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Since chappel v hart hol england has considered this

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Since Chappel v Hart, HOL England has considered this case: Fairchild v Glenhaven Funeral Services On the facts of this cause; increased risk enough. At pains however to emphasise that they were not laying down a rule;
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increased risk WILL not always establish causation. All they were saying on these particular facts they are making an exception. Agreed for eg increased risk not enough in Wilshires case: (Involving a premature baby who was exposed to excessive oxygen due to doctors negligence. Baby became blind. One possible cause of blindness was D’s exposure to oxygen. There are other causes of the blindness as well, one of which the P was born immature leading to blindness. Could not say D’s breach of duty clearly caused the P’s blindness in this case; most you can say was increased risk. Fairchild said while increased risk ok in Fairchild, in this case increased risk is not enough. Caught in Fairchild disagreed how to interpret McGee. Fairchild left English courts with big problem effectively saying increased risk sometimes enough to establish causation. (Enough in McGee, not Fairchild.) How then do you work out (in English courts) when it is enough? Answer given in Fairchild unsatisfactory; reason increased risk not enough in Wilshire is there is more than one cause of harm not all of which resulted from D’s negligence. (The difference between distinguishing this from Wilshire from say, McGee.) Re arose again in Barker v Corus (UK) PLC, HOL from last year. Sought to provide a better way in determining when increased risk will determine causation and when it will not. In Barker increased risk is sufficient to show causation only when various causes of harm all operate in the same way, or cause the same type of condition. That requirement satisfied in both Fairchild and McGee. (Wilshire diff: various possible causes of harm were DISSAMILAR. One possible cause was too much oxygen, which is a dissimilar kind of risks to the other possible causes; for eg. Premature birth.) Does not matter if one of the causes of harm was the P own contributory negligence. However in cases where principle does apply and higher risk is sufficient for causation; will only be responsible for proportion of risk; that proportion being the higher risk they may be responsible for.
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(b) Scope of liability requirement s 51 (4): Court considers whether or not or responsibility should be imposed on negligent party o However no test o But shows it is normative( using value judgments) o Filled by CL o Remember ‘but for’. Being born satisfies that test. (But for being born she would have not been injured.) This second part tries to separate that which is relevant. WRONGS ACT PROVISIONS S 51(1)(b) In order for there to be causation it must be appropriate for the scope of the person’s liability to extend to the harm so caused. So if an intervening act breacks the chain, it will not be appropriate to extend to cover the harm caused because of the NAI.
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