3 - TORT - Causation

Question 1

What must one prove for negligence?

Answer 1

Duty of Care
Breach
Causation
Remoteness

Question 2

What is the meaning of ‘res ipsa loquitur’?

Answer 2

Where only plausible explanation for C’s injury is D’s negligence:
a) thing causing damage controlled by D
b) accident wouldn’t normally happen w/o negligence
c) cause of accident unknown to C

Large sacks of sugar fell on C 🤕🍭

Question 3

What 2 things are required to prove causation?

Answer 3

• Factual causation
• Legal causation

Question 4

What is factual causation and how is it satisfied?

Answer 4

Establishing link between breach & damage
Apply ‘but for’ test: on balance of probabilities, but for D’s breach, would C have suffered their loss at that time, and in that way? If yes = satisfied

Question 5

What cases show the ‘but for’ test?
(Both are negative)

Answer 5

• hospital failed to carry out proper examination but evidence showed that V would have died either way - no causation ⏲️🧑‍⚕️☠️
• baby went blind any one of causes independently could have caused the blindness, one of the potential 5 causes was negligence. Only 20% chance of negligence therefore no causation.
  👶🎰🦯

Question 6

Where breach is failure to advise on risks, how is the ‘but for’ test satisfied?

Answer 6

Where C can prove they wouldn’t have had the treatment or would’ve deferred it had they been told

Question 7

What are cumulative causes?

Answer 7

more than one cause of the loss and the causes were operating together to cause the loss.

Question 8

What test is used to satisfy factual causation for cumulative causes operating together?

Answer 8

• more than negligible contribution
  Also applies to sequential cumulative cases

Question 9

What cases show cumulative causes?

Answer 9

• respiratory disease cause by exposure to dust 👷💨only some of the exposure was tortious. The disease was caused by the cumulative effect of both sets of dust. more than negligible contribution therefore factory owner liable 🌬️😷
• C choked on her own vomit caused by progression of disease and negligent act. more than negligible contribution therefore doctor liable 🧑‍⚕️ 🤮☠️

Question 10

What is a multiple agency case?

Answer 10

Each potential cause is unconnected but independently sufficient to cause harm. Therefore don’t know which act caused the harm

• baby went blind any one of causes independently could have caused the blindness, one of the potential 5 causes was negligence. Only 20% chance of negligence therefore no causation.
  🎰👶🦯

Question 11

What are single agency cases?

Answer 11

Where disease can be caused by one exposure (i.e. cumulative exposure is not required for disease) but C is exposed to both tortious and non-tortious exposures. 🎯

Question 12

What test is used for factual causation for industrial disease, single agency cases?

Answer 12

Material increase in risk test

Question 13

What is the case for single agency cases?

Answer 13

C got a skin disease from exposure to brick dust. Working with brick was fine, but not providing showers was not fine. Medical knowledge did not know whether exposure was cumulative or if a ‘one off’ exposure was enough. 🚿🧱👋

Materially increased risk because of increased exposure.

Applies to asbestos - different employers but as long as current employer ‘Materially increased risk’ they will be liable

Question 14

What must be applied if necessary once factual causation is satisfied, where there are multiple tortious factors?

Answer 14

Apportionment: apportion liability between defendants
In abestos cases, D’s are jointly and severally liable

Question 15

Is ‘loss of chance’ a potential claim?
🎲

Answer 15

No - D argued that their negligent care for their broken leg had robbed them of a loss of chance of a 25% chance of avoiding paralysis.

🦵🎲

Question 16

What happens if two incidents cause the same damage?

Answer 16

No damage could be held for 2nd event

Rolls Royce needed respraying after the first incident at the time the second incident occurred 🚘👨‍🎨

Question 17

What happens if there’s an intervening cause that wipes out the original harm?

Answer 17

Could still be liable for the original harm

• D caused C’s injured leg, C then had leg removed following being shot. D still liable even though leg no longer injured.
  🔫🦵🦿
• D gave C a bad back. D then suffered a further non-tortious back injury. D was liable up to the point of the second injury
  🩻⏲️🏋️‍♂️

Question 18

How does one prove legal causation?

Answer 18

That there was a NAI that broke the chain of causation:
- Act of God: exceptional natural event (not if foreseen)
- Acts of 3rd Parties: highly unforeseeable (unlikely where 3rd party is medical treatment unless so gross & egregious)
- Acts of Claimant: highly unreasonable (rare)

Question 19

What case shows acts of god?

Answer 19

Ship damaged by collision with D and taken for repair. On the way it suffered storm damage. D liable for collision but not storm damage.
🛳️⏲️🌪️🧔‍♀️

Question 20

What case shows acts of third parties?

Answer 20

car crash followed by poor handling of resultant traffic by police resulted in police officer being hurt. Broke chain of causation.
🚗🤡👮🦼

Child not referred by GP resulted in hip injury. Treatment eventually received by hospital was also negligent. Held hospital negligence was not enough to absolve GP’s negligence.
🥼🤡➡️🧑‍⚕️🥴

Question 21

What case shows acts of claimants?

Answer 21

D caused C’s injured leg. C tried to walk downstairs without a handrail, his leg gave way and he broke his ankle. C’s act was unreasonable so broke the chain of causation.
🦵🥴🪜

D caused C’s injured Neck. C tried to walk downstairs with help from son. she couldn’t see, slipped and broke her ankle. C’s act was not unreasonable.🦵😉🪜

Question 22

What is ‘remoteness’

Answer 22

D may be the legal and factual cause of C’s loss, but how liable is D for those losses?

Question 23

Does C need to show only that some harm would occur, or do they need to show that the type of harm would occur?

Answer 23

Type of harm

Question 24

What cases cover type of harm?

Answer 24

• Oil spill, liable for clean up but not for damage when oil set fire (which was unlikely)
  🛢️✅🔥❌
• C got a disease from rat’s urine. Found rat bites were likely, but not rat’s urine.
  🐀✅🫛❌
• Fan heater in Van didn’t work. Likely that some cold injury would occur therefore, frostbite fell within this sort of injury
  🚚🪭🥶✅✅

Question 25

Do you need to see the exact way damage will occur? (Inc. case)

Answer 25

No - oil lams left around a hole. Child dropped lamp into hole causing an explosion and burns. Burns were likely even if exact cause was not. 🪔🕳️🔥

Question 26

Do you need to foresee the extent of the damage?

Answer 26

No, once the damage is reasonably forseable, D is liable for full extent of damage. - Small explosion was foreseeable but not the huge one that happened. 🔥💥 - D Burnt C's skin provoking onset of pre-existing cancer. Once burn foreseeable they're liable to everything that follows (thin skull rule). 🔥🩹☠️