4. Negligence - causation I Flashcards
Barnett v Chelsea Hospital 1969 1 QB 428
- Preliminary test: “but for/ sine qua non/ necessity”
o Case related to the ‘but for test’ of causation
o Three men attended the emergency department of the hospital run by the Chelsea & Kensington Hospital Management Committee after having been vomiting for three hours due to drinking tea but the casualty officer did not see them advising that they should go home and call their own doctors. One of the men died some hours later. The post mortem showed arsenic poisoning which was a rare cause of death.
o Held
o On the ‘but for test’, even if the deceased had been examined and admitted for treatment, there was little or no chance that the only effective antidote would have been administered to him in time. Although the hospital had been negligent, it was more likely that he would have died regardless of treatment; the negligence was not the cause of death.
o Nield J
i) The man would have died even if seen and treated in the hospital. The defendant could not be held liable for consequences that they could not have prevented
o My point of analysis + so is the standard of care provided to patients too low? Is this a really valid reason to void ‘but for’ when negligence is present?
Chester v Afshar 2005 1 AC 134
- Preliminary test: “but for/ sine qua non/ necessity”
o Case on causation in a medical negligence context – failure to inform a patient of all the risks when undertaking surgery vitiates a defence against the ‘but for test’ being established
o Facts
o Miss Chester was referred to Dr Afshar, a neurological expert, about some lower back pain. He told her that surgery was a solution. The doctor did not inform her of the 1-2% risk of these operations going wrong. She suffered a complication, called ‘cauda equine 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. In the CA the majority upheld the conclusion of the judge.
o Held
o In the HL
o The majority held the ‘but for’ test was satisfied. Although the risk of the operation going wrong would not have been changed had Miss Chester been warned. It was the duty of the doctor to warn her as a principle of medical practice, adults should consent on a fully informed basis to surgery aware of all risks. Dr Afshar had therefore violated her right to choose.
o Lord Steyn emphasised his view by quoting Ronald Dworkin.
o He argued that full information ‘‘also ensure that due respect is given to the autonomy and dignity of each patient. Professor Ronald Dworkin (Life’s Dominion: An argument about Abortion and Euthanasia, 1993) explained these concepts at p 224: ‘The most plausible [account] emphasises the integrity rather than the welfare of the choosing agent; the value of autonomy, on this view, derives from the capacity it protects: the capacity to express one’s own character – values, commitments, convictions, and critical as well as experimental interests – in the life one leads. Recognizing an individual right of autonomy makes self-creation possible. It allows each of us to be responsible for shaping our lives according to our own coherent or incoherent – but, in any case distinctive – personality. It allows us to lead out lives rather than be led along them, so that each of us can be, to the extent a scheme of rights can make this possible, what we have made of ourselves. We allow someone to choose death over radical amputation or a blood transfusion, if that is his informed wish, because we acknowledge his right to a life structured by his own values.’’
o Lord Walker said:
o ‘I agree with Lord Steyn and Lord Hope that such a claimant ought not to be without a remedy, even if it involves some extension of existing principle, as in Fairchild v Glenhaven Funeral Services…Otherwise the surgeon’s important duty would in many cases be drained of its content.’
o Dissent
o Lord Bingham
o He felt that the risk was inherent in surgery, no matter who performed it.
o ‘It is now, I think, generally accepted that the ‘but for’ test does not provide a comprehensive or exclusive test of causation in the law of tort. Sometimes, if rarely, it yields too restrictive an answer, as in Fairchild v Glenhaven…’ if applied mechanically gives an expansive answer.
o He says that ‘but for’ is not satisfied ‘Miss Chester has not established that but for the failure to warn she would not have undergone surgery…as [it] liable to occur whenever the surgery was performed and whoever performed it’ not simply consenting to surgery in that precise day and time as she claimed.
o Lord Hoffmann
o ‘…the failure to warn has not caused the damage. It would have happened anyway.’
o He found that the risk would have been precisely the same whether it was done then or later or by that competent surgeon or by another.
Hotson v E Berkshire AHA (HL) 1987 2 All ER 909
- Problem cases challenging the orthodox but-for approach:
(a) Loss of Chance – impossibility of proof?
o Case about the nature of causation
o It rejects the idea that people can sue doctors for the loss of chance to get better, when doctors fail to do as good a job as they could have done
o Facts
o A boy fell out of a tree. He went to hospital where his hip was examined, but an incorrect diagnosis was made. After 5 days it was found that he was suffering from avascular necrosis. This was more advanced and serious than if it had been spotted straight away, he was then treated accordingly. By the age of 20 years, there was deformity of the hip joint, restricted mobility and permanent disability. The judge found that even if the diagnosis had been made correctly, there was still a 75% risk of the plaintiff’s disability developing, but the medical staff’s breach of duty had turned that risk into a 25% chance of a good recovery. Damages included an amount of £11,500 representing 25% of the full value of the damages awardable for the plaintiff’s disability
o Held
o On appeal to the Lords the question was whether the cause of the injury was the fall or the health authority’s negligence in delaying treatment. Since the fall had caused the injury the negligence of the authority was irrelevant in regard to the plaintiff’s disability.
o The judge had held that on the balance of probabilities, even correct diagnosis and treatment would not have prevented the disability from occurring, it followed that the plaintiff failed on the issue of causation. It was therefore irrelevant to consider the question of damages.
o The traditional ‘all or nothing’ approach was restored
o It is more likely that the courts will not entertain any attempt to argue for proportionate damages where the injury is indivisible. There is a link between loss of chance cases and material contribution cases
Allied Maples Gp Ltd v Simmons & Simmons (CA) 1995 4 All ER 907; 1995 1 WLR 1602
- Problem cases challenging the orthodox but-for approach:
(a) Loss of Chance – impossibility of proof?
o The solicitors (defendants) were acting for the claimant in a takeover of the Gillow group of companies. The defendants failed to warn the claimant of potential liability that may arise under the transaction
o Once the transaction had been completed the risk of liability became a reality leaving the claimant liable to pay substantial sums
o The claimant sought to recover some of this from the defendant arguing that if they had been advised correctly there was a chance that they would have been able to negotiate out of the liability
o Point of analysis – this is similar to the principle of consent with awareness of risks attached to surgery Chester v Afshar
o Held
o The claimant was entitled to recover a sum to reflect their loss of chance of negotiating out of the liability.
Where the result depends on what a third party would have done in a hypothetical situation, the claimant only has to demonstrate, that there was a more speculative (where there is a high risk of loss) chance rather than on the balance of probabilities. The assessment of the chance will be reflected in the damages
Gregg v Scott (HL) 2005 UKHL 2
- Problem cases challenging the orthodox but-for approach:
(a) Loss of Chance – impossibility of proof?
o Case on the issue of loss of a chance, in causation. It affirms the principle of Hotson v East Bershire Area Health Authority on a narrow margin.
o Lord Nicholl’s dissent is of particular note, in arguing that loss of a chance should be actionable
o Facts
o The defendant, Dr Scott, misdiagnosed negligently the plaintiff’s malignant cancer, stating it to be bening. This had the effect of delaying Mr Gregg’s treatment by nine months, reducing his chances of surviving ten years from 42% to 25%.
o Survival was never a probability
o Held
o Claim dismissed
o On appeal to the HL, the majority upheld the earlier decision of Hotson, though Lord Nicholls joined by Lord Hope dissented in arguing that loss of a chance should be actionable
o Lord Nicholls
o [3] ‘The loss of a 45% prospect of recovery is just as much 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.
o Lord Hope joined Lord Nicholls with a different reasoning
o He considered that the claim would have had a straightforward claim for the pain, suffering and other immediate consequences of the spread of the tumor
o ‘In the event of a breach of…duty the law must fashion a matching and meaningful remedy. A patient should have an appropriate remedy when he loses the very thing it was the doctor’s duty to protect. To this end the law should recognise the existence and loss of poor and indifferent prospects as well as those more favourable.’
o Point of analysis – this is a very unfair outcome with regard to balancing it on probabilities
Baker v Willoughby 1970 AC 467
(a) Multiple Sufficient Causes
o The case is concerned with breaking the chain of causation
o Facts
o Mr Baker the plaintiff was knocked down by the defendant’s car leaving him with a stiff ankle of his left leg and reduced mobility and income. After the accident but before the trial, a robber shot Mr Baker in his injured leg and the leg had to be amputated.
o The defendant argued that the injuries he had caused to Mr Baker were obviated by the later accident. His argument was based on causation: the shooting was an intervening event which was not caused by his negligent driving and the amputation of the man’s leg meant that the defendant could not be held accountable for any loss, since the damage he had done previously no longer existed.
o The distinct damages are called consecutive torts
o Held
o The HL rejected the argument.
o Lord Pearson held that although the argument made sense, it would produce a ‘manifest injustice’ if it were allowed to succeed. Lord Reid considered that the damage caused by the defendant, the plaintiff’s inability to run, his reduced working capacities etc were not obviated (avoid or prevent) by the shooter’s act. Furthermore, if the shooter were to be found and were to be held liable, he would only have to pay the losses he caused Mr Baker by the shooting, not by the earlier car accident (because of the rule that the defendant must take the plaintiff as he finds him). Consequently, Mr Baker would remain undercompensated but he would still receive compensation from the car accident.
Jobling v Associated Dairies 1981 3 WLR 155
(a) Multiple Sufficient Causes
o Mr Jobling slipped on the floor at his place of work due to his employer’s negligence. He injured his back which caused him to reduce his earning capacity to 50% of what it was. He then developed an independent back condition which was unrelated to the injury which left him unable to work.
o The trial judge applied Baker v Willoughby and held that the claimant was entitled to recover damages beyond the onset to the back condition. The employer appealed.
o Held
o The HL distinguished Baker v Willoughby and stated that where the victim is overtaken before trial by a wholly unconnected and disabling illness, the decision had not application.
o The HL were critical of the decision in Baker v Willoughby but stopped short of overruling it
o The HL held that the disease had to be taken into account when awarding damages. The award lost earnings must be reduced if there is a known risk of future incapacity independent of the tort, to avoid compensating for injuries that are not caused by a torT
i) In constrast to Baker why should a second tort be different from a supervening illness? The conflict between the two cases is considered in Gray
o Point of analysis – in Jobling (the slipping and the back condition were independent factors) the claimant would have developed the independent back condition regardless of the injury suffered at work. The causation chain is broken. Whereas in Baker v W the car accident and the shooting were also independent events, but the shooting was not a sufficiently strong break in the chain of causation. Both accidents amounted to compensation. Here only the first accident would have amounted to compensation had not the second independent back condition developed.
Gray v Thames Trains [2009] UKHL 33
(a) Multiple Sufficient Causes
o Facts
o A person who, as a result of a railway accident, suffered post-traumatic stress disorder which led him to stab a man to death, could not, as part of his claim for damages in negligence against the train operators responsible for the accident, recover damages for loss or earnings following his detention after the killing in prison, and subsequently in hospital under ss37 and 41 of the Mental Health Act 1983.
o Held
o The HL in allowing an appeal by the defendants, Thames Trains Ltd and Network Rail Infrastructure Ltd from the order of the CA – a conviction for manslaughter precluded (prevent from happening) a claim for loss of earnings during his detention by reason by reason of the public policy expressed in the doctrine of ‘ex turpi causa non oritur actio’
o Lord Hoffmann – said that the ‘ex turpi causa maxim’ expressed not so much a principle as a policy. It could be stated in a wider or a narrower form.
o The wider version is that you cannot recover for damage which was the consequence of your own criminal act.
o The narrower version precluded the claim for loss of earnings after the claimant had been sentenced for the manslaughter. o Lord Rodger of Earlsferry
o He doubt the correctness of Baker and concluded that Baker could not apply to the present case in any event because, of the claimant’s criminal act
o Civil courts had to proceed on the basis that even though the claimant’s responsibility for the killing had been diminished by his stress disorder, he nevertheless had known what he was doing and was responsible for what he did.
