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Causation comprises the policy definitions on what in law constitutes a factual connection between an act and a consequence that in some way follows from that act.
For policy reasons, the law requires the prosecution prove a sufficient causal connection between the act or omission complained of and the injury suffered. In this way the law limits liability to consequences which are attributable to the wrongful act or breach, although causation is not dependent on remoteness or immediacy in time. The major test is whether 'but for' the defendant's action, would the victim have been injured in the way that they were. The second aspect to this is whether there was a new intervening act (novus actus interveniens) that came between a wrongful act and its consequences, such that the wrongful act did not truly cause the situation. However, even unusual biological weaknesses in a victim (such as an egg shell skull) do not break the chain of causation, and the Law Reform (Year and a Day Rule) Act 1996 abolished the old rule that the victim
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Drafting and negotiating a force majeure clause—checklist For Precedent force majeure clauses together with detailed drafting notes, see Precedents: • Force majeure clause • Force majeure and business continuity clause • Force majeure event definition For information on force majeure generally, see Practice Notes: • Force majeure—consequences and contract discharge • Force majeure clause analysis—a practical guide • Force majeure—key and illustrative decisions For information on the related concept of frustration, see Practice Note: Discharge by frustration. For further considerations around alternatives to force majeure, see Practice Note: Drafting for unforeseen events—commercial contracts. For information on dealing with commercial contracts in difficult times, see: Commercial contracts in difficult times—resources—checklist. Legal Issues General comments What to watch out for General considerations Force majeure clauses relieve a party from its contractual obligations on the occurrence of a disruptive event outside that party's reasonable control. Force majeure is only recognised in English law if it is specifically provided for in the terms of a contract, although the doctrine...
What to think about before bringing a private competition action—checklist Is there an actionable claim? Note: private competition actions remain largely regulated by national law and procedural and substantive rules across the EU may vary significantly, therefore assessments in individual jurisdictions will need to be made when planning competition litigation. Possible causes of action • Consider if there is an infringement of UK competition law (or EU competition law prior to the end of the Brexit transition period). ◦ Consider whether the loss suffered can be attributed to an agreement or concerted action between undertakings, especially competing undertakings (see further, The prohibition on restrictive agreements). ◦ Consider whether the loss might have been caused by an entity that is arguably dominant typically with a large share of a relevant market, and could be said to have abused its dominance contrary to Chapter II of the Competition Act 1998 (and/or Article 102 TFEU if prior to the end of the Brexit transition period) (see further, The prohibition on abuse of dominance)....
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Criminal offences are generally divided into two categories: •conduct crimes, and •result crimesA conduct crime is a crime where only the forbidden conduct needs to be proved. For example, an accused is guilty of dangerous driving if they drove a motor vehicle dangerously on a road or other public place. There is no requirement to prove harmful consequences such as injury to another.A result crime is a crime which causes or results in specified consequences. For example, murder requires proof that someone is killed. For any result crime the prosecution must establish:•a factual link between the conduct of the accused and the result they are alleged to have caused (factual causation), and•a sufficient cause in law between the conduct of the accused and the prohibited consequences (legal causation)Factual causation is also known as ‘but for’ causation because it must be established that the result would not have occurred but for the actions of the accused. If factual causation cannot be established the prosecution will fail. For example, in R v...
PI & Clinical Negligence horizon scanner—December 2021 [Archived] ARCHIVED: This Practice Note has been archived and is not maintained. This Practice Note is a summary of the key legal developments of relevance to personal injury and clinical negligence practitioners as of 2 December 2021. For the most recent horizon scanner, reference should be made to PI and Clinical Negligence horizon scanning—overview. Coronavirus (COVID-19) To stay ahead of the fast-moving changes in the courts’ processes and procedures necessitated by the pandemic and for industry guidance on how to manage cases during the pandemic including medical examinations, service and limitation, see Practice Note: Coronavirus (COVID-19) implications for PI and clinical negligence [Archived]. Pre-action CJC publishes interim report and launches consultation on pre-action protocols The Civil Justice Council (CJC) interim report on the subject of pre-action protocols (PAPs) was published on 15 November 2021. See: LNB News 16/11/2021 7. PI Subcommittee consider PI PAPs in interim report The CJC has published its Interim Report on the subject of PAPs and opened...
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Defence of a highway authority against a claim for flooding [ In the High Court of Justice OR In the County Court at [insert] ] [ [Specify division] ] [ [Specify Specialist court] ] [ [Insert location] District Registry ] Claim No: [insert claim number] Between [A B]        Claimants and [X Y]        Defendants Defence 1 Paragraph 1 of the Particulars of Claim is admitted. 2 The Defendants are unable to admit or to deny and therefore require the Claimant to prove the facts and matters alleged in paragraph 2 of the Particulars of Claim. 3 Negligence, breach of statutory duty and causation as alleged in paragraph 3 of the Particulars of Claim, or at all, are each denied. 4 It is denied that the Defendants were guilty of nuisance as alleged under paragraph 4 of the Particulars of Claim or at all. 5 If, which is not admitted, the Claimant’s car skidded in a flood which had formed on the road, the Defendants will contend that at all...
Letter of instruction to single joint expert—employment tribunal proceedings Private & confidential [Insert name and address of expert] [Insert date] Dear [insert name of expert] [Insert case heading, eg Ms R Jones v Supermarkets Plc, ET Case Number: 12345] Instruction to act as single joint expert Thank you for agreeing to act as the expert witness in this matter. As you know you will be acting as a single joint expert. We act for [insert name of client] who is [bringing OR defending OR an employment tribunal claim against [insert name of opposing party/parties]. This letter has been countersigned by the solicitors acting on behalf of [insert name of opposing party/parties] to confirm their agreement to the terms of this letter. The aim of this letter is to provide you with the relevant factual background, key documents and to identify the issues you will need to consider. As an expert witness you will be aware of the need for you to comply with certain duties and ensure...
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Should internal staffing costs be deemed indirect or direct losses? 'Direct loss' and 'indirect loss' 'Indirect loss' is most frequently considered in the context of assessing quantum of damages and in interpreting exemption clauses. The normal function of damages for breach of contract is compensatory but is limited by the principles of causation and remoteness. Damage which is too remote is not recoverable even if there is a causal link between the breach of contract and the loss. Hadley v Baxendale established the 'two limb test' for assessing whether damage resulting from a breach of contract is or is not too remote. Damages may only be recovered for: • losses arising naturally—the defaulting party is liable for any losses, which may fairly and reasonably can be considered as arising naturally from the breach of contract. The court will take into consideration the type of trade or transaction in question (direct loss), or • potentially foreseeable losses—those which were in the reasonable contemplation of the parties at...
Where a local authority covenants to apply a sum paid under a section 106 agreement for a specific purpose only. In the absence of anything in the section 106 agreement, is there anything which restricts the local authority from indefinitely failing to fulfil the specific purpose? The remedies available to a party to a section 106 agreement (section 106 of the Town and Country Planning Act 1990 (TCPA 1990)) to enforce it against the authority would depend on the terms of the TCPA 1990, s 106 agreement (or any other covenant made by the authority to this effect). Usually, the purpose for which a financial contribution under a planning obligation is to be used will be specified in the TCPA 1990, s 106 agreement and additionally the authority will covenant to only spend the sum as specified. TCPA 1990, s 106 agreements also often provide for a repayment period, whereby the sum is to be repaid to the developer if the sum
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PI & Clinical Negligence analysis: This was an appeal against a county court decision arising out of a fall into a ditch, where protective barriers had not been robust enough to prevent the fall. The claim was dismissed at first instance. The claimant/appellant appealed on the basis that inter alia, the judge incorrectly interpreted and construed the Code of Practice, published by the Secretary of State and thereunder entitled Safety at Street Works and Road Works (‘the Code’), and failed to give due weight to the fact that the Code was statutory guidance which set or informed the applicable standard of care. There was also an appeal in relation to whether these works constituted an obstruction. The court found that the Code had substantially been complied with, that such compliance was prima facie evidence of reasonableness, that deviations from the Code did not of themselves amount to negligence, and that these works were not obstructing access to the highway, and so that cause of action could not succeed. Written by...
This week’s edition of PI & Clinical Negligence weekly highlights features key amendments to legal aid regulations and a Court of Appeal ruling reinforcing the need for timely progression of road traffic claims. We include decisions on highway authority liability, clinical negligence due to delayed diagnosis and data misuse by an employer causing exacerbation of psychological injuries. We also explore cases involving in costs transparency and recovery of success fees and ATE premiums. In addition, we have our usual roundup of other news, content updates and New Law Journal articles of interest.
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