Torts_Notes1

# Therefore ask on balance of probabilities after the

• Notes
• 78

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Therefore ask: on balance of probabilities, after the defendant’s negligence and before subsequent event , is it more likely than not that subsequent event would occur? If yes, defendant caused it. Eg: The Oropesa : Chain of causation not broken: Shipping case: 2 ships collided at sea because the captain of the Oropesa. The captain of the other ship wanted to take his crew over to the Oropesa because his ship was sinking wanted to discuss what to do, ordered his crew into the lifeboats. Unfortunately as they were going across, the lifeboat capsized, causing the p’s son to drown. P’s ship, d’s neg causes boat to start sinking. Crew getting into life boat (captains order). Not neg what captain did but did it break chain of causation? Break the chain between d’s neg and p’s death? Court held : no, not a break in the chain of causation. It is not a Novus. Reason we study this case is because of the reasoning, what the judge said: ‘To break the chain of causation, the subsequent event (the later event) must be ultraneous unwarrantable or extrinsic. Chapman v Hearse: Chapman negligent when driving his car, crashed it and ended up flipping the car, causing him to be thrown to the middle of the rd. dr Cherry was driving his car, saw c and went to the middle of the rd to help and while he was out there, hearse came out around the corner and killed dr Cherry. 2 bits of neg (chapel and hearse). Issue: Is Hearse’s negligence a Novus where Cherry is suing Chapman? When Dr Cherry’s estate sues Chapman, he will say I didn’t hit you that was a Novus, what hearse did was a Novus. Chapman is injured because of his own neg and Dr Cherry ends up killed. Chain of events? Could argue Dr Cherry getting out and assisting was a Novus, doesn’t work (rescuer). Chapman arguing hearse is a Novus (meaning Chapman won’t be liable for anything because Dr Cherry was fine until hearse hit him). Court held: it was not a Novus. What hearses did is not a Novus. Hearse’s neg was not the sole cause of the death, Chapman’s neg was also a cause. More importantly, you do not consider reasonable foreseeability until it appears the first D’s neg act is a cause. (RF is only relevant to remoteness, not to causation). Question of circumstance and degree. Was the later event on bop caused by d’s neg? if later event was caused by d1’s neg then later event is just a link in the chain, not a Novus. ‘But for’ test- But for the first event would the second event have occurred? In doing this always assuming the first event occurred. M Davies and I Malkin chap 5 Torts Butterworths Tutorial Series 4 th Ed – expresses this as – is there anything significant about the later event that is not conditioned or shaped by the situation created by the 1 st event?

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• Fall '09

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