Causation and remoteness Flashcards
(41 cards)
What does causation do?
Provide a link between D’s action and C’s loss, seeing if D should be liable for the loss in question.
Factual causation (‘but for’)
Would C’s damage have occurred but for D’s action?
The answer of yes or no is based on the balance of probabilities (as opposed to ‘beyond reasonable doubt’ in criminal law).
Barnett v Chelsea and Kensington [1969]
This case established the balance of probabilities and the but for test.
C’s husband taken ill at work, hospital negligently sent him home to get some rest. C died as a result of acute arsenic poisoning.
Held: C’s husband would have died but for doctor intervention, thus D’s negligence did not cause C’s loss.
Multiple potential causes
When it is factually impossible to establish a single cause of damage and there are various likely causes. This is an exception to the but for rule as one single defendant might not be 50% likely to have caused the damage.
Wilsher v Essex HA [1987]
Facts: A baby was placed in an incubator and negligently received too much oxygen. The baby developed an incurable eye condition.
Judgment: This was one of 5 potential causes however, so on the balance of probabilities it could not be proven to be the fault of the doctor.
A non-natural cause (i.e. negligence) must be the DOMINANT factor in causing the damage.
Material contribution to the harm
Where it can be found that a defendant materially contributed to the harm, then liability can be established.
Bailey v MoD [2008]
D materially contributed to the harm in the cause of a serious illness. Because the hospital’s negligence materially contributed to the harm (the illness had two competing causes, one natural and one negligent), the hospital was found liable.
Bonnington Castings v Wardlaw [1956]
A factory allowed a negligent build up of dust to occur, an employee developed pneumoconiosis but it the but for test could not be established. The Lords bypassed the but for test by establishing that the employer contributed to the risk of contracting the disease and therefore ignored it.
Holtby v Brigham & Cowan (Hull) [2000]
Established in this case that compensation could only be claimed proportionate to the negligence of the defendant, based on the extent of exposure (time plus intensity).
Thus, following from Bonnington, where a diseased is contracted due to cumulative exposure, the negligent part need only contribute to the harm and not necessarily make it likely.
Material increase in risk
Where a defendant materially contributes to the risk of contracting a disease (i.e. one with a single exposure as the cause), they can be found liable, providing another exception to the but for test.
McGhee v National Coal Board [1973]
It could not be established if innocent or guilty exposure to brick dust was the cause of the claimant’s skin condition. The dust was innocent at work but guilty after work. The company was negligent in not providing showers at the work but since dermatitis was not a cumulative condition, the Lords found that the guilty dust increased the risk of disease thus making the employer liable.
This case shows that there still is a but for test involved - but for the defendant’s negligence, the risk would not have increased.
The idea that the material increase in risk was the same as a material increase in harm was rejected in Barker v Corus [2006].
The Mesothelioma Exception
This is an exception for this disease where the but for test can be established, but not for a single person. It was established in Fairchild v Glenhaven Funeral Services [2002].
Fairchild v Glenhaven Funeral Services [2002]
Facts: C developed mesthelioma from asbestos exposure - it was out of negligence for one employer but it could not be establsihed which.
Judgment: it could not be established on the balance of probabilities that one defendant caused it, therefore they used McGhee as all employers materially increased the risk. Thus factual causation was established, but it could not be established for whom.
This was stressed as an EXCEPTION to the rule.
MoD v AB and Others [2012]
Limited Fairchild to mesothelioma as it would not be extended to various cancers caused by nuclear testings in the Pacific.
Barker v Corus [2006]
This case revisited Fairchild. It refined the principle that several employers would only be proportionately liable to the amount that they contributed to risk of mesothelioma (i.e. the amount of time spent with them).
Compensation Act 2006
This reversed the decision in Barker, stating that if conditions of Fairchild were met, then all negligent employers would be jointly and severally liable.
Sienkiewicz v Grief [2011]
This case questioned the Compensation Act and the Lords decided that one employer could be liable under the Fairchild principles. They believed that the but for test was unnecessary.
In this case, an individual was nelgigently exposed to asbestos in the work place but where they lived had an 18% increased risk of asbestos related diseases. Thus Fairchild was applied to a single employer.
Lord Barker stated that it would only apply to mesothelioma and the but for test will not be bypassed in other cases.
Failure to inform
In Sidaway v Board of Governors of the Bethlem Royal Hospital [1985 a surgeon failed to disclose a tiny risk of paralysis in a back surgery. When the damage materialised the claimant claimed but was denied and the dr had no liability.
This changed in Chester v Afshar [2005] in which C developed a serious spinal condition following an operation, in which there was a tiny risk of it happening. The Lords found that it does not matter if she would have known of the risk and thus moved the operation to a later date, there was not sufficient causation of the doctor’s failure to disclose. Nonetheless it was found to be a breach of the doctors duty.
Indeterminate causes
Where it cannot be determined which of the two defendant’s are liable, both will be found jointly liable.
Cook v Lewis [1951]
Two hunters fired identical bullets and hit the claimant - it could not be established which hit the claimant thus they were jointly liable (even though it was clearly only one of them).
Fitzgerland v Lane [1987]
Two successive car crashes caused the claimant to become tetraplegic. It could not be established which so both were found liable.
Loss of chance
Where a chance is lost by the claimant as a result of another’s negligence, the chance must have been above 50% prior to the defendant’s negligence.
Hotson v East Berks HA [1987]
C fell out of a tree, injured his hip and was negligently misdiagnosed in hospital.
His chance of developing the hip disease that following from the negligent misdiagnosis was still 75% despite the actiosn of the doctor, therefore it could not be established on the balance of probabilities that the negligence caused the disease to occur. Only a 25% chance of not developing the disease occurred.
Gregg v Scott [2005]
A cancerous lump was misdiagnosed as not being cancerous. His chance of survival decreased from 42% to 25%, therefore he was still MORE LIKELY THAN NOT to have died.
The House of Lords held that a lost chance could not form the basis of a medical claim.
