Factual Causation Flashcards
Barnett v Chelsea and Kensington Hospital Management Committee
Mr Barnett went to hospital complaining of severe stomach pains and vomiting. He was seen by a nurse who telephoned the doctor on duty. The doctor told her to send him home and contact his GP in the morning. Mr Barnett died five hours later from arsenic poisoning. Had the doctor examined Mr Barnett at the time there would have been nothing the doctor could have done to save him.
Held: The hospital was not liable as the doctor’s failure to examine the patient did not cause his death. Introduced the ‘but for’ test ie would the result have occurred but for the act or omission of the defendant? If yes, the defendant is not liable.
Bonnington Castings Ltd v Wardlaw
Material contribution to the harm, and is a question of degree
Holtby v Brigham & Cowan (Hull) Ltd
Material contribution to the harm. In divisible illness, the defendant is liable only to the extent of that contribution..
Bailey v Ministry of Defence
The claimant had suffered brain damage following cardiac arrest after inhaling vomit. She had inhaled her vomit because she was in a very weakened state. Two causes had contributed to her weakness, one tortious, the other not. The judge below held that the tortious cause had made a material contribution to the weakness and the claimant succeeded in full. The employer appealed.
Held: The appeal failed. It was not possible to say with any confidence whether, without the tortious contribution, the claimant would have been so weak as to inhale her vomit. It was not suggested either in this court or below that the damages should be apportioned.
McGhee v National Coal Board
Evidentiary Gaps. (dermatitis)
Held: The claimant only had to demonstrate that the dust attributable to the breach of duty materially increased the risk of him contract dermatitis
Fairchild v Glenhaven Funeral Services
Evidentiary Gaps. Each of the claimants had been exposed to asbestos by a number of different employers. They were unable to demonstrate, and medical science was unable to detect, which employer exposed each of them to the one fatal fibre.
Held: If the claimants could demonstrate that one employer had materially increased the risk of contracting mesothelioma they were entitled to claim full compensation from that one employer. (NOTE COMPENSATION ACT 2006)
Barker v Corus
Evidentiary Gaps. Proportionate liability of employers in mesothilioma - here he was self-employed.
If you have two agents that operate in substantially the same way, and they contribute to the same harm, then liability
but COMPENSATION ACT 2006
Section 3, Compensation Act 2006
In azbestosis -all employers jointly and severally liable
Sienkiewicz v Grief
Material contribution to the risk of harm - even a single exposure.
Durham v BAI (Run off) Ltd - The Trigger Litigation
Insurance liability triggered by the exposure, no the harm being suffered
[74] ‘The concept of a disease being “caused” during the policy period must be interpreted sufficiently flexibly to embrace the role assigned to exposure by the rule in Fairchild’
Wilsher v Essex Area Health Authority
Baby boy in intensive care after premature birth, needed to be supplied with extra oxygen and the junior doctor responsible made a mistake in carrying out the monitoring of his oxygen levels; He became ill as a result. The boy went on to develop an eye condition, one of the potential causes could have been an exposure to excess oxygen, but there were 4/5 other causes (including e.g. lights), it was impossible to say which was responsible for the condition.
- claim failed in the HL, because simply pointing to one of several different causes means you haven’t proven your claim
Heneghan v Manchester Dry Docks
- virtually identical to Fairchild, but developed a different kind of lung cancer
- you can rely on Fairchild, there is nothing intrinsic in the particular cancer
- need agency requirement and scientific inadequacy to apply Fairchild
- but the Compensation Act does not apply, recovery would be proportionate as in Barker
International Energy Group Ltd v Zurich Insurance Plc (UK)
Barker remains as part of the common law of England
Hotson v East Berkshire AHA
LOSS OF CHANCE
The claimant as a school boy fell out of a tree from a height of 12 foot. He suffered a fracture to his hip and was taken to hospital. The hospital failed to diagnose his fracture and sent him home. He was in severe pain so he was taken back to hospital 5 days later where an X ray revealed his injury. He was treated and suffered an avascular necrosis which resulted in him having a permanent disability and a virtual certainty that he would develop osteoarthritis. According to medical evidence, had he been correctly diagnosed initially there was a 75% chance that he would have still developed this condition, but there was a 25% chance that he would have made a full recovery.
Gregg v Scott
The claimant found a lump under his arm. He Consulted his doctor who negligently diagnosed it as innocuous when in fact it was cancerous. This lead to a nine month delay in the claimant receiving treatment. During this period the claimant’s condition deteriorated and the cancer spread. This reduced his prospect of disease free survival from 42% to 25%. The delay also caused the claimant to undergo immediate high dose chemotherapy. The claimant brought an action based on his loss of a chance of a disease free survival.
Held 3:2 Loss of a chance is not a recoverable head of damage in medical negligence claims. Hotson v East Berkshire affirmed.
Lord Nicholls dissented and said percentages are bullshit. ‘In both cases the doctor was in breach of his duty to his patient. In both cases the patient was worse off. He lost something of importance and value’
