Causation

Question 1

Factual causation: ‘but for’ test?

Answer 1

On the balance of probabilities, but for D’s breach of duty, would C have suffered their loss at that time and in that way.
* If no, factual causation is satisfied and C would not have suffered loss were it not for D’s breach
* If yes, factual causation is not satisfied and D is not liable as C would have suffered their loss even without D’s breach

balance of probabilities = more than 50%

Question 2

What happens in cases where there are more than one probable factors that caused C’s breach?

Answer 2

• Held that C has to establish that it was** more likely than not** that the breach was caused by D’s act and not the other factors - high threshold to prove.

Question 3

How does factual causation work in clinical negligence where breach is failure to advise on risks?

Answer 3

Chester v Afshar:
* courts took a relaxed approcah in that where the breach is a failure to advise on risk, the ‘but for’ test is satisfied if C can prove on the balance of probabilities that had they been warned of the risk, they would not have had the operation or deferred it to a later date.

Question 4

What are the exception to the ‘but for’ test?

Answer 4

• Material contribution test?

Question 5

What is the material contribution test?

Answer 5

Applied to factual causation when there is more than one cause of C’s loss and causes were acting together to cause the loss.

Idea of test is: if D’s breach could be proved to have materially contributed to C developing disease, then D would be liable for loss. - deviates from but-for test.

Key case: Bonnington case

material contribution = more than negligible contribution

Question 6

In what other circumstances does the material contribution test apply?

Answer 6

• Sequential cumulative causes (e.g., one sufferes a head injury from a fall then receives negligent medical treatment and medical evidence is that both cause damage.
• Simultaneous cumalative causes (e.g., causes operate the same time
• for divisible injury, D may be liable only to extent to which they materially contributed to the injury
• for indivisible injury, D will be liable for whole injury, regardless of their level of contribution .

Question 7

What is another alternative to the but-for test and what is it?

Answer 7

Material increase in risk - C has to prove the breach increased the chances of C suffering loss (contribution to risk must be greater than de minimus)

seems to be confined to single agent industrial disease cases

Question 8

Loss of chance arguement?

Answer 8

Does not seem to apply to medical negligence or PI cases but the court have allowed the test in cases involving pure economic loss - prove ‘real and substantial chance’

Question 9

When factual causation has been established, what calculation applies?

Answer 9

Apportionment: courts apportion liability between the defendants in a way that produces a practical result, proving compensation to C while recognising respective fault of defendants.

Question 10

What does s.3 Compensation Act say in respect to mesothelioma cases?

Answer 10

Ds are jointly and severally liable - meaning any negligent employers who exposed C to abestos will be liable to C for whole sum of damages.

D’s liability is ceased and does not have to compensate C for any ‘vicissitudes of life’

Question 11

Legal causation?

Answer 11

D has burden to assert and prove legal causation (break of chain of causation) - while factual causation establishes a link between breach and the damage, legal causation find whether link can be broken.

Question 12

What is an example of an intervening event?

Answer 12

Acts of God/natural events
- must be an exceptional natural event
- natural events that can be foreseen and S should have taken them into account will not break causation.

Question 13

What’s another type of an intervening event?

Answer 13

Acts of third parties
- highly unforeseeable act of a third party can break causation

In cases of medical treatment, courts are reluctant to break chain of causation unless it’s so gross and egregious as to be unforeseeable

Question 14

What’s the third intervening event?

Answer 14

Acts of the claimant
- act must be highly unreasonable
- rare for this to be break chain of causation as it can be used as a defence whereby D is still liable for C’s loss but damages may be reduced as a result of contributory negligence