Unit 2 - Causation and Defences

'But for' test (definition)

Would the harm have occurred but for the defendant's breach?

Burden of proof in causation

Claimant must prove causation on the balance of probabilities.

Material contribution test (definition)

C must show D's breach materially contributed to harm - need not be sole/main cause - not applicable where multiple distinct causes exist

Divisible injury

Injury that can be apportioned between causes - Damages apportioned based on contribution to harm.

Indivisible injury

Single injury that cannot be divided between causes - Claimant can recover full damages from any one defendant.

Successive injuries rule

Later defendant only liable for additional damage caused.

Summary of factual causation

But for' test applies; material contribution in limited cases; divisible vs indivisible injuries affect damages.

Novus actus interveniens (definition)

A new intervening act breaking the chain of causation.

Third party acts (general rule)

Break chain if unforeseeable and independent.

Instinctive acts from third party

Instinctive acts do not break chain.

Unforeseeable acts from third party

Unforeseeable third-party negligence breaks chain.

Foreseeable acts from third party

Foreseeable acts did not break chain.

Intentional/reckless acts from third party

Intentional/reckless acts more likely to break chain.

Claimant's acts and causation

Break chain if unreasonable.

Remoteness of damage

Damage too far removed is not recoverable - wagon mound test - must be reasonably foreseeable

Similar in type rule

Type of damage must be foreseeable, not exact manner.

Egg-shell skull rule

Take claimant as you find them - D liable for full extent of harm even if unusual.

Volenti non fit injuria

Voluntary assumption of risk is a complete defence.

Requirements for volenti

Full knowledge of risk + voluntary acceptance.

'sciens is not volens' - volenti

Knowledge alone is not consent.

Volenti and employees

Rarely applies due to lack of true consent.

Volenti and rescuers

Not voluntary if acting under moral/legal duty.

Illegality defence

No claim arises from illegal conduct.

Limits of illegality defence

Must be serious illegality and directly linked to harm.

Ex turpi causa maxim

"No action arises from a disgraceful cause."

Contributory negligence

Claimant's own carelessness contributed to harm e.g. no seatbelt, no helmet, intoxication

Law Reform (Contributory Negligence) Act 1945

Damages reduced, not eliminated.

Test for contributory negligence

Did claimant fail to take reasonable care for their own safety?

Children and contributory negligence

Measured against reasonable child of same age.

Rescuers and contributory negligence

Judged as reasonable rescuer - allowances for emergency

Dilemma cases

No negligence if acting in "agony of the moment".

Employees and contributory negligence

Depends on nature of work and conditions.