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J - Comparative Tort Law > Causation > Flashcards

Flashcards in Causation Deck (27)
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1
Q

What is causation?

A

Connection between misconduct and damage.

2
Q

Does an intentional act by a victim necessarily break the chain of causation?

A

No.

3
Q

What is the difference between establishing causation and limiting causation?

A

Establishing causation is factual causation, and is determined using the “but for” test. Limiting causation is legal causation and talks about remoteness (foreseeability, probability, scope of the rule, and directness).

4
Q

What are the problems with the “but for” test and determining factual causation?

A
  • May be more than one cause.
  • Provides only for all-or-nothing.
  • Considers all consequences equally.
5
Q

What is the requirement for causation in France?

A

That it be certain and direct.

6
Q

Is the scope of the rule theory applied in France?

A

No.

7
Q

What theory is applied to causation in France?

A

Adequacy theory – must be foreseeable.

8
Q

What is the doctrine of efficient causation?

A

Look for most proximate cause.

9
Q

What country uses the doctrine of efficient causation as a limiting mechanism?

A

France.

10
Q

What are the two steps in causation in Germany?

A
  1. Establishing liability.

2. Determining the extent of the liability.

11
Q

What theories does Germany use with regard to causation?

A

Adequacy theory, scope of the rule theory, and policy considerations.

12
Q

How is causation considered in England?

A

The “but for” test on a “balance of probabilities.”

13
Q

What was the test for causation in England under Re Polemis?

A

Foreseeabiltiy of any damage.

14
Q

How was Re Polemis tightened in Wagon Mound I?

A

Scope of foreseeability relevant – remoteness.

15
Q

What case seemingly contradicts the scope of foreseeability set out in Wagon Mound I?

A

Hughes v Lord Advocate (manhole case).

16
Q

How does France shift the burden of proving causation?

A
  • Proof by exclusion – no other possibility.
  • Policy presumption – criminal fault means civil fault.
  • Loi Badinter – absolute liability if vehicle is involved.
17
Q

How does Germany adjust the burden of proving causation?

A
  • If there is prima facie case, causation is assumed.
  • Reversal Rule if defendant acted negligently, there is violation of statutory duty, there is the breach of a safety duty, or a product liability claim.
18
Q

How does England accommodate plaintiffs with regard to proving causation?

A
  • If there is a prima facie case.
  • Material contribution to damage.
  • Material contribution to risk.
  • Doctor’s duty to inform – if patient would have undergone procedure anyway.
19
Q

How does France deal with multiple causes?

A

Each party is fully liable, right of recourse against each other.

20
Q

How does Germany deal with multiple causes?

A
  1. If jointly committed, joint and several liability.

2. If independently committed, several liability.

21
Q

How does England deal with multiple causes?

A
  1. If jointly committed, joint and several liability.
  2. If independently committed, several liability.

With material contribution to risk, only proportionately liable.

22
Q

How do all three systems deal with successive causes?

A

If a second event causes the same damage as the first event, the first tortfeasor is still liable.

23
Q

How do the three systems differ when dealing with successive causes?

A

When there is no one at fault for the second damage – in these cases, in France, the first tortfeasor is still liable; however, in Germany and England, the first tortfeasor is off the hook.

24
Q

Does France allow loss of chance?

A

Yes.

25
Q

Does Germany allow loss of chance?

A

No, but compensate with lower burden of proof, reversal rule, and gross negligence.

26
Q

Does England allow loss of chance?

A

Yes in contractual and financial-loss situations, but not in medical-malpractice situations.

27
Q

What case talks about taking victims as they are and what is the doctrine called?

A

Smith v Leech Brain, thin-skull doctrine.