barkerwhere Ds liable on fairchild basis, each D is only liable to the extent to which they increased the risk to C- proportionate liability.
-this has been reversed by S3 of compensation act 2006- (refers specifically to mesothelioma cases) each D is liable jointly/severally liable. - 13novus actus interveniensan intevrening act may break the chain of causation between Ds breach of duty and Cs loss/damage- if this happens D may not be liable despite being in breach
- 14who can an intervening act be?1) third party- the original D will be liable where the intervening act doesnt break the chain.
original D will be responsible for the injury and damage which are the natural and probable result of wrongful act (Knightley)
-original D liable where intervening act should have been foreseen (Lamb) - 15who can be an intervening actan act of the C- will mean C is responsible for his own damage.
mckew- attempted to ascend a steep staircase without a handrail/assistance knowing his legs gave way- this was an intervening act and C liable.
-for this to work Cs act must be completely unr/able- Corr - 16who can be an intervening actan act of nature- not generally break the chain- however D not normally liable when intervening act of nature is unforeseeable and separate from act.
Carslogie- not liable for damage casued by storm; storm could have happened at any time and storm damage was separate to the collision. - 17remotenessis the extent of the damage suffered by C which should be attributable to D. (for how much of C's loss should D be liable?)
re polemis- Ds liable for all damage. (regardless of foreseeability)
-this test doesnt limit liability for direct consequences of a negligent act, however severe or unforeseeable those consequences may be - 18wagon moundjudge at first applied principles from re polemis finding Ds liable for fire damage since fouling of wharf was foreseeable consequence on the leakage.
-decision reversed holding correct test is reasonable foreseeability of the kind/type of damage suffered by C. - 19egg shell skull ruleif type of injury is foreseeable but severity is not, due to a pre-existing condition of C, D will be liable for all injury.
Smith v Leech brain- burn was foreseeable but type of harm was not; employers liable for all damage (including cancer)
Information
- Description
- Flashcards on causation for tort, created by holmull on 04/05/2015.
- Created by
- holmull
- Views
- 0
- Rating