3. Causation

Question 1

Factual Causation: Standard Test

Answer 1

The ‘but for’ test
- But for the defendant’s breach, would the claimant’s harm not have occurred
- If answer is YES, satisfied factual causation
- If answer is NO, not satisfied

Question 2

Who has the burden of proving factual causation? What standard?

Answer 2

Claimant, on balance of probabilities

Question 3

What modified test will the court apply (wrt factual causation) where there are multiple, simultaneous causes

Answer 3

The Material Contribution Test
- must have a material contribution to the harm
- would fail the but for test

Question 4

Material Increase in Risk test - when is this used

Answer 4

Cases of scientific uncertainty (like mesothelioma)
- Defendant’s actions must have led to a material increase in the risk of injury
- Same type of thing (eg dust)

Question 5

What happens if a claimant is injured more than once?

Answer 5

If the claimant has already suffered damage, a later defendant who cases a later injury should only be liable to the extent that they make ‘the injury worse’

Question 6

Divisible Injury: One main example, how do divisible injuries apportion damages?

Answer 6

Asbestos
- Longer the exposure, the more severe the injury
- disease can be apportioned on a time basis between different defendants (eg. employers)
- C can only obtain a % of damages from each defendant

Question 7

Indivisible Injury with multiple defendants: how are damages given?

Answer 7

• Court can divide blame between D’s
• C can obtain 100% of damages from any D
• D must claim contribution from other D’s to recoup the funds

Question 8

Establishing Legal Causation: Key Steps

Answer 8

1. Are there any intervening acts
2. Is the damage ‘too remote’

Question 9

Acts that WILL break the chain of causation

Answer 9

• negligent (careless) acts of a 3rd party WILL break the chain if their actions are not reasonably foreseeable
• reckless or intentional acts of a 3rd party will generally break the chain
• C’s actions, if they are wholly unreasonable

Question 10

Acts that WILL NOT break the chain of causation

Answer 10

• Instinctive act of a 3rd party will not break the chain

Question 11

Remoteness in damage: Key question

Answer 11

Is some / all of the harm suffered by the claimant too far removed from the actions of the defendant for them to be responsible

Question 12

Basic Test: Remoteness

Answer 12

Is the TYPE of damage reasonably foreseeable

Question 13

‘Similar in Type’ rule for Remoteness of Damage

Answer 13

• the precise way the harm occurred does not need to be reasonably foreseeable

Question 14

‘Egg Shell Skull’ proviso

Answer 14

• the precise extent of the harm suffered by C does not need to be reasonably foreseeable
• Must take victims as we find them