Tort Law - Causation

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Within tort law there are two types of causation: factual causation and legal causation (also known as remoteness). This lecture focuses on factual causation.
Factual causation can best be summarised by the but for test that asks the following question:Would the damage have occurred ‘but for’ the action/omission of the defendant? This test originates from the case of Barnett v Chelsea & Kensington Hospital [1969] and like other elements of tort law is measured on the balance of probabilities. This normally involves an interrogation of the facts of individual cases.
There are some circumstances that require a closer look at the 'but for' test such as where there are multiple causes. Here some may be innocent and some may be tortious as in the case of McGhee v National Coal Board [1973]. In that case Lord Wilberforce stated that “it is a sound principle that where a person has, by breach of a duty of care, created a risk, and injury occurs within the area of that risk, the loss should be borne by him unless he shows that it had some other cause” essentially reversing the burden of proof. This was heavily criticised in Wilsher v Essex AHA [1988] by Lord Bridge but there still may be some circumstances where it is fair to reverse the burden of proof onto the defendant.
The same thing applies to where there are multiple defendants and a strict application of the but for test would mean neither defendant would be liable: Fitzgerald v Lane [1987]. This sits alongside the general principle of liability in solidum whereby all defendants may be liable for the damage as a whole.
Mesothelioma cases have also posed problems for the courts in the past. The main case of Fairchild v Glenhaven Funeral Services [2003] allowed claimants to be successful despite the problematic questions of causation that arose. This was taken further in Barker v Corus UK Ltd [2006] where it was decided that exposure to the risk could be considered damage in its own right. Such cases were eventually legislated on via section 3 of the Compensation Act 2006 that restored the principle of in solidum liability.
Supervening or overtaking causes can also pose a problem as the law of causation can either act in an unfair way against a defendant (as in Baker v Willoughby [1970]) or mean that a claimant does not receive sufficient compensation. This was addressed in Jobling v Associated Dairies [1982] where the damages were reduced because of the supervening cause.
This leads on to questions of loss of chance.which originally comes from the United States of America case Hicks v U.S. [1966] where it was held that “if there was any substantial possibility of survival and the defendant has destroyed it, he is answerable.” this often applies in cases of medical negligence but it must be remembered that under the balance of probabilities the chances of survival must be greater than 50% in the first instance.

Пікірлер: 31

@sisifagigilui3571 5 жыл бұрын

This guy is helping us make it through torts

@chrisdvine 6 жыл бұрын

I loved when you called pushing a person while someone is ducked behind them "the classic prank". Too funny.

@Ta-ps6wj 6 жыл бұрын

mate you are a legend

@marksewe114 6 жыл бұрын

Fantastic! Keep up the good work, mate.

@sshad4386 7 жыл бұрын

Hi Marcus, your Tort videos have been so much help! Recently I have been struggling with Tort but these videos help out a lot! Thank you so much! Also, how would you answer a problem question on causation and duty of care etc? Keep up the good work!!

@marcuscleaver 7 жыл бұрын

+S Shad Hmm good question. Focus on establishing the duty of care between the claimant and defendant first of all and then ask yourself would the accident have happened 'but for' the actions of the defendant. Don't forget remoteness too!

@m.m6822 4 жыл бұрын

this is so useful.. I have my tort law module for uni in January and preparing for it with your videos are helping my understand so many things. Do you have any further reading/article suggestions for Tort Law generally?? Thank you!! :)

@haezati8210 6 жыл бұрын

Is there an authority for “on the balance of probabilities?” How did that come about?

@liesjewright7305 3 жыл бұрын

Is the description for the Greg v Scott case correct? I believed that the case involved someone who had a delayed diagnosis of cancer and no operation was involved. Can you please clarify?

@aysunozcan2516 3 жыл бұрын

Hello Marcus, thanks for your informative videos. I’m a mature OU student second year law, have finished contract (just about) and now tort. I’m struggling really struggling.. Any other videos you could recommend?

@nipabegum1241 6 жыл бұрын

hi m I m very happy and satisfied with all your video. it's all are helpful great helpful

@marcuscleaver 6 жыл бұрын

Thank you so much!! :)

@AmeerHaiderKhan 7 жыл бұрын

Thanks for this helpful video. P.s Is this video enough to cover the whole of Causation for Tort examination?

@marcuscleaver 7 жыл бұрын

Take a look at remoteness too (that's technically called legal causation)

@gurulc 6 жыл бұрын

contracted dermatitis or lung disease for McGhee?

@affablejay96 Жыл бұрын

Can you do a video on breach of duty please?

@yaboywaqas3484 6 жыл бұрын

Hey Marcus. I have a question, ‘A mechanical application of the strict rules of causation (the ‘but for’ test) would produce unjust results.’ Discuss. How would I answer this question, I have watched your videos on causation, looked at my textbook, but don't seem to be able to answer this question. Could you help me out?

@marcuscleaver 6 жыл бұрын

I got you bro. Will reply to your email in a bit.

@yaboywaqas3484 6 жыл бұрын

marcuscleaver Thanks bro.

@andyroberts6810 4 жыл бұрын

@@marcuscleaver can you email me this too?