2 in determining in an appropriate case in accordance

Info icon This preview shows pages 24–26. Sign up to view the full content.

View Full Document Right Arrow Icon
(2) In determining in an appropriate case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be taken to establish factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party. (3) If it is relevant to the determination of factual causation to determine what the person who suffered harm (the injured person) would have done if the negligent person had not been negligent, the matter is to be determined subjectively in the light of all relevant circumstances. (4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.
Image of page 24

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

View Full Document Right Arrow Icon
D’s wrongful act must have caused or contributed to the harm for which P seeks damages S 51 (a)FACTUAL LIABILITY * Must show the negligence was a necessary condition of the harm on the facts (i) THE ‘BUT FOR’ TEST Bennet v Ministry of Community Welfare : (Mason Deane and Toohey) Causation is a question of fact to be resolved as a matter of common sense. In resolving that question, the ‘but for’ test, applied as a negative criterion of causation, has an important role to play but it is not a comprehensive and exclusive test of causation; value judgments and policy considerations necessarily intrude. The court in applying the test determines what would not have happened had the D had not been negligent. Did D make a difference? The court then considers whether it is more probable than not that in such a hypothetical set of circumstances P would not have been injured. If the ‘but for’ test is satisfied when applied to the D’s negligene conduct, but there is some subsequent event tat would also satisfy the ‘but for’ test and as a matter of common sense is also a candidate for the consideration as the cause of P’s harm, the court will then look at NOVUS ACTUS INTERVENIENS. For the ‘but for’ test to be applied, the act must be WRONGFUL. (Chemist example; chemist labels drug poisonous. Gives to mother who leaves it lying around and child eats it. The chemist is not liable, however were it but for the chemist, the child would not have poisoned!) Example: Barnett v Chelsea and Kensington Health ARSENIC POISONING Facts: Man drank tea that had been old-laced with arsenic; at hospital duty doctor was absent. Died five hours later. Evidence given that even if he had been diagnosed, he could not have been treated until 5 hours after he first attended the hospital and that even if this occurred, chances would not have been good.
Image of page 25
Image of page 26
This is the end of the preview. Sign up to access the rest of the document.

{[ snackBarMessage ]}

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