Causation and Actionability.docx - Causation and...

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Causation and Actionability (Especially Negligence) Elements of a successful Negligence Claim The existence of a Duty of Care protecting against the type of harm suffered A breach of duty in that the def objectively fell below the standard of care implied by the duty that existed The breach of duty caused what the law considers to be actionable loss Causation Determining when a breach caused a loss in tort law is quite complex but we usually take the ordinary understanding of causation as a starting point Therefore, how do we know, in our everyday lives, when x causes y? When does a breach cause loss? When the loss would not have occurred ‘but for’ the breach? When the breach materially contributes to the loss? When the breach materially increases the risk of loss When there is an unbroken chain of causation When is a loss actionable When the loss is not too remote a consequence of the breach When the harm is the type of harm that the duty of care protects against When the public interest does not prevent a successful claim When the claimant is not expected to avoid loss The ‘But-For’ Test – used to test whether if there is a claim or not We generally say that a breach caused the loss where the loss would not have occurred ‘but-for’ (i.e. without) the def’s breach of duty of care Barnett v Chelsea & Kensington Hospital Management Committee (1969) 1 QB 428 (HC) o The facts of the case illustrated the but-for test o Man came to the accident in emergency department in hospital, examined by the doctors on arrival Doctors failed to correct the diagnosis Doctors argued it was negligence on his part He breached his duty of care The man resisted causation but admitted the negligence part He has been poisoned with Arsenic – later died o Court – even if doctor had corrected the fault
The man still suffered from poisoning, he is going to die anyway But-for test is not satisfied Cl must establish on balance of probabilities (must be over 50%) def’s breach caused harm o On any of the def’s action o Otherwise ‘but-for’ wouldn’t be satisfied If there is an over 50% chance that the def’s breach didn’t caused the harm (i.e. on the balance of probabilities it did not cause the harm) but then ‘but-for’ test is not satisfied Wilsher v Essex AHA (1988) AC 1074 (HL) o Consider what we mean by ‘but-for’ the def – can’t say for 100% certainty that the loss would have occurred – it’s a hypothetical situation, it’s the court deciding what would have happened, by using the balance of probabilities o Wilsher – premature baby Cared in the special baby care unit in the hospital Hospital responsible for monitoring the blood was found negligence This resulted that the baby having too many oxygen in many occasions and this could be problematic to the baby He developed a condition (LRF – a condition on the retina) due to excess oxygen in the blood Court – need to set out a prima facie case – set out the argument It’s arguable that the doctor caused this and that

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