Summary
Summary Tort Law: Negligence - Causation
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CAUSATION (NEGLIGENCE)1. INTRODUCTORY POINTS/CONTEXT
The link between causation and remoteness
CAUSATION AND REMOTENESS
Did the breach cause the damage? – this is often referred to as “causation in fact”
Was there a break in the chain of causal events? – this is often referred to as “causation in
law”
Was the damage caused so “remote” – unforeseeable – that we are not prepared to hold
the defendant liable, even though the breach did cause the damage – often referred to as
“remoteness of damage”
D can only recover damages from D where D caused or materially contributed to C’s harm. In most
cases C will have to prove a causal link between D’s breach and his own damage on the balance of
probabilities. If the harm would have occurred without the defendant’s carelessness, there is no
cause in fact.
Causation arguably most doctrinally complex of the elements in negligence – Mulheron. Lord Mance
in Zurich Ins plc v UK Branch v Int Energy Group Ltd – admitted that the ‘courts are still working out
the implications’ of previous appellate rulings on causation.
The burden of proof lies with the claimant to prove causation on balance of probabilities – (Pickford
v ICI)
Note that policy considerations and value judgments infuse the analysis on causation.
PRE-REQUISITE
C suffered compensable damage
Straightforward issue of whether C suffered some- legally recognized compensable damage, to
found a cause of action.
o Don’t need supporting authorities to prove it Clough v First Choice Holidays and Flights
Ltd
Where it is a problem
De minimis threshold of damage
o The law does not take account of trifles- lack significance to be actionable Per Maurice
Kay LJ in Hussain v CC of West Mercia Constabulary
o C suffered some anxiety-based disorder then that type of damage on its own, doesn’t
surmount the de minimis principle, must have a actionable physcial harm as well.
But, 1963 HL endorsed the view that those who sustained physiological changed
from inhaled substances did suffer actionable damage Cartledge v E Jopling &
Sons Ltd
The loss of a chance claim
o Has had lack of success in personal injury claim not so much in economic loss claims.
THE FIRST STEP
‘but- for’ test
The exclusive certainty club
o Where C’s harm would have occurred with absolute certainty because of some
innocent causes, regardless of D’s breach of duty, then the breach didn’t cause the
harm (proving to this standard is not actually required)
Barnett v Chelsea and Kensington Hospital Management Committee
(leading case)
guy had stomach pains, doctor sent him home without examining
properly. Cause of death Arsenic Poisoning- doctor couldn’t have
saved him anyway
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