{[ promptMessage ]}

Bookmark it

{[ promptMessage ]}

Negligence_Elements

Eg asbestos exposure on multiple occasions only on e

Info iconThis preview shows pages 22–25. Sign up to view the full content.

View Full Document Right Arrow Icon
EG: Asbestos exposure on multiple occasions only on e of which is due to the D. It is unknown which exposure caused the disease only that the risk was increased. McGhee v National Coal Board [1972] 3 All ER 1008 (CB 311) Facts: P contracts dermatitis due to being exposed to brick dust in the course of employment. - Clear that a D.o.C exists. - Breach consisted of not providing showers for employees to use after work. - It needs to be shown that the dermatitis was caused due to the dust on the P during the drive home. - Risk was shown to have increased. - HOL held that increased risk was enough to make out causation. Chappel v Hart (1998) 72 ALJR 1344 especially Kirby J 1367-8 22
Background image of page 22

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

View Full Document Right Arrow Icon
Facts: D is a specialist ENT. Failed to warn P that operation could harm her voice. Voice was impaired. - D argued that it was necessary operation and it would make no difference to the P. - P said if info was provided, P would seek out best possible surgeon. - Majority held that causation was made out. In medical negligence cases, if P shows that D breached the duty of care, this increased the risk that P would suffer an injury, and P did in fact suffer that injury, then a prima facie case of causation is established. It is then up to D to disprove causation. Gaudron & Kirby JJ: increased risk suffices to establish causation in this case, support for McGee Gummow J: the “but for” test is satisfied Majority: No approval or disapproval for the increased risk argument in general. Fairchild v Glenhaven Funeral Services Ltd [2003] 1 AC 32 23
Background image of page 23
NOVUS ACTUS INTERVENIENS – A new act intervening. Wrongs Act , s 51 (1) A determination that negligence caused particular harm comprises the following elements: D’s negligence was a necessary condition of the occurrence of the harm; and it is appropriate for the scope of D’s liability to extend to that harm Wrongs Act , s 51 (4) For the purpose of determining the scope of liability, the court is to consider (among other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party When will an intervening act break the chain of causation? The Oropesa , per Lord Wright: when the intervening act is unwarrantable … disturbs the sequence of events… can be described as unreasonable or extraneous March v Stramare , per Mason CJ: when there are reasons in common sense, logic or policy for refusing to regard the defendant’s negligence as a cause of the plaintiff’s loss Two approaches to intervening acts The foreseeability approach The approach in Haber v Walker Haber v Walker , per Smith J An intervening act will break the chain of causation if it is either: a voluntary human action; or a causally independent event, the conjunction of which with the defendant’s negligent act is so unlikely as to be termed a coincidence When is a human act regarded as voluntary? When the actor has exercised a free choice; and
Background image of page 24

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

View Full Document Right Arrow Icon
Image of page 25
This is the end of the preview. Sign up to access the rest of the document.

{[ snackBarMessage ]}

Page22 / 48

EG Asbestos exposure on multiple occasions only on e of...

This preview shows document pages 22 - 25. Sign up to view the full document.

View Full Document Right Arrow Icon bookmark
Ask a homework question - tutors are online