Flashcards
Revision - Causation
Flashcards do conjunto (40)
- 1What is the 3rd element in proving negligence?Causation.
- 2What did Lord Nicholls state in Kuwait?The extend of the defendant's liability for the claimant's calls for a tow-fold enquiry:
1. Whether the wrongful conduct causally contributed to to the loss, and if it did;
2. What is the extent of the loss for which the defendant ought to be liable. - 3What is the starting point in causation?The 'but for' test.
- 4What happened in Barnett v Chelsea and Kensington?Claimant's husband attended hospital complaining of vomiting.
Doctor refused to examine him, sent him home and told him to call his doctor in the morning.
Five hours later he died of arsenic poisoning. - 5Was there a breach of duty in Barnett v Chelsea and Kensington? - What was held? - Why?Yes, refusing to examine claimant.
- No liability.
- The claimant would have died even if he had been examined. - 6Chester v AfsharDefendant advised claimant to undergo surgery on spine.
Defendant did not inform of risk to surgery which claimant sustained.
Held that since the judge had not found that the claimant would never have undergone if she knew the risk causation was not satisfied.
However was negligent for not informing of risk beforehand. - 7What did Lord Nichols state in Fairchild (2)?The law limits and extends the damage which a defendant will be liable, even when the damage passes the 'but for' test.
Where justice requires, the threshold may be lowered. - 8What has to be determined if it is uncertain whether the defendant's negligence caused the damage? - Who has to do this?Degree of probability has to be established.
- The claimant. - 9Who is the burden of proof on? - How must the prove it?The claimant.
- On the balance of probabilities. - 10McWilliams v Sir William Arrol?Experienced steel erector fell to his death when working at a height of 70ft.
Widow claimed damages as a safety harness was not available.
- Held employers were not liable as they proved that on the balance of probabilities he would not have worn a harness if one was available. - 11Hotson v East Berkshire?13-year-old boy fell from a tree and suffered a fracture.
Hospital did not correctly diagnose injury.
Boy returned 5 days later and it was correctly diagnosed but he would have permanent disability of his hip.
- Held that the fall had caused this damage not the failure to diagnose, therefore hospital was not liable. - 12What happens if the cause is 49% or less proven?Factual causation is not proven.
- 13What is one exception to the 'but for' test?Material contribution.
- 14What must be established for material contribution?1. Only one agent could cause harm. Claimant exposed to it both innocently and tortuously.
2. Defendant failed to take precautions.
3. Breach pre-dates the claimant's suffering harm which agent causes.
4. Claim cannot prove on the balance of probabilities that his harm was result of defendant's breach.
5 - Highest that can be proven is defendant's breach materially increased risk of harm. - 15FairchildThree claimants were exposed to asbestos by separate employers.
It was not scientifically possible to determine under which employer they contracted mesothelioma.
- Proof that each employers conduct had materially increased the risk of contracting the disease was sufficient to satisfy the causal requirements for liability. - 16McGhee v National Coal BoardClaimant was exposed to bricks in his job with the defendant's.
He contracted dermatitis.
- They failed to take reasonable care to provide adequate washing up facilities.
- While it was not possible to determine whether providing washing up facilities would have prevented the breach, the employers failure to do so had materially contributed to the claimant contracting the disease and they were therefore liable. - 17What is the 2nd exception to the 'but for' test?Materially contribution to damage.
- 18Bonnington CastingsClaimant contracted pneumoconiosis by inhaling dust at work.
Some of the dust was 'innocent' and some was 'guilty' as it came from defendant's breach.
No evidence as to proportions.
- Claimant does not have to prove the the defendant's breach was the sole or main cause provided it materially contributed. - 19Bailey v MODOrdinarily in a case of medical negligence resulting in injury it was for a claimant to prove on a balance of probabilities that but for the negligence of the injury would have not occurred.
In cumulative cases, where science could not establish probability, but could establish that the contribution of a negligent cause was material, court was entitled to a modified test. - 20What is the 3rd exception?Loss of chance.
- 21What is Bolitho causation?Defendant commit a breach by omission and alleges that even if they had hypothetically fixed that breach by some positive act the claimants damage would have still occurred, then the claimant must establish a causal link between the defendant's original omission to act and the claimant's ultimate damage.
- 22Wisniewski v Central ManchesterClaimant suffered irreversible brain damage.
Alleged omission on part of gynaecologist was that he did not perform an artificial rupture of the birth membrane.
Had they done this, they would have detected a substance which would indicate they should do this.
Causation was proven.
If defendant fixed omission, court would've been satisfied that they done the further act.
If they didn't, court would've been satisfied they were negligent in not doing so. - 23Gregg v ScottClaimant consulted GP about lump under arm.
Turned out it was form of cancer which was not identified.
Claimant could not prove that delay had caused it.
No compensable harm. - 24What is a novus actus interveniens?Act which breaks chain of causation.
- 25Wright v LodgeDriving along busy road, car broke down.
Low visibility.
Didn't move car to hard shoulder.
Lorry driver approached speeding and had to swerve.
Crossed onto other side of carriageway and collided with a car.
Second driver's conduct constituted a novus actus interveniens. - 26Chubb FireThree teenage boys entered church while locked.
Let off fire extinguishers.
Clean up cost £250k.
Sued fire extinguisher manufacturers claiming they didn't warn that discharge would cause a mess.
Claimed they wouldn't have bought dry powder ones.
Court held it was a novus actus interveniens. - 27McKew v HollandInjured back and hips at work.
Jumped down staircase and hurt ankle.
Constituted a novus actus interveniens. - 28Baker v WilloughbyClaimant injured by negligent driving by first defendant.
Leg was permanently stiff.
Claimant was then shot in leg by armed robbers.
Couldn't outrun them with his leg.
Held first claimant was liable for both injuries. - 29Re PolemisPetrol vapour accumulated in hold of ship.
In order to move benzyne to defendant's ship workers placed planks across hatchway to transfer cases.
Plank fell into hatchway.
Fire erupted and ship was destroyed.
Held they were liable for damage even though it was not foreseeable. - 30Wagon Mound 1Workers working on ship in harbour told oil was not flammable.
Fire was ignited by cotton rag floating in debris.
Defendants couldn't foresee this would happen and were therefore not liable. - 31Tremain v PikePlaintiff worked as herdsman for farmer.
Contracted disease through contact with rat's urine.
Held that the defendant's were not in breach of duty since the possibility of plaintiff contracting disease through rat urine was not foreseeable. - 32Hicks v YoungClaimant suffered a brain injury when he fell from a moving taxi.
Held that it was foreseeable that the claimant would try to escape. - 33Corr v IBCDefendant struck on head by machine he was working on.
Disfigured after this and suffered PTSD.
Committed suicide six years after.
Held depression was foreseeable and suicide was not a novus actus interveniens. - 34What was stated in terms of foreseeability in Hughes v Lord Advocate?Need to foresee the precise form of damage but foresee some damage.
- 35Smith v Leech BrainMolten metal splattered in factory due to unfair practises.
Some landed on claimants face and lip.
Claimant had a predisposition to contracting cancer.
Burn injury developed into cancerous state.
Three years later claimant died of cancer.
Held death was not too remote.
Didn't need to foresee burn causing cancer only burn itself. - 36Robinson v Post OfficeSlipped on oil under ladder acting for defendant and crazed his shin.
Had anti-tetnis serum injected.
9 days later he developed water on the brain which caused brain damage and paralysos.
This was a rare reaction to an anti-tetnis jag.
More likely to happen if patience has previous dose, which claimant had.
Held defendant was liable for all consequences. - 37Simmons v British SteelClaimant suffered knock to head after fall due to defendant's negligence.
Suffered exacerbation of pre-existing skin condition and depression.
Held both were not too remote. - 38Claimants damage must fall __?Within the scope of the duty which the duty owed the claimant to protect the claimant by the exercise of reasonable care. Otherwise the damage will be regarded as too remote to be compensable.
- 39South Australia Asset ManagementVarious banks were the claimants.
Loaned money to developers on basis of valuables based on valuers (defendants)
Mortgage security.
Properties were negligently overvalued.
Loss was also cause by a substantial fall of the property over the loan period.
Held by HoL that the claimants were entitled to recover damages, however it was measured by the difference between true value of the security and negligently prices at day of valuation. - 40—
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- Old FlashCards sobre Revision - Causation, criado por Jordan Quigley em 19-10-2018.
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