Damage evaluations

• On the Balance of Probabilities/But For Test

  Claimant has burden of proof and standard of proof

  can be costly

  balance of probabilities (51%)

  But for - question of fact, can be multiples d's no causal uncertainty

  Judge can ignore problems due to policy reasons (Chester) Dr failed to warn
• Remoteness

  limit scope of D's potential liability

  arbitory and flexible approach for foreseeability

  subjective (Wagon Mound case)

  egg shell skull rule - protects vulnerable C's (Smith v Leech Brain)

  C can be compensated that D could not have contemplated
• Inconsistent Outcomes for Non-Intervening Acts

  d's negligence may not cause injury or damage

  sufficiently significant to free defendant from liability

  can remove blame even if they have done wrong

  nature (Carslogie Steamship Co v Royal Norwegian Government)
• Cost of Bringing and Losing a Case

  cost can be substantial, cost may put D out of business (Smith v Eric Bush)

  C has to prove claim - medical/expert reports

  may deter C, lack access to justice