Entry 15

Today I was meant to have a lecture in Equity, but unfortunately, the lecturer is unwell, and it was postponed. This means that I just had Tort law today, like before it is mainly going over cases, which means that today I’ll just have a short blog post, as I have no intention of repeating case summaries.

The main takeaway from the lecture is that there is something called the “But For” test which is used to help determine causation. It is considered the general principle when trying to figure out causation in the case of tort. The leading case for this Barnett v Chelsea & Kensington Hospital (I know, that I said that I wasn’t going to repeat case summaries – but technically this is just one) which is about Barnett going to hospital after getting arsenic poisoning (unknown at the time) and was sent home after a nurse consulted a doctor over the phone. He died within 5 hours, and his widow sued for damages saying that the hospital had been negligent and failed in its duty to care for her husband. While this may be true, however, given the amount of arsenic that Barnett had consumed, it was determined that there was no hope of saving him. Hence causation of his death has nothing to do with his lack of treatment; therefore exonerating the Hospital. From this, we can see that there is an all or nothing attitude with Tort. (bear in mind that in Tort you do not need to prove beyond reasonable doubt as is the case of criminal law)

Sometimes this general principle is ignored for fairness, and there are exceptions, known as the Fairchild Principle (from a case called Fairchild v Glenhaven Funeral Services Ltd). Mostly what to take from this, is that sometimes judges do deviate from the general principle for reasons which are not always clear. This brings up problems that if the courts have been unable to sort out, by statute. If there is no precise definition of what makes something an exception, then how can the Judges justify why they have come to that conclusion if there are similar? If we are meant to live in a just society, then we can have exceptions. Just not arbitrary ones, which is coming across from the cases.

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