Causation-4 Flashcards
but for test…
cork v kirby maclean
• Was D’s negligent act or omission a necessary condition for the harm to occur?
o But for the defendant’s negligent action or omission, would the claimant have suffered loss?” –>i.e. would the claimant have suffered the loss in any event?
CORK V KIRBY MACLEAN 1952 -> Lord Denning:
• “If the damage would not have happened ‘but for’ a particular fault, then that fault is the cause of the damage; if it would have happened just the same, fault or no fault, the fault is not the cause of the damage.”
but for test case:
-barnett v chelsea and kensington management committee 1969
o Doctor failed to properly examine and diagnose a man at hospital.
o V suffered arsenic poisoning and died. D admitted negligence but did not cause death.
o Doctor should have helped but the doctor did not cause him the harm. He was beyond help when he arrived, there was a duty, there was a breach of that duty however there was no causation.
o D’s negligence must be a necessary cause of V’s death and as it was not, he could not be held liable. But for D’s actions, V still would have died regardless.
But for’ test
This is sometimes referred to as the ‘all or nothing test’ (you either prove it or do not).
Standard of proof: Balance of probabilities
All → Where the claimant succeeds in showing that it is probable (at least 51% likely) that the breach caused the loss. The percentage is considered through an experts opinions.
Nothing → If a claimant can only show less than 51% likelihood that the breach caused the loss.
HOTSON V EAST BERKSHIRE AHA 1987 -> claim is for all or nothing not a % of damages
- 13 year old injured and sustained a fracture on left hip.
- Doctors failed to diagnose him accurately and he was sent home.
- He was home for 5 days and still continued to suffer, went back to hospital and they diagnosed him accurately–> he had emergency surgery.
- After he had the operation, he was left with a degenerative condition which meant that ultimately he would be left with paralysis of his full left side.
- Medical evidence showed that ‘but for’ hospitals negligence in failing to treat a child’s injury correctly, he would have had a 75% of still suffering the disability.
- Trial judge award damages based on 25% of what would have been paid out if it had been proved D’s conduct caused the disability.
- HOL Held: C failed to establish on the balance of probabilities that D’s breach caused C’s disability. C is entitled to receive nothing.
problems with the but for test.
multiple potential causes
concurrent causes–>indeterminate and cumulative causes
what does concurrent causes mean
causes in question occur more or less simultaneously, as opposed to one after the other. It might equally be applied to certain cases in which the causes are at different times but their effects operate at the same time.
concurrent cause– what does indeterminate cause mean
more than one D, but there is only one “operative cause” of the claimants loss, It being unclear which of the D’s acts produced this cause.
concurrent cause–what does cumulative cause mean
more than one “operative cause” of the claimant’s loss, each produced by the act of a different defendant, but the problem is, these causes have combined inextricably to produce the same damage. E.G. where a claimant has two bullets in his leg, each fired by a different defendant, and as a result of this predicament has to have his leg amputated.
multiple potential causes
WILSHER V ESSEX AREA HEATH AUTHORITY 1988 ->
five competing causes of death
• Baby born prematurely so is at a risk of blindness from five competing causes e.g. on two occasions was given too much oxygen -> he developed a condition known as- RLF, leaving him blind in one eye and seriously impaired in the other.
• But for the doctor’s negligence, there is an 80% chance it would have happened in any event, therefore their breach did not cause the harm.
multiple potential causes
gregg v scott
- Gregg goes to doctor about a lump, doctor dismisses it. 9 months later goes back, diagnosed with a cancerous tumour.
- Had he of been diagnosed earlier he would have had a 42% chance of survival, that was reduced to 25% after 9 months.
- HOL 3:2 Rejected claim -> doctors negligence must have caused a greater than 50% chance of harm being suffered -> 42% fell short -> 58% at start meant he was ‘doomed from the start’.
- There is no compensation for a loss of chance. On the balance of probabilities, he would have suffered in any event.
unjust results
COOK V LEWIS [1952] 1 DLR 1 (CANADIAN CASE):
• involves two hunters negligently in the vicinity of where C is, claimant is struck by a single pellet -> could not be proved which hunter fire the bullet.
• ‘But for’ test would not hold either liable.
• Held: if neither could prove they were not liable -> both joint & severally liable- 50/50
HOL in Fairchild -> explicitly rejected this idea of reversing burden of proof!
unjust results
SINDELL V ABBOTT LABORATORIES 26 CAL 3D 588 (1980)
- involves claimant who got sick due to drug which is produced by numerous manufacturers.
- There is no way she can find out which manufacturer made her particular drug.
- Courts looked at manufacturers market-share and made them pay in proportion to how much they owned of the market.
- unfair to make them responsible to the full extent
cumulative cause
fitzgerald v lane
P was crossing a pelican crossing when the lights showed green for cars, but red for pedestrians–>hit by a car driven negligently by the first D.
The force of the collision threw him up on the bonnet and propelled him into the middle of the road–>then hit by a car driven negligently by the second D.
He suffered severe spinal injuries –>evidence could not establish whether his tetraplegia resulted from impact with the 1ST or 2nd .
Impossible to say whether the tetraplegia had only one (indeterminate) cause, or whether it was the result of the combined effect of being hit by both cars.
However, the plaintiff had himself been careless in crossing when the lights were against him.
HELD: all three parties involved had been negligent and that, since it was impossible to say that one of the parties was more or less to blame than the otherresponsibility should be borne equally by all three. Both D’s were held liable and the P was held contributorily negligent
