Causation Flashcards
What is factual causation?
The defendant is factually responsible for Cs harm This is a matter of evidence/ science
What is legal causation?
The deferent should be held legally responsible for Cs harm This is a matter of policy or judgement
Who is the burden of proof on in factual causation?
On CThe balance of probabilities-more probable than not that D caused their injuries
How do we establish factual causation?
In simple cases = the but for test
Barnett v Chelsea and Kensington hospital management committee
The but for test in operation B had persistent vomiting after drinking teaWent to hospital where doctor refused to examine himB later died of arsenic poisoningHospital was negligent but liableBUT FOR THE DOCTOR NOT EXAMINING HIM HE STILL WOULD HAVE DIED
Wilsher v Essex area health authority
But for test in practice W born prematurelyDoctor negligently gave too much oxygen during post natal careW suffered eye condition which led to blindness Excessive oxygen is the known causeHOSPITAL NOT LIABLEDoctors negligence was only 1/5 potential causes But for negligence he may still have gone blind
Hotson
But for test- loss of opportunity H (13) fell form tree and injured hipHospital negligently failed to diagnose conditionHis hip became permanently deformed and suffered permanent disability Fall most likely caused damage75% chance would have had permanent disability even if diagnosedWas awarded 25% of the damages Couldn’t show the balance of probabilities
Gregg v Scott
But for- loss of chanceThe majority of HoL rejected loss of chance claims in personal injury
Exception to the but for test
Cumulative diseases Indeterminate cause in employment context Multiple sufficient causes (only sometimes)
What is causation?
Once C has proved that D was negligent (ie. Breached his duty of care) then he must prove that this breach CAUSED the injury Legal and factual causation
About cumulative diseases
Gradual accumulation of toxins Can be difficult to prove factual causation Usually arises in an employment context
What is guilty exposure is the sole cause of cumulative disease?
The employer is liable but for his negligence C would not have suffered the disease
What if innocent exposure is the sole cause of the cumulative disease?
No claimThe employer is not at fault in exposing the worker
What if there is both innocent and guilty exposure? More likely
You are unable to prove the guilty toxins are the ones that caused the disease The innocent toxins may have been the one that caused it On a strict application of the but for test the claimant would fail
Bennington castings
B exposed to silicon dust at work Some dust was innocentSome dust was guilty as there was a higher level of dust at his work then there should have been Got a lung condition HoL made an exception to the but for testWas enough for b to show them that D had MATERIALLY CONTRIBUTED to the harm However the damages the D is liable to pay in such cases may be reduced
Holtby v Brigham and Cowan
H negligently exposed to asbestos by a number of employees over the years and contracted a cumulative diseaseCA: H only entitled to recover damages proportionate to the negligence of the defendant
About an indeterminate cause in employment context
Sometimes it may not be medically or scientifically possible for C to prove that Ds negligence is the factual cause of his injury The boundaries of this exception are unclear but very limited
McGhee
MG suffered dermatitis as a result of exposure to brick dust at work When at work this exposure was innocentThe dust was guilty after work The employer should have provided washing facilities to remove the brick dust from his skin It was unclear how the brick dust caused the dermatitis- may have been caused by the accumulation of brick dust or a single abrasion If it was a single abrasion then it was impossible to prove it was when the dust was guilty On strict application of but for he would have failedIt was enough for MG to prove that the guilty dust materially increased his risk of harm
LJ wilberforce in McGhee
The answer as a matter of policy of justice should be that it is the creator of the risk who must be taken to have foreseen the possibility of damage, who should bear its consequences
Timeline for McGhee cases
McGhee But for test then asserted in wilsher McGhee was authority for something new- the but for test stands
Fairchild
F was exposed to asbestos by several employers over his lifetimeNot sure how asbestos causes the disease he has (but we know it does)May be cumulative or just one guilty particleCouldn’t show on a balance of probabilities which employer had caused the diseaseCA said he should have no claim because he couldn’t prove who did itHoL said it was enough to show that his employers MATERIALLY CONTRIBUTED his risk of harm
Why did the HoL relax the but for test so much in Fairchild?
Asbestos can sit idle for 40+ yearsGuilty employers may have closed down or gone into liquidation by now Since 1960s it’s been compulsory for employers to carry insurance
Barker v corus
B exposed to asbestos by 2 employers (one solvent, one insolvent)He also exposed himself during a period of self employment He got mesothelioma He sued the solvent employer Couldn’t prove on the balance of probabilities that it was the solvent employer Should the Fairchild exception apply? If so, should the solvent employer pay damages in full or only proportionate damages?Held: solvent employer only to pay proportionate damages and the damages to be reduced by 20% to reflect self employment
