Flashcards
causation
Flashcards do conjunto (57)
- 1causationthe claimant will need to prove that the defendant's breach caused the claimant's injury or property damage
- 2to elements to causationfactual causation
legal causation - 3factual causationthe defendant is factually responsible for the claimant's harm
a matter of evidence/science - 4legal causationthe defendant should be held legally responsible for the claimant's harm
a matter of policy/value judgement - 5factual causation burden of proofbalance of probabilities
the claimant must prove that it is more probable than not that the defendant was the factual cause of his injury - 6But for testused in simple cases
'but for' the defendant's negligence would the claimant's harm still have occured - 7Barnett v Chelsea and Kensington Hospital management committee [1969]Barnett died of arsenic poisoning even though had been to hospital before
hospital was negligence but not liable
But for the doctors negligence Barnett would still have died - 8Wilsher v Essex Area Health Authority [1988]multiple potential causes
baby born prematurely
doctor administered excessive oxygen
baby suffered eye condition
excessive oxygen a known cause of condition
hospital not liable as doctors negligence was only 1 of 5 potential causes of the blindness
'but for' negligence may still have gone blind - 9Hotson v East Berkshire Area Health Authority [1987]75% chance would have suffered disability anyway
no liability as Hotson could not show on a a balance of probabilities that but for the hospital's negligence he would not have suffered permanent disability
all or nothing approach - 10Gregg v Scott [2005]House of Lords rejected loss of chance claims in personal injury/ medical negligence context
- 11cumulative diseasescaused as a result of prolonged exposure to toxic or dangerous substances over time
i.e. the gradual accumulation of the toxic or dangerous substance in the lungs - 12guilty exposureclaimant is exposed to a toxic substance as a result of his employer's negligence
- 13innocent exposurethis exposure is inevitable if the factory is to operate
- 14only guilty exposure is sole causeemployer is liable as but for his negligence would not have suffered lung cancer
- 15innocent exposure is the sole causeno claim - employer is not at fault in exposing the claimant to the toxins
- 16the 'causation problem' cumulative diseasesclaimant cannot prove that he would not have developed the disease 'but for' the defendant's negligence
but for test would fail
but there are exceptions - 17Bonnington Castings v Wardlaw [1956]exposed to silica dust work
some dust was innocent and some guilty
impossible to cause guilty was so cause
enough to that the defendant had materially contributed to the harm - 18Holtby v Brigham & Cowan (Hull) Ltd [2003]was negligently exposed to asbestos by number of employers
Holtby only entitled to recover damages proportionate to the negligence of the defendant
i.e. employer to pay damages proportionate to time exposure - 19indeterminate cause in employment contextmay not be medically or scientifically possible for the claimant to prove that the defendant's negligence is the factual cause of his injury
- 20McGhee v National Coal Board [1973]suffered dermatitis as result of exposure to brick dust at work
dust was innocent as work but became guilty after work as employer should have provided washing facilities
unclear how the brick dust caused dermatitis
may have been accumulation or a single abrasion - 21Link between McGhee and WilsherH of L applied but for test in Wilsher
did not overrule McGhee
McGhee was authority for no new proposition of law and was the result of a robust inference of causation from established facts - 22Fairchild v Glenhaven Funeral services [2002]exposed to asbestos by several employers and developed mesothelioma
unclear how asbestos causes mesothelioma
could not prove on a balance of probabilities which employer caused his mesothelioma
claim was successful
the employers had materially increased his risk of harm
wilsher was correctly decided on its facts - 23Barker v Corus [2006]exposed to asbestos by two employers one solvent and one insolvent
also exposed himself to asbestos
Fairchild should apply
damages reduced by 20% to reflect own negligence
employer only liable to pay damages proportionate to the asbestos exposure he was responsible for - 24S.3 compensation act 2006where conditions for applying Fairchild are met employer will be liable for the whole sum of damages though a reduction for claimant's own negligence still possible
defendants can then seek contributions from other defendants they believe to be responsible - 25Sienkiewicz v Greif [2011]two sources
negligent exposure at work
environmental exposure
suffered mesothelioma
employer argued that where only one employer but for test should apply
applied fairchild - 26Mesothelioma casesFairchild applies
- 27BAE (run off) Ltd v Durham [2012]in the context of mesothelioma claims 'the law accepts a weak or broad causal link'
- 28SienkiewiwczLord Brown
'save only for mesothelioma cases, claimants should henceforth expect little flexibility from the courts in their approach to causation' - 29Multiple sufficient causesthe defendant is negligence and causes an injury but before the trial a supervening event occurs which obliterates the effect of the first injury
should the defendant continute to be liable for the first injury after the supervening event - 30Baker v Willoughby [1970]the supervening event -the shooting- obliterated the effects of the first injury for which Willoughby was responsible
court of appeal - only awarded damages up until time of shooting
h of l - Willoughby should continue to pay compensation in respect of stiff leg he had caused after the leg was amputated - 31Jobling v Associated Dairies Ltd [1982]refused to follow Barker
associated dairies only had to compensate jobling for damage to his back up until time of disease
but for test applied in jobling
difficult to understand why the two cases are different
seems to depend on whether the supervening event is tortious or not - 32Legal causationa question of law
value/judgement/matter of policy
legal causation used as a control device to expand or restrict liability - 33break legal causation into two issuesshould the defendant be held responsible for the kind of harm the claimant has suffered?
if the defendant has triggered a chain of events, where should his liability end? will an intervening act break the chain of causation? - 34Re Polemis [1921]defendant liable for all of the direct consequences of his negligence
- 35Wagon Mound No 1 [1961]defendant will only be liable if the kind of harm suffered by the claimant was reasonably foreseeable
- 36The Wagon Mound (No 1) [1961]defendant not liable for the damage as the kind of harm suffered by the claimant was not reasonably foreseeable
damage by oil reasonably foreseeable but damage by fire was not - 37property damage case legal causation'kind of harm' very specific about what kind of harm needed to be foreseen at the time the breach occured
- 38Hughes v Lord Advocate [1963]manhole left open
child knocked lamp down hole and caused explosion
H of L - defendant held liable
reasonably foreseeable that the kind f harm Hughes would suffer = burns
the exact means by which these burns were sustained did not matter - 39Doughty v Turner Manufacturing Co [1964]more restrictive in relation to the 'kind of harm'
chemical reaction itself was not reasonably foreseeable
splash of liquid was foreseeable but not eruption of boiling liquid - 40Tremain v Pike [1969]farm allowed to become infested with rats
caught weil's disease
while injury from rat bites is foreseeable weil's disease was not
claim failed - 41Page v Smith [1996]'kind of harm'
it did not matter that psychiatric injury was not reasonably foreseeable provided some personal injury i.e. physical injury was reasonably foreseeable - 42Jolley v Sutton London Borough Council [2000]'kind of harm'
abandoned boat on councils property
council held liable
it was reasonably foreseeable that children would meddle with the boat at risk of some physical injury and this was sufficient - 43Smith v Leech Brain & Co Ltd [1962]important exception to the wagon mound rule
smith burnt on lip as result of defendants negligence
smith was suffering from pre-cancerous condition which became cancerous and he dies
this was unforeseeable but the defendant was held liable
once it is shown that the kind of harm the claimant suffers is reasonably foreseeable it does not matter that the extent of the harm is much greater than was foreseeable due to claimants pre-existing susceptibility
take their victim as they find them - 44Robinson v Post Office [1974]minor graze from slipping on oily ladder, suffered brain damage as a result of 'freak' reaction to anti-tetanus injection
- 45Lagden v O'Connor [2003]if claimant suffers heightened economic loss as a result of pre-existing financial difficulties defendant will be liable for the full extent of the loss
- 46intervening actscan take a number of different forms
- deliberate act of third party or claimant
- negligent act of third party or claimant - 47Lamb v Camden London Borough Council [1981]intervening act: squatters moved in and caused damage
lamb sued Camden LBC for damage to house and sought to include damage caused by squatters
chain of causation was broken and Camden LBC not liable for the squatters damage - 48deliberate act of third party: crime Lamb Why?Oliver LJ: very likely to occur
Lord Denning: question of policy for the judges to decide
Watkins LJ: instinctive feeling that the event or act being weighed in the balance is too remote to sound in damages for the plaintiff - 49Rouse v Squires [1973] negligent act of third party: road accidentscar collided with lorry
intervening act: D2 collided with the other vehicles and killed Rouse who was assisting at scene
chain of causation not broken
D1 had to contribute 1/4 of damage - 50Knightley v Johns Negligent act of third party: road accidentsjohns overturned his car
police inspector ordered knightley to ride back down tunnel against flow of traffic was struck by motorist
he sued johns, the police and driver that hit him
chain of causation was broken between johns and knightley
too much had happened and gone wrong between the events - 51negligent act of third party medical treatmentif the claimant has an adverse reaction to medical treatment which is properly administered: very unlikely to break chain of causation
if the claimant receives negligent medical treatment the chain of causation may be broken - 52Mahoney v Kruschick (1985)high court of Australia
where injury exacerbated by medical treatment can be regarded as foreseeable
the original injury can be regarded as carrying some risk that medical treatment might be negligently given - 53Webb v Barclays Bank [2001] negligent act of third party: medical treatmentintervening act: on consultants advice webb had leg amputated above the knee
amputation turned out unnecessary
- did not break chain of causation though the bank was entitled to a contribution from the hospital - 54The Oropesa [1943]negligent act of third party: rescue attempt
intervening act: captain later ordered rest of his crew into another lifeboat but high sea capsized the lifeboat and 9 people died
no breach in chain of causation
needs to be something unwarrantable - 55Reeves v Metropolitan Commissioner [2000] deliberate act of claimant: suicideprisoner committed suicide in police custody
police knew prisoner had suicidal tendencies
part of defendants duty of care to protect him
no break in chain of causation - 56Corr v IBC [2008] deliberate act of claimant: suicideCorr committed suicide years after a work place accident which left with physical and mental scars
intervening act: suicide
did not break the chain of causation
no so unusual as not to be reasonably foreseeable - 57McKew v Holland & Hannen & Cubitts [1969] intervening acts: negligent act of claimantMcKews leg would give way as a result of defendants negligence
went to view flat
- intervening act: jumped down the stairs to land on feet and not too fall but fell and injured
chain of causation broken
McKrew acted unreasonably
not in jumping but putting himself in a position where he had to jump
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- Descrição
- tort FlashCards sobre causation, criado por Yaz Rich em 04-05-2014.
- Criado por
- Yaz Rich
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