Q&As

If A has negligently breached its duty of care to B for 20 years and then C, subsequently breaches that same duty of care (in place of A) for four months, during which subsequent period B suffers loss, is there any available defence to C in respect of the damage to B?

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Published on LexisPSL on 02/05/2019

The following Dispute Resolution Q&A provides comprehensive and up to date legal information covering:

  • If A has negligently breached its duty of care to B for 20 years and then C, subsequently breaches that same duty of care (in place of A) for four months, during which subsequent period B suffers loss, is there any available defence to C in respect of the damage to B?
  • Causation
  • Material contribution
  • Joint and several tortfeasors

If A has negligently breached its duty of care to B for 20 years and then C, subsequently breaches that same duty of care (in place of A) for four months, during which subsequent period B suffers loss, is there any available defence to C in respect of the damage to B?

Causation

In most torts, where a defendant breaches its duty towards the claimant, they are only liable if the claimant can establish that the breach in question has resulted in some harm. Establishing factual causation requires the claimant to produce evidence that it is more likely than not that the defendant’s breach resulted in the damage complained of, also known as the ‘but for’ test. The starting point for a claimant in most cases is to prove in the affirmative that the claimant would have been unlikely to suffer loss ‘but for’ the defendant’s breach of duty.

Ultimately, the claimant must prove two basic tenets on the balance of probabilities:

  1. that the breach can cause the type of harm in question (factual causation)

  2. that the claimant’s particular damage was caused in this way (legal causation)

Where a claimant establishes that they have, in fact, suffered loss as a result of the defendant’s breach of duty, the court then must evaluate:

  1. whether the tort is the effective cause of the eventual loss or whether there have been

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