Held mason acknowledges can be inadequate t he but

Info icon This preview shows pages 27–29. Sign up to view the full content.

View Full Document Right Arrow Icon
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!
Image of page 27

Info icon This preview has intentionally blurred sections. Sign up to view the full version.

View Full Document Right Arrow Icon
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
Image of page 28
Image of page 29
This is the end of the preview. Sign up to access the rest of the document.

{[ snackBarMessage ]}

0/0 PREVIEWS LEFT
Sign up to access 24/7 study resources for your classes

What students are saying

  • Left Quote Icon

    As a current student on this bumpy collegiate pathway, I stumbled upon Course Hero, where I can find study resources for nearly all my courses, get online help from tutors 24/7, and even share my old projects, papers, and lecture notes with other students.

    Student Picture

    Kiran Temple University Fox School of Business ‘17, Course Hero Intern

  • Left Quote Icon

    I cannot even describe how much Course Hero helped me this summer. It’s truly become something I can always rely on and help me. In the end, I was not only able to survive summer classes, but I was able to thrive thanks to Course Hero.

    Student Picture

    Dana University of Pennsylvania ‘17, Course Hero Intern

  • Left Quote Icon

    The ability to access any university’s resources through Course Hero proved invaluable in my case. I was behind on Tulane coursework and actually used UCLA’s materials to help me move forward and get everything together on time.

    Student Picture

    Jill Tulane University ‘16, Course Hero Intern