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
Issues with barker
Concern you could be under compensatedLJ Roger disagreed with proportionate damages
Parliaments response to barker
S3 compensation act 2006 Where conditions for applying Fairchild are met, employer will be liable for the whole sum of damages through a reduction for claimants own negligence should still be possible
Sienkiewicz
C exposed to asbestos by two sources (work and environmental)Suffered mesothelioma as a resultEmployer argued that where there was only one employer the but for test should apply Supreme Court rejected this and applied Fairchild Suggested that Fairchild apply ONLY to mesothelioma Employer materially increased the risk of harm
BAE
LJ Mance In the context of mesothelioma claim the law accepts a weak or broad causal link
About multiple sufficient causes
What happens when the D is negligent and causes an injury but, before the trial, a supervening event occurs which obliterates the effect of the first injury Should the D continue to be liable for the first injury after the supervening event?
Baker v willoughby
B suffered injury to leg as a result of car accident negligently caused by w Suffered pain and stiffness in leg and so had to find new employmentBefore the case was held B was held up at the scrap yard and shot in the leg His leg was amputated as a result of the shooting So the cause of the claim was gone CA only awarded compensation up to the point in time where the leg was shot HoL held that they had to keep paying damages even after the leg was gone otherwise there would be a gap in damages
Jobling v associated diaries
A different approach was taken in terms of multiple sufficient causes J suffered back injury at workBefore trial he got an unrelated back injury that rendered him incapable of workHoL refused to follow bakerOnly had to compensate him up until the point of the disease
Difference between jobling and baker
The but for test was applied in J not in B But it is difficult to see why they were treated so differently
What is legal causation used for?
To expand or restrict liability
What are the two issues in legal causation?
- Should the defendant be held responsible for the kind of harm the claimant has suffered 2. If the D has triggered a chain of events, where should the liability end? Will an intervening act break the chain of causation?
Remoteness
Encapsulates both the questions of legal causation
Re polemis
The old test for remoteness D liable for all the direct consequences of his actions
Wagon mound no. 1
Seems unfair (under the old test for remoteness) that so,done should be held liable for everything, regardless of how remoteThis bore the NEW REMOTENESS TEST
The new remoteness test under wagon mound no. 1
D will only be liable if the kind of harm suffered by C is reasonably foreseeable
Facts of wagon mound no. 1
D responsible for a ship that had been loading in Sydney harbour Due to negligence of one of the crew, furnace oil leaked into water and formed a thin layer over surfaceThe oil spread to a neighbouring wharf owned by CWelders working in the wharf were repairing another shipSome days later sparks ignited the water and caused serious damage to the wharf and ships D not liable as damage by the oil was foreseeable but damage by fire was not
Hughes v Lord advocate
Man hole in street left Open by post office employeesOn finishing work, employees covered hole with a canvas tent and surrounded this with paraffin Lamps to alert the public to the dangerH (8) picked up one of the lamps and took it into the tent While playing he knocked one of the lamps into the hole and caused an explosion He fell into the manhole and was badly burntD argued that this was not reasonably foreseeable HoL held D liableIt was reasonable foreseeable, the type of harm that would be suffered BURNSThe courts took a generous approach
Doughty
Doughty was a factory worker Suffered burns when asbestos lid fell into hot vat of liquid This created a chemical reaction which cause an eruption Chemical reaction itself was not reasonably foreseeable and and eruption of boiling liquid was different to being splashed by it More restrictive approach than Hughes
Termain
T worked on a farm D allowed farm to become infected with ratsT contracted weils disease from rat urine Because it was rare it was held that the disease was not reasonably foreseeable (Restrictive approach)
Page v smith
P involved in road accident caused by s The accident cause physical damage to cars but not the drivers3 hours after the accident P felt tired and took to bedHe was later diagnosed with chronic fatigue syndrome HoL held: did not matter that psychiatric harm was not foreseeable, provided that some personal injury was reasonably foreseeable
Jolley v Sutton
J was one of two boys who decided to repair an abandoned boat left on the councils propertyThey jacked up the boat to repair the bottom The boat toppled and fell on JParaplegic as a result HoL council held liableIt was reasonably foreseeable that children would meddle with the boat at risk of some physical injury and this was sufficient
Lunney and oliphant academics on reasonably foreseeable injury
The current trend is to define the kind of harm widely… But this is not set
Smith v leech Brain
An EXCEPTION to wagon mound no.1S burnt on lip due to Ds negligenceS had pre cancerous skin condition which became cancerous when he got burnt and he diedThis was unforeseeable but D was held liable EGG SHELL SKULL RULE
Lagden v o’Connor
If C suffers heightened economic loss as a result of pre- existing financial difficulties, D will be liable for the full extent of the loss
Types of intervening act
Deliberate act of third party or claimant Negligent act of third party or claimant
Does an intervening act automatically break the chain of causation?
No
Lamb v Camden London borough council
Loosened house in Camden The council negligently damaged the water main which, in turn, damaged Ls houseTennant moved out and L made preliminary arrangements to get house repairedINTERVENING ACT: squatters moved in and caused damage Held: Broke the chain of causation and council not liableJudges argued that a brake in the chain of causation was an instinctive thing
Rouse v squires
As a result of negligent driving D1 jackknifed a lorry across motorway Car behind collided with the lorryIA: D2, also driving negligently, collided with the eyes other vehicles and killed R who was assisting at the scene Widow settled claim against D2 and sought contribution from D1CA: chain of causation NOT broken D1 to contribute 1/4 of the damages D2 was the immediate cause of Rs death but his death would not have occurred but for the actions of D1
Knightly v jones
J negligently overturned his car at the exit of a tunnelPolice inspector took charge of the scene and forgot to close off the tunnel at its entranceHe ordered K to ride on his police motorcycle back down the tunnel to close off the entranceK struck by oncoming motoristChain of causation WAS BROKEN between J and K LJ Stephenson said too much went wrong to impose liability all on one person
Is negligent medical treatment likely to break the chain of causation?
No but it can Generally remains intact unless the doctor is grossly negligent
Webb v Barclays Bank
W had polio as a child which affected her mobilityFell at work and injured polio affected leg INTERVENING ACT: consultant advised amputationIt was found that the amputation had not been necessary Did not break the chain of causation
The oropesa
Two ships badly damaged in a collision, both to blame Captain of one ship ordered most of his crew into lifeboat and collected by other shipIA captain later ordered the rest of his crew into another lifeboat, but high sea capsized the lifeboat and 9 people died CA held no break in causation (this was not is thing completely separate to the event)
Reeves v metropolitan commissioner
Prisoner committed suicide in police custody Police knew prisoner had sundial tendencies Part of Ds duty of care to protect him NO BREAK in the chain of causation
Corr
Corr committed suicide 6 years after a workplace incident that almost decapitated him Left with mental and physical scarsIntervening act: committed suicideDid NOT break the chain of causation Not so unusual as to be reasonably foreseeable
McKew v Holland and others
As a result of Ds negligence, Ms leg would occasionally give way Went to view flatAt top of steep stairsLeg gave way as he was going downIA jumped down stairs to not fall but suffered injury Chain of causation BROKEN he acted unreasonably by putting himself in a situation where he had to jump
Langden v o’ Connor
The egg shell skull rule also applies to economic harms
Wireland
Neck braceRestricted ability to wear glasses Fell down stairs as a result Has a claim, no break in causation
