Tort Law notes fully updated for recent exams at Oxford and Cambridge. These notes cover all the LLB tort law cases and so are perfect for anyone doing an LLB in the UK or a great supplement for those doing LLBs abroad, whether that be in Ireland, Hong Kong or Malaysia (University of London).
These were the best Tort Law notes the director of Oxbridge Notes (an Oxford law graduate) could find after combing through dozens of LLB samples from outstanding law students with the highest results in ...
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How is causation determined?
Factual Causation
Giliker: Factual causation is difficult subject with numerous approaches
Law will either confine itself to one approach
Or do a number
Stapleton: confusion comes because Judges themselves aren’t entirely sure of what they’re doing
and use different words to describe the same thing
or the same word to describe different things...
The pragmatic approach
Giliker: Relationship between cause and effect = complex
Philosophically speaking, effect could come from a number of causes
E.g. if I hadn’t been born, I wouldn’t have driven over X while not looking through the windscreen
Therefore, my parents/distant ancestors are to blame.
Therefore, law does not take philosophical approach
Causation = causation in the terms of man on the street
Problem = this approach doesn’t always work so we need other approaches
But for approach
Law’s starting test = “but for” test
Can it be said that ‘but for’ the defendant’s negligence the claimants loss would not have occurred?
If “yes” = caused
OR Would the claimant’s loss have occurred in any event, even without D’s intervention?
If “Yes” = not caused
Barnett v Chelsea and Kesington Hospital [1969]:
Man drinks poisoned tea, arrives at hospital, sent away, dies.
Held that breach of duty
BUT “but for” D’s actions, C would have died anyway
Therefore D’s negligence had not caused C’s death.
Bolithio v CHHA [1998]:
Lord Wilberforce: If D is in breach of duty, can’t argue Result X would have happened anyway
if this would be down to another breach of the duty of care.
Problem with but for approach
Giliker: where multiple causes, you run into problems
Fisher: e.g. two fires converge on house destroying it
Fire A can say loss would have occurred anyway cos of Fire B
Fire B can use same argument =
No way for C to claim against anyone
Can lead to an unjust result
NESS Test (Necessary Element of Sufficient Subset)
Contributory Cause
Stapleton: Suppose X is expelled by unanimous vote of 9 people, where 6 necessary for expulsion
Can’t say Committee Member 1 is “cause” because his vote on its own was not necessary to bring about X’s expulsion
Could then say that about every cause
So instead, apply NESS
In hypothetical world, votes 7, 8 and 9 don’t exist
Thus Committee Member 1’s vote is necessary to bring about sufficient result (majority of 6)
Thus Committee Member 1’s vote = cause b/c necessary contribution to the sufficient subset.
Duplicate Cause
Stapleton:
Hunter A and Hunter B both shoot negligently, C is hit by both bullets and dies but shown that only one bullet necessary for death. But for test means both A and B are not liable.
BUT Apply NESS
Ask “In situation where all factors are present except duplicate action of B, would A’s contribution be necessary and sufficient to bring about result?”
Answer = yes
Thus A = cause of death
Then apply same reasoning to B = B also cause of death
Meaning they are jointly liable.
Special Proof Rules
Concurrent Causes
Causes in question occur more or less simultaneously
Indeterminate Cause
More than one D
But only one operating cause of C’s loss
Unclear which of the D’s acts produced the cause
Cocklin v Lewis [1951] CAN
Hunting accidents where C injured by one bullet
But two D’s negligently firing at his direction and no way to tell whose bullet was the cause of D’s injury.
Held approach = make joint tortfeasors and hold both jointly liable.
English courts apply this in Fairchild
Giliker: BUT courts in England more conservative. If natural cause potentially behind injury, X has to prove D should be liable instead – per Wilsher.
Cumulative...
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Tort Law notes fully updated for recent exams at Oxford and Cambridge. These notes cover all the LLB tort law cases and so are perfect for anyone doing an LLB in the UK or a great supplement for those doing LLBs abroad, whether that be in Ireland, Hong Kong or Malaysia (University of London).
These were the best Tort Law notes the director of Oxbridge Notes (an Oxford law graduate) could find after combing through dozens of LLB samples from outstanding law students with the highest results in ...
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