Causation Flashcards
What is loss of a chance?
“Loss of a chance is concerned with a person losing a chance of something that might have happened, but for the defendant’s negligence.”
Note that loss of a chance claims are generally not accepted in common law jurisdictions OTHER THAN IRELAND. In class we reviewed cases from across the Commonwealth (other than Ireland) that showed loss of chance cases are not successful. Civil law courts on the Continent do allow for loss of a chance.
In loss of a chance cases we’re asking not whether A caused the harm B experienced, but whether A deprived B of the opportunity/chance of a better outcome. Plaintiff doesn’t have to prove they ACTUALLY would have had a better outcome.
Generally found in solicitor’s negligence claims (loss of economic chance) and medical negligence claims.
What are the two types of loss of a chance claims?
- Physical injury has eventuated
- No physical injury has occurred.
The plaintiff was an infant who was standing too close to the fire in her grandparents sitting room. Her coat caught fire (which was unguarded) while her grandfather had left the room to get his coat to bring her for a walk.
The plaintiff sued her grandfather and Dunnes Stores, who had sold the coat. The grandfather was found liable in negligence as he was the occupier of the premises, and he was entrusted with the care of the infant.
In relation to Dunnes, the judge found that they were negligent for failing to affix a warning label to the coat that it should be kept away from fire…
But, in a clear example of the legal cause limb coming into effect, the judge held that this failure to affix a warning label was not a legal cause of the injury. The judge believed that the grandmother, who purchased the coat, would not have considered the coat inappropriate even if that warning label was attached.
And even if it was attached, the judge held that it would not have made any difference to the series of events on the day. The judge noted that the child’s other clothing had warning labels about being kept away from fire, and those labels made no difference to the grandparents actions. So the grandfather was liable in negligence, but Dunnes Stores was not.
Duffy v Rooney and Dunnes Stores [1997] (British)
Novus actus interveniens case
Owner of a car left it parked at the side of the road unlocked and with the key in ignition.
The car was stolen by a joyrider and was crashed into the Plaintiff causing injuries.
The court held that while it was reasonably foreseeable that the car would be stolen, it was not reasonably foreseeable that it would be driven carelesslessly
Breslin v Corcoran [2003] (Irish)
Employee who suffered an hernia injury at work. Trial court initially dismissed negligence claim because hernias result from a pre-existing weakness/vulnerability in the back. But Supreme Court applied eggshell skull rule in lieu of reasonable foreseeability - employer must take employees as it finds them and confirmed negligence. Note that eggshell skull rule is not applied much in practice.
Burke v John Paul & Co [1967] (Irish)
“Loss of a chance is concerned with a person losing a chance of something that might have happened, but for the defendant’s negligence.”
Note that loss of a chance claims are generally not accepted in common law jurisdictions OTHER THAN IRELAND. In class we reviewed cases from across the Commonwealth (other than Ireland) that showed loss of chance cases are not successful. Civil law courts on the Continent do allow for loss of a chance.
In loss of a chance cases we’re asking not whether A caused the harm B experienced, but whether A deprived B of the opportunity/chance of a better outcome. Plaintiff doesn’t have to prove they ACTUALLY would have had a better outcome.
Generally found in solicitor’s negligence claims (loss of economic chance) and medical negligence claims.
What is loss of a chance?
- Physical injury has eventuated
- No physical injury has occurred.
What are the two types of loss of a chance claims?
The plaintiff sued Bons Secours Hospital and his attending consultant urologist for a delayed diagnosis, and claimed damages in negligence.
Eight months had passed before Mr Philp’s prostate cancer was correctly diagnosed.
High Court and Supreme Court agreed with Phillip’s claim. Aggravated damages were awarded because doctor altered their notes to try and hide their negligence.
*Note this has not yet been accepted as precedent.
Philp v Ryan (2004) (Irish)
British loss of a chance precedent - If change of survival is less than 50%, then loss of a chance could not be claimed. Misdiagnosis of non-Hodgkins lymphoma.
Gregg v Scott
