Held mason acknowledges can be inadequate t he but

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Held: Mason: (acknowledges can be inadequate. T he ‘but for’ test should not be the exclusive test of causation Generally speaking, the causal connection is established if it appears that the plaintiff would not have sustained hir or her injuries had the defendant not been negligence Use common sense The courts ask two questions: the question of causation in fact (to be determined by the application of the ‘but for’ test) and the further question whether a defendant is in law responsible for the damage his or her negligence had played. As a matter of both logic and common sense, it makes no sense to regard the negligence of the plaintiff or a third party as superseding cause or novus actus intervieniens when d’s wrongful conduct had generated the very risk of injury resulting from the negligence of the plaintiff pr a third party and that injury occurs in the ordinairy sense of things. In such a situation, D satisfies but for test and thus liable. Deane The relatiobshop and that duty of care were not confined to persons who were careful and sober but extended to all foreseeable users, including bad and unattentative drivers The question whether conduct is a ‘cause’ f injury remains to be determined by a value judgment involving ordinairy notions of language and common sense. In a case where, as a matter of ordinairy common sense, the ‘sole’ case of the plaintiff’s injury was his or her own negligence, that element of the tort will be lacking. McHugh Causation is based on common sense; when P’s action or negligence as well as D’s is part of the cause; then cannot use common sense Dismissed the whole ‘common sense’ ‘novus actus’ arguments favouring instead the ‘scope of the risk’ test. Consider here third party action? Satisfies common sense test unless a completely different independent factor!
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Chappel v Hart Facts: Surgeon case in which had the surgeon told her the risk she would have gone to a better surgeon Held: High Court divided 2-3. SECTION 51 (2) WRONGS ACT When a particular breach does not satisfy the necessary condition (the ‘but for’ test) the court can still find that the breach was the factual cause of the harm if policy dictates that it should. Where the court cannot ascertain which act was the actual cause, they can implement s 51(2). Fairchild v Glenhaven Funeral Homes: Fairchild involved 3 cases being heard together. All 3 cases involve someone who had developed an asbestos related disease and all developed disease after being exposed to asbestos in their workplace. Evidence suggested that workplace exposure was only time being exposed to asbestos. Only place they could have been exposed. Problem was exposed by more than one employer. Impossible to tell which Workplace they had developed disease; therefore ‘but for’ test was not able to be established here. On the facts of this cause; increased risk enough. At pains however to emphasise that they were not laying down a rule; increased risk WILL not always establish causation. All they were
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