Damage

• Factual Causation) Barnett :

  Test - but for the D's breach of duty, the injury or damage to the claimant would not have occurred.
• Legal Causation) Wagon Mound :

  The claimant can not claim for damage that is unforeseeable and too remote.
• Thin Skull Rule) Smith v Leech Brain :

  The D must take the C as they find them.
• Evaluation point 1) Judicial Creativity :

  The law on damage has largely been made by common law, due to a lack of statute, meaning judicial creativity has occurred.

  
  

  Meaning that this is very unpredictable as judges can change law at any time. So legal professionals cannot always predict the outcome of cases or advice correctly.
• Evaluation point 2) The rules are fair to the claimant :

  The 'But For' test used to prove factual causations is fair on the claimant because the defendant will have to pay compensation for any damage they caused.

  
  

  Therefore this is fair on the D as the test will be followed and D will only pay for what they caused, which ensures consistency.
• Evaluation point 3) The law is applied inconsistently :

  There has been inconsistent application of the law as the C can only claim for foreseeable damage.

  
  

  Judges opinions aren't always the same with legal causation, inconsistent. The judge could take a narrow approach as they did in Doughty v Turner and find that the damage is unforeseeable.
• Evaluation point 4) The Cost :

  Proving fault can be costly for the claimant which can cause some not to try and seek justice.

  
  

  They are required to pay for evidence, expert witnesses can cost more, so justice will not be available for everyone.