845253
Descrição
Mapa Mental por Falaq Lall, atualizado more than 1 year ago
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Criado por Falaq Lall
mais de 10 anos atrás
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CAUSATION FLOWCHART
- Is the traditional test of causation satisfied per
Barnett v Chelsea and Kensington? that is , can
the claimant prove, my damage would not have
occurred on the balance of probabilities, but for
the defendant's negligence
- YES- The claimant's damage
would not have occurred, on the
balance of probabilities , if the
defendant had not been negligent .
In other words, the defendant's
negligence probably caused the
claimant's damage (there is a 50%
chance that the defendant's
negligence caused the damage
- Check for any outstanding causal issues:
a) is the causal link to be determined
subjectively (claimant's own evidence or
objectively). b) does fairness/policy
indicate that a causal link should not be
upheld? c) is a weaker causal link justified
because the breach was an omission
rather than a positive act?
- Check for any outstanding causal issues:
a) is the causal link to be determined
subjectively (claimant's own evidence or
objectively). b) does fairness/policy
indicate that a causal link should not be
upheld? c) is a weaker causal link justified
because the breach was an omission
rather than a positive act?
- NO- The claimant;s damage probably would have happened regardless.
That damage was on the balance of probabilities, caused by some event
other than the defendant's negligence that is a) by another tortfeasor's
negligence b) by an innocent agent c) claimant's own negligence d) by a
docto's omission, fixing omission would not have prevented damage
- In the case of d) above, apply the two
part causal test in BOLITHO and
hypothesise that the doctor had
corrected the omission: a ) would the
doctor then have done a further act X
would have prevented the damage.? b)
if the doctor had not done X would it
have been negligent for him not to have
done so? if either answer is yes
omission caused damage and causation
succeeds.
- In the case of d) above, apply the two
part causal test in BOLITHO and
hypothesise that the doctor had
corrected the omission: a ) would the
doctor then have done a further act X
would have prevented the damage.? b)
if the doctor had not done X would it
have been negligent for him not to have
done so? if either answer is yes
omission caused damage and causation
succeeds.
- DON'T KNOW. Defendant's negligence was present
in the factual matrix; but it is impossible to say with
evidential certainty whether the defendant's acts or
omission caused the claimant's damage, over and
above the 50% threshold of probability
- Has the claimant's damage been caused by one 'agent' which has the
capacity to contribute negligently and non-negligently to that damage? Or
have different 'agents' possibly caused the claimant's damage (one of
which was a negligent agent), but none of which can be proven to be the
probable cause of the claimant's damage?
- One agent: Causation will
succeed per
McGhee/Fairchild
- If Several agents, then causation will
generally fail : Wilsher v Essex, Gregg
v Scott
- One agent: Causation will
succeed per
McGhee/Fairchild
- Has the claimant's damage been caused by one 'agent' which has the
capacity to contribute negligently and non-negligently to that damage? Or
have different 'agents' possibly caused the claimant's damage (one of
which was a negligent agent), but none of which can be proven to be the
probable cause of the claimant's damage?
- YES- The claimant's damage
would not have occurred, on the
balance of probabilities , if the
defendant had not been negligent .
In other words, the defendant's
negligence probably caused the
claimant's damage (there is a 50%
chance that the defendant's
negligence caused the damage
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