Falaq Lall
Mind Map by , created over 5 years ago

Mind Map on CAUSATION FLOWCHART, created by Falaq Lall on 05/08/2014.

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Falaq Lall
Created by Falaq Lall over 5 years ago
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1 Is the traditional test of causation satisfied per Barnett v Chelsea and Kensington? that is , can the claimant prove, my damage would not have occurred on the balance of probabilities, but for the defendant's negligence
1.1 YES- The claimant's damage would not have occurred, on the balance of probabilities , if the defendant had not been negligent . In other words, the defendant's negligence probably caused the claimant's damage (there is a 50% chance that the defendant's negligence caused the damage
1.1.1 Check for any outstanding causal issues: a) is the causal link to be determined subjectively (claimant's own evidence or objectively). b) does fairness/policy indicate that a causal link should not be upheld? c) is a weaker causal link justified because the breach was an omission rather than a positive act?
1.2 NO- The claimant;s damage probably would have happened regardless. That damage was on the balance of probabilities, caused by some event other than the defendant's negligence that is a) by another tortfeasor's negligence b) by an innocent agent c) claimant's own negligence d) by a docto's omission, fixing omission would not have prevented damage
1.2.1 In the case of d) above, apply the two part causal test in BOLITHO and hypothesise that the doctor had corrected the omission: a ) would the doctor then have done a further act X would have prevented the damage.? b) if the doctor had not done X would it have been negligent for him not to have done so? if either answer is yes omission caused damage and causation succeeds.
1.3 DON'T KNOW. Defendant's negligence was present in the factual matrix; but it is impossible to say with evidential certainty whether the defendant's acts or omission caused the claimant's damage, over and above the 50% threshold of probability
1.3.1 Has the claimant's damage been caused by one 'agent' which has the capacity to contribute negligently and non-negligently to that damage? Or have different 'agents' possibly caused the claimant's damage (one of which was a negligent agent), but none of which can be proven to be the probable cause of the claimant's damage? One agent: Causation will succeed per McGhee/Fairchild If Several agents, then causation will generally fail : Wilsher v Essex, Gregg v Scott

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