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Flashcards in Negligence: Factual Causation Deck (24)
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BAI (Run Off) v Durham (2012)

Lord Mance links rules regarding with common sense: "Rules regarding causation are created by the courts for the purpose of determining when liability arises in particular contexts. Normally, they reflect a common sense understanding of what is ordinarily understood when we speak of a cause in a particular context" [55].


Barnett v Chelsea & Kensington Hospital Mgmt Committee (1968)

B's tea was laced with arsenic by an unknown murderer. The doctor (D's employee) refused to see him when he visited the hospital, and B was sent away. B died from poisoning. His wife sued the hospital.

Was the test of causation satisfied? It was held not - by the time they got to the hospital, it was already too late to administer the antidote to arsenic: no matter what the doctor did, they could not save their life.

It was negligent in refusing to admit B, but no damages were available.


Bonnington Castings Ltd. v Wardlaw (1956)

This case is the leading authority for an exception in the law of negligence made specifically for the multiple cumulative causes dilemma. As such, it is enough to show that D materially contributed to the harm suffered by C:

"It appears to me that the source of his disease was the dust from both sources [where one source of dust exposure was due to negligence, and one wasn't], and the real question is whether the dust from the swing grinders materially contributed to the disease. What is a material contribution must be a question of degree…A contribution which comes within the exception de minimis non curat lex is not material, but I think that any contribution which does not fall within that exception must be material. I do not see how there can be something too large to come within the de minimis principle yet too small to be material" (Lord Reid at [621])


Holtby v Brigham & Cowan (Hull) Ltd. (2003)

This case concerned a divisible injury (i.e. the severity of the disease is related to the quantity of the agent that is ingested). A claimant who sought damages for injuries suffered by the ingestion of asbestos whilst working for one employer, but had also worked for other periods for other employers where similar activities had been involved, had the onus in the claim to prove causation. It might be impossible to apportion the damage exactly, but he must demonstrate a substantial contribution from the defendant. Having been found responsible in this way, the employer would be responsible only to the extent of his contribution to the asbestosis. Each tortfeasor should be responsible only for the proportion which its exposure contributed to the damage. This is seen in Stuart-Smith LJ judgement: "[The claimant] will be entitled to succeed if he can prove that the defendant's tortious conduct made a material contribution to his disability. But strictly speaking the defendant is liable only to the extent of that contribution… in my view, the court must do the best it can to achieve justice, not only to the claimant but also to the defendant, and among defendants" [20].


Bailey v MOD (2008)

A 'weakness' developed within C due to a negligent operation (to remove gallstones) and post-op care. Combined with an entirely unconnected pancreatitis, a 'state of weakness' occurred which caused C to not be able to clear her air passages whilst vomiting. She chocked and suffered brain damage (thus, an example of an indivisible injury).

It was held that in this situation if you can show the material contribution to harm from both causes, to cumulative effect equates to liability. The 'but for' test is therefore somewhat relaxed when there is inherent uncertainty. Waller LJ states: "The instant case involved cumulative causes acting so as to create a weakness and thus the judge [from the High Court] in my view applied the right test, and was entitled to reach the conclusion he did" [47].


Williams v The Bermuda Hospitals Board (UK Privy Council) (2016)

C suffered complications after surgery to remove appendicitis resulting from sepsis, which evolved due to the delay in treatment. He alleges the delay amounts to negligence.

The PC uses this case to review the law of material contribution to harm (where there is more than one cause). Lord Toulson stresses that we need to think about the sequence of events; e.g. whether a later event has made a material contribution to the outcome, or whether an earlier event has been "so overtaken by later events as to not have made a material contribution to the outcome." He further states that "as a matter of principle, successive events are capable of each making a material contribution to the subsequent outcome" [39].

The UKPC further notes that a claim will fail if the most that can be said is that the claimant’s injury is likely to have been caused by one or more of a number of disparate factors, one of which was attributable to a wrongful act or omission of the defendant. Accordingly, the claimant will not have shown as a matter of probability that the factor attributable to the defendant caused the injury. It was found that because this was an indivisible condition, it was not possible to say that the delay caused the sepsis, but it was possible to conclude that on the 'balance of probabilities' the delay materially contributed to the condition. The Judges concluded that as a matter of fact, a third of the sepsis (i.e. the 2-hour delay) was a material contribution to the condition.

Commenting on Bailey, the PC did not share the view of the CoA that the case involved a relaxation of the 'but-for' test and considered that Bailey was decided on its own facts. The Judges concluded that the totality of the Claimant’s weakened condition caused the harm and accordingly the case would succeed on the “but-for” test. There was, therefore, no need to widen the 'but for' test as the Court of Appeal had sought to do.


Petroleum Co. of Trinidad and Tobago v Ryan (UKPC) (2017)

Here, it was held on appeal that the petroleum company was not liable for C's respiratory problems (allegedly) due to the hydrocarbon emissions from a disused oil well. Since no link had been established between the emissions and the damage claimed, the Board held that it was not possible to apply a flexible approach to causation on policy grounds taking into account public awareness of environmental issues and the responsibilities of polluters.


McGhee v National Coal Board (1972)

Exposure to brick dust whilst working. Ds did not provide showers for the end of the day. Therefore some of the exposure was not negligent, some of it was. In this case, the more you were exposed, the greater the risk was of you contracting a disease - science cannot provide us with the 'tipping point'.

Held that you can still recover. Lord Salmon writes that the distinction between the material increase of risk and the material contribution to harm is "unrecognised by the common law" (at p. 12-3). However, this statement is surely wrong, as Fairchild shows.


Fairchild v Glenhaven Funeral Services (2002)

Cs were exposed to asbestos dust during the course of employment with more than one contractor. They contracted mesothelioma as a result of the exposure. It was medically impossible to determine which of the employers had exposed Cs to the particular dust (containing the 'fibres' of asbestos) which caused the cancer. All we know is that the more you are exposed to asbestos, the greater the risk of you developing cancer.

The CoA held that if one applied the 'but for' test, Cs' claims failed on the balance of probabilities (however, if there was only one tortfeasor, the Cs would have been able to claim) (Lord Bingham at [9]). So the question here is: does the claim fail because we cannot say "but for A's neglect, C would not have developed the cancer"?

In short, no. This case establishes the so-called 'Fairchild exception' to the 'but for' test, regarding the material contribution to the risk of harm (via asbestos exposure) (Lord Bingham at [2]). This is nicely summed up by Lord Roger at [168]: "Following the approach in McGhee I...hold that, by proving that the defendants individually materially increased the risk that the men would develop mesothelioma due to inhaling asbestos fibres, the claimants are taken in law to have proved that the defendants materially contributed to their illness."

The question, then, turns to whether this 'opens the floodgates'; now everyone wants an exception! Perhaps recognising this, Lord Rodger goes on to narrow the applicability of Fairchild: the case has to fall within evidential uncertainty, and the potential causes must be the same agent (asbestos) or an agent that operates in fundamentally the same manner [170]. Lord Nicholls stresses the need for the limited application of Fairchild, recognising how it can quickly become a "source of injustice to defendants" if viewed simply as a 'relaxation measure' "whenever a plaintiff has difficulty, perhaps understandable difficulty, in discharging the burden of proof resting on him" [43].


Barker v Corus (2006)

This case has facts very similar to Fairchild, except that C's husband had been exposed to asbestos during periods of self-employment too. As such, some of the exposure could be C's own fault. Moreover, some of the defendant employers were by now insolvent. The issues here are thereby:

Whether Fairchild could apply to C's claim;
And if so, how are damages to be assessed? (In Fairchild, it was assumed that if you can establish liability against one defendant, that are liable in full (D can thereafter seek contributions from others))

It was raised here that we should modify the extent of liability: we should bear in mind the relative harshness of finding D fully liable, and allow that D is only liable for the extent of exposure. This was accepted (whilst still allowing C to recover - as such, the Fairchild exception could still operate even though not all of the potential causes of damage were tortious, and a non-tortious source of risk did not have to be created by someone who was also a tortfeasor) (Lord Hoffman at [31]).

Lord Hoffman believed that this approach was 'less harsh' than attributing full blame on 'the last D standing':

"In my opinion, the attribution of liability according to the relative degree of contribution to the chance of the disease being contracted would smooth the roughness of the justice which a rule of joint and several liability creates"

"The justification for the joint and several liabliity rule is that if you caused harm, there is no reason why your liability should be reduced because someone else also caused the same harm. But when liability is exceptionally imposed because you may have caused harm, the same considerations do not apply and fairness suggests that if more than one person may have been responsible, liability should be divided according to the probability that one or other caused the harm" [43].

Lord Rodger provides a powerful dissent that illustrates the disagreement between the two Lords on what Fairchild stood for [71]. Lord Rodger begins by stating that negligence requires damage; making things 'more likely' is not actionable unless you suffer the relevant damage. You should therefore not consider risk in the 'abstract'; the risk is part of the causal test in establishing negligence: "The defendant was liable for causing the mesothelioma, not for causing the risk of developing mesothelioma: the damage was the mesothelioma, not the risk of developing mesothelioma" (regarding Fairchild) [68].

Indeed, the whole point of Fairchild was to allow the Cs to claim; the 'proportion to exposure' argument is therefore wrong. Lord Rodger worried that "as a result [of the majority approach], claimants will often end up with only a small proportion of the damages which would normally be payable for their loss. The desirability of the courts, rather than Parliament, throwing this lifeline to wrongdoers and their insurers at the expense of claimants is not obvious to me" [90].


The Compensation Act 2006 [also seen in Breach of Duty deck]

s.3 of this Act specifically reverses the decision in Barker (i.e., agreeing with Lord Rodger!) - but only in relation to mesothelioma cases.

s.3(1): 'This section applies where -
(a) a person ("the responsible person") has negligently or in breach of statutory duty caused or permitted another person ("the victim") to be exposed to asbestos,
(b) the victim has contracted mesothelioma as a result of exposure to asbestos,
(c) because of the nature of mesothelioma and the state of medical science, it is not possible to determine with certainty whether it was the exposure mentioned in paragraph (a) or another exposure which caused the victim to become ill, and
(d) the responsible person is liable in tort, by virtue of the exposure mentioned in paragraph (a), in connection with damage caused to the victim by the disease (whether by reason of having materially increased a risk or for any other reason).'

s.3(2): 'The responsible person shall be liable -
(a) in respect of the whole of the damage caused to the victim by the disease (irrespective of whether the victim was also exposed to asbestos -
(i) other than by the responsible person, whether or not in circumstances in which another person has liability in tort, or
(ii) by the responsible person in circumstances in which he has no liability in tort), and
(b) jointly and severally liable with any other responsible person.'

s.16(3): 'Section 3 shall be treated as having always had effect.'

s.16(4) 'But the sections shall have no effect in relation to -
(a) a claim which is settled before 3rd May 2006 (whether or not legal proceedings in relation to the claim have been instituted), or
(b) legal proceedings which are determined before that date.'

(s.16(4a) explicitly acknowledges Barker v Corus - 3/5/2006 was the date the case was decided)


Sienkiewicz v Grief (2011)

Apparently, just by living in the Wirral you have a higher exposure to asbestos than normal.

The Court took this case as an opportunity to revisit Barker: holding that these exceptions only apply for as long as we have scientific uncertainty (i.e. an evidential gap) - as such, the Fairchild/Barker rule + s3 CA 2006 "does not preclude the courts from reverting to the conventional approach of balance of probabilities in mesothelioma cases should advances in medical science in relation to this disease make such a step appropriate" (Lord Phillips at [70]).

Lord Rodger believes that it is important to bear in mind how the judges in Fairchild considered the exception to be a "proper balance between the interests of claimants and defendants in these cases." Despite the "harrowing nature" of this illness, he warns that judges should not take a "lax approach" towards the proof of the essential elements necessary for negligence; that would "only result in the balance struck by the Fairchild exception being distorted" [166].

Lord Brown goes on to state that the Courts "tamper with the "but for" test of causation at its peril" [186].


The Trigger Litigation (2012)

The difficulty here is that if we say each tortfeasor is liable - but you can only 'trigger' insurance cover once you have developed the illness - how does this affect the length of insurance contracts (since e.g. mesothelioma has a long latency period)?

It is held that it is 'enough' to trigger insurance if one can show relevant exposure during the policy period - even if the illness develops later. Lord Mance writes that 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" [74].


Wilsher v Essex Area HA (1988)

This case provides for a limitation on Fairchild. Here, a baby developed a serious eye condition. There were many possible causes, one of which could have been due to negligence by the hospital. It was held that the claimant couldn't satisfy the causation test. The general rule, therefore, is that if there is more than one thing that could have caused the injury, you haven't proved your case (Browne-Wilkinson VC p. 779 - dissenting in the CoA, endorsed by the HoL). Fairchild is, therefore, a very narrow exception.


Heneghan v Manchester Dry Docks (2016)

In this case, C developed (another form) of lung cancer as a result of exposure to asbestos. This exposure was omitted by several different employers. Lord Dyson held that he could see no reason not to apply the Fairchild exception to this case, as it was not "materially different" [48]. However, it was decided that joint and several liability did not apply here, as the CA 2006 only applied to mesothelioma cases. Thus, the claim was only successful to 32.5% of the damage.


IEG v Zurich (2015)

A claim had been made for mesothelioma following exposure to asbestos, but the claim arose in Guernsey. The 2006 CA amended the 'special rule' in Fairchild, but the Act did not apply in Guernsey. The Court was now asked to consider where it stood in common law. The claim had been settled, and liability apportioned between the insurers who had covered the various years over which the claimant had worked, at first instance, but the CoA had overturned that claim.

The special rule amounted to a) ‘a person contracting mesothelioma, after being exposed to significant quantities of asbestos dust originating from different sources over the same or different periods, can sue any person who was (negligently or in breach of duty) responsible for any such source of exposure, although unable to show which exposure in probability actually led or contributed to the disease’ and b) ‘This rule applies even if the only potential sources consist of the ambient environmental exposure which the population generally experiences and some other negligently created source which only increases this ambient exposure by a small percentage’.

Held: The appeal succeeded. The position at common law stood as it had been stated in the Barker case, notwithstanding the ‘Trigger’ line of cases; proportionate recovery still applied (Lord Mance at [31]). As such, Barker remains the common law position except in specific cases involving asbestos and mesothelioma.

Lord Mance goes on to state that: "As the volume of case law indicates and not surprisingly, it has proved difficult to work through the implications of the special rule in Fairchild. But, having, for wholly understandable reasons, gone down the Fairchild route, the common law must, in my view, face up to the consequences, if necessary by further innovation... "Trigger" may be regarded as an instance of performance of this role" [39].

The dissenting judges indicate how a particularly innocuous deviation from common law in Fairchild has resulted in 'chaos' due to unaddressed implications (see Lord Sumption, dissenting, at [128]; Lords Neuberger and Reed, dissenting, at [191]).


Brett v University of Reading (2007)

Where it was possible to prove that the deceased had been exposed to asbestos during the course of his employment but not that the employer had been in breach of duty, the employer was not liable for the deceased contracting mesothelioma as the deceased had also been exposed to asbestos in earlier employments. This case serves to prove that Fairchild does not justify relaxing tests for other elements of negligence (i.e. in this case, there was no breach of duty).


Williams v University of Birmingham (2011)

The deceased had suffered mesothelioma. It was said to have been contracted whilst studying at the defendant University. His study involved working in a closed tunnel with asbestos lagged pipes.

It was held that in establishing a breach of duty, the claimant had to take into account the 'de minimis' rule as it is relevant at this stage. Moreover, if a breach of duty is established, the claimant still had to establish causation. The court had to ask whether the exposure was such as materially to increase the risk of the claimant contracting mesothelioma. That exercise was conducted on common law principles as adopted for mesothelioma cases. It was clear from Sienkiewicz that s3 CA 2006 operated only once a claimant had proved breach of duty and causation. This case exemplifies how Fairchild does not justify relaxing tests for other elements of negligence.


Hotson v East Berkshire (1987)

C not correctly diagnosed by the hospital for a period of time; this led to the development of a disability.

Can the Court find liability of D for C's subsequent injury? Difficulty for C was that the judge of first instance decided that there was a 75% of C developing condition anyways…so C is suing for the 25% chance of avoiding it?

Claim rejected - cannot prove causation of injury as a result of a negligent breach. The judge at first instance decided that the disability "was not caused by the admitted breach by the defendants of their duty of care but was caused by the separation of the left femoral epiphysis when he fell some 12 feet from a rope on which he had been swinging" (Lord Ackner at [793]).


Gregg v Scott (2005)

The defendant, Dr Scott, misdiagnosed negligently the plaintiff's malignant cancer, stating it to be benign. This had the effect of delaying Mr Gregg's treatment by nine months, reducing his chances of surviving ten years from 42% to 25%. Under the earlier decision of Hotson, the view taken at first instance - and by the Court of Appeal - was that the claimant could not establish that the defendant had prevented him being cured, as his original chance of a cure was below 50%. The plaintiff argued that he was entitled to recover for the loss of the 17% chance the defendant had deprived him of.

It was held that there was no liability, as one cannot prove that the doctor was the cause of a less favourable outcome. As such, loss of a chance is not a recoverable head of damage in medical negligence (reaffirming Hotson). There seems to be a difference between loss of a chance and loss of a favourable outcome.

Lord Hoffmann writes that "There seem to me to be no new arguments or change of circumstances which could justify such a radical departure from precedent" [85].

Lord Nicholls dissents, believing the judgement is unfair as success depends entirely on what the odds were when you first see the doctor; "The loss of a 45% prospect of recovery is just as much of a real loss for a patient as the loss of a 55% prospect of recovery. 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. But, it is said, in one case the patient has a remedy, in the other he does not. This would make no sort of sense" [3-4].
Regarding the different approach taken in financial cases -
"The law would rightly be open to reproach were it to provide a remedy if what is lost by a professional adviser's negligence is a financial opportunity or chance but refuse a remedy where what is lost by a doctor's negligence is the chance of health or even life itself. Justice requires that in the latter case as much as the former the loss of a chance should constitute actionable damage" [25].

He goes on to state how when the case is suitable, the "courts are prepared to adapt their process so as to leap an evidentiary gap when overall fairness plainly so requires. Fairchild is a recent illustration of this in a different context. In the present context use of statistics for the purpose of evaluating a lost chance makes good sense...[statistics] may afford the only basis on which a court can evaluate the diminution in prospects of recovery of an individual patient which may be expected to follow from delay in giving him treatment" [31]. So whilst approving the usage of statistics, he obviously does not think there should be such a substantive difference in consequence between e.g. 42% and 52% of living ten years.


Allied Maples v Simmons and Simmons (1995)

Regarding the loss of a chance, the Courts take a different view in economic loss cases, as here it deals mostly with decision making and having relevant opportunities. We can thus quantify the loss of chance (to have a preferred outcome) in a financial manner (i.e. is quantifiable in a distinct manner which personal injury isn't). Nevertheless, the plaintiff must prove he had a "real or substantial chance as opposed to a speculative one." If successful, the evaluation of chance is part of the damage assessment (from just about substantial to near certainty) (Stuart-Smith LJ at p. 1614).


Chester v Afshar (2004)

This case regards the disclosure of risk as an exception to the general rule of factual causation. Miss Chester was referred to Dr Afshar, a neurological expert, about some lower back pain. He told her that surgery was a solution, but (the judge found at first instance) did not inform her of the 1-2% risk of these operations going wrong. She suffered a complication, called cauda equina syndrome. The judge found that there was a causal connection between the failure to inform and Miss Chester's injuries - if she had been informed, she would have sought further advice or alternatives. The CoA upheld the first instance judge.

The UKSC held that it was enough for liability to prove that C would not have had the operation on that very day - even if C admitted that the operation would eventually have been carried out anyways. Lord Steyn for the majority states that "Her right of autonomy and dignity can and ought to be vindicated by a narrow and modest departure from traditional causation principles" [24]. He thus found a causal connection between D's failure to inform C, and her eventual complications. Lord Hope reiterates the 'vindication of rights' approach regarding tort's purpose (at least in this area) at [87]. He goes on to say that the test of causation is satisfied on policy grounds - the injury was "intimately involved with the duty to warn...[the duty owed by the doctor who performed the surgery] was the product of the very risk that she should have been warned about when she gave her consent. So I can hold that it can be regarded as having been caused, in the legal sense, by the breach of that duty" [87].

In Lord Hoffmann's dissent, he stresses the fact that the risk was the same regardless of whether a warning was given: "The question is whether one would have taken the opportunity to avoid or reduce the risk, not whether one would have changed the scenario in some irrelevant detail" (it seems, therefore, important to him that C would have proceeded with the surgery regardless - something which, according to the first instance judge, did not affect the risk at all) [31].


Correia v University Hospital of North Staffordshire NHS Trust (2017)

This case exemplifies how the Courts are unwilling to expand the 'duty to warn' (Afshar) to other cases; Simon LJ seems to disapprove of the "potentially far reaching consequences" of the implications concerning a finding that "a negligent act in the course of an operation vitiates [impairs] consent" [27].


Duce v Worcestershire NHS Trust (2018) [also seen in the Professional Standards deck]

This case provides clarity on a more general narrative within legal causation: 'enough' exceptions have been created. Hamblen LJ makes clear that the majority in Afshar did not negate the 'but for' test requirement in establishing a duty; it was "interpreted by the majority" [69].