Mapa mental
Causation
Conteúdo do mapa
Causation
1) What test governs the situation
- But For Test: The Standard Test; Run fully though first; Pl Must show on Balance of Probability
- 1) Is it an Established Exception to the But-for Test
- if no
- Test for factual causation Based on a Robust, pragmatic approach
- Would the injury occured were in not for the negligence of defendants actions
- If No (meaning the pl would not have been injured)
- Causally Effective
- If Yes; Not causally effective; (injury would have happened anyway)
- Kauffman v Toronto Transit Comission (OnCA) 1960; Type of handrail was NOT the cause of injury
- negligence claim brought in not testing handrail
- Barnett v Chelsea & Kensington Hospital [1969]; Arsenic poisoning, same result (death) would have occured w/o neg.
- Neg Claim brought b/c doc didn't see patient
- Richard v CNR (PEISC) 1970; Plaintiffs rash act reson for backing into water not negly untying rope
- Kauffman v Toronto Transit Comission (OnCA) 1960; Type of handrail was NOT the cause of injury
- Snell; Clements said you can use common sense and other things to get it to that balance of probabilities
- If No (meaning the pl would not have been injured)
- Snell/ Clements
- Would the injury occured were in not for the negligence of defendants actions
- Test for factual causation Based on a Robust, pragmatic approach
- If Yes
- Established Exception to But-for
- 1)Multiple Negligent Defendants
- If: 1) 2 Negligent Defendants; 2) One of them MUST HAVE caused Loss; 3) Impossible to prove; --> Burden will flip
- Cook v Lewis (SCC) 1951; 2 shots @ same time, 1 bullet to the head
- If: 1) 2 Negligent Defendants; 2) One of them MUST HAVE caused Loss; 3) Impossible to prove; --> Burden will flip
- 2) The learned Intermediary rule
- Products unavalable directly to consumers must have thier dangers told to the intermediary (eg a docto) to releive the manufacturer of duty/cause
- Hollis v Dow Corning Corp (SCC) 1995; manufacturer didnt tell doc therefore manufacturer liable
- Subjective test when dealing with Manufacturers Duty To Warn
- Hollis v Dow Corning Corp (SCC) 1995; manufacturer didnt tell doc therefore manufacturer liable
- Products unavalable directly to consumers must have thier dangers told to the intermediary (eg a docto) to releive the manufacturer of duty/cause
- 3) Informed Consent
- Would a reasonable person have consented had they been adequately informed
- If They wouldnt have consented; Negligence is a cause
- Hollis v Dow Corning Corp (SCC) 1995; Wouldnt have consented to boob if she knew it could rupture
- If they still would have consented, not a cause
- Reasonable person in situation (Obj./Subj test) upheld time and again
- Hopp v Lepp (SCC) 1980
- Reibl v Hughes (SCC) [1980]
- Arndt v Smith (SCC) 1997; though verdict was split
- In order to limit self serving pl. complaints
- If They wouldnt have consented; Negligence is a cause
- Would a reasonable person have consented had they been adequately informed
- 1)Multiple Negligent Defendants
- Established Exception to But-for
- if no
- 2) Does it fall outside the scope' Usefulness of the But-For
- If But-For Produces a fair result then end analysis
- If But-For does not produce a Fair result
- Material Contribution to injury Test
- Did the def. neg. (w relation to providing standard of care) contribute to injury outside de minimus range
- Athey v Leonati SCC 1996 for de minimus
- Subjective Element
- Limited by Hanke; Only available if meets 2 conditions
- 1) Pl. Must establish it impossible to prove causation using but-for; and impoibility is due to uncontrollable factors (eg scientific knowledge
- 2) Pl must est that def breached SOC and injuries are within the risk created by this breach
- hanke v Resurfice Corp [2007] SCC
- Cook v Lewis and Walker; Hanke said fit criteria
- Walker estate v York Finch General Hospital 2001 SCC; When appropriate SOC was applied, Robert wouldnt have given blood, Since it wasnt applied he did
- Negligent failure to provide proper SOC caused HIV transmission
- Walker estate v York Finch General Hospital 2001 SCC; When appropriate SOC was applied, Robert wouldnt have given blood, Since it wasnt applied he did
- Cook v Lewis and Walker; Hanke said fit criteria
- Problems with MCT
- Courts unclear whether its to risk or to injury
- If injury its covered under But-for
- If risk its covered under Materially increased risk
- Courts unclear whether its to risk or to injury
- Clements said risk is better
- Contributing factor material if falls outside deminimus range (Athey; Walker Estate)
- Did the def. neg. (w relation to providing standard of care) contribute to injury outside de minimus range
- Materially Increased Risk
- 2 theories re: Burden of proof
- If def. Neg increased risk AT ALL of particular injury, and pl gets that injury, burden of proving causation shifts to def (to prove he didnt cause
- Mcgee v National Coal (HL) 1972; Per Lord Wilberforce
- Legal burden of proof (on balance of prob) rests with the pl. however inference of risk= causation is drawn, unless def. has proof of the contrary
- Snell v Farrell (SCC) 1990
- Quoting Wilsher v Essex Area Health (HL) 1987
- causation burden shifts to defendant ONLY WHEN defendant has exclusive knowledge
- Snell v Farrell (SCC) 1990
- If def. Neg increased risk AT ALL of particular injury, and pl gets that injury, burden of proving causation shifts to def (to prove he didnt cause
- Clements v Clements SCC 2012
- Contributing factor material if falls outside deminimus range (Athey; Walker Estate)
- 2 theories re: Burden of proof
- Proportionate cause and loss of chance
- When Breach of SOC provides only a portion of an unavoidable loss; or a loss of change (eg would have had 25% chance to live if i didnt fuck up the surgery) must only be responsible for that amount
- sindell v abbott Laboratories (AmSC) 1980
- Janiak v Ippolito SCC 1985
- Holtby v Brigham
- Clements v Clements SCC 2012
- When Breach of SOC provides only a portion of an unavoidable loss; or a loss of change (eg would have had 25% chance to live if i didnt fuck up the surgery) must only be responsible for that amount
- Material Contribution to injury Test
- Snell
- Clements
- 1) Is it an Established Exception to the But-for Test
- But For Test: The Standard Test; Run fully though first; Pl Must show on Balance of Probability
When Parallell injury occurs before Court
- Not liable for what would have happened anyway that you didnt cause
- Penner v Mitchell 1978 CA
- Still liable for what you cause regardless if intervening act renders your tort obscolete
- baker v willoughby [1970] HL
- dillon v twin state gas; only compensated if fall would have left crippled; value of between crippled and death;; not compensated if fall would have left him dead
- Not liable for what would have happened anyway that you didnt cause
Pl. only has to establish that Def actions was A cause not the biggest cause
- Pl Only has to prove it on the balance of probabilities
When Multiple Causes
- Must state breach of SOC and Injury; And divide separate breaches and injuries
- IF INDIVISIBLE
- Independant insufficient Causes
- If tortious conduct is cause and non-tortious conduct is a contributing cause, D liable
- But For Test: If injuries would have occured w/o tort, no causation if injuries would have occured with the tort--> causation
- Athey v Leonati SCC 1996
- Accident and then stretching after caused slip disc; def held accountable b/c wouldnt have happened w/o accident and just normal stretching
- 25% is outside deminimus range; less than that is unclear
- Athey v Leonati SCC 1996
- Thin skull rule applies: Take victims as they are
- Athey v Leonati SCC 1996
- Crumbling skull rule applies: Not liable for effects that would have been caused by a precondition anyway
- Liable for additional but not preexisting damage: must return victim to how he was/ would be no net gain or loss
- Athey v Leonati SCC 1996
- Liable for additional but not preexisting damage: must return victim to how he was/ would be no net gain or loss
- But For Test: If injuries would have occured w/o tort, no causation if injuries would have occured with the tort--> causation
- Ambiguity to extent each caused a tort will hold both parties equally responsible
- Nowlan v Brunswick Construction SCC 1975 re: Architect and carpenter
- Use Clements; Pragmatic Robust But- For
- If tortious conduct is cause and non-tortious conduct is a contributing cause, D liable
- Independant Sufficient Causes
- Both create a tort on thier own that creates an indistict overall tort
- Basically the material contribution test
- Responsible for ones tort, even though it would fail but-for tesr
- Lambton v Mellish 1894
- Responsible for ones tort, even though it would fail but-for tesr
- Basically the material contribution test
- Both create a tort on thier own that creates an indistict overall tort
- Independant insufficient Causes
- IF INDIVISIBLE
- Must state breach of SOC and Injury; And divide separate breaches and injuries
Informações
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- Mapa Mental sobre Causation, criado por itmutter13 em 21-04-2015.
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- itmutter13
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- Criado por itmutter · 21 abr 2015
- Copiado por itmutter13 · 21 abr 2015
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