CAUSATION Flashcards
Cases
ROTHWELL v CHEMICAL AND INSULATION CO LTD. (***)
FACTS: Pleural plaques diagnosis. Afraid they will get worse disease due to this. Non actionable.
POL: NEEDS TO BE ACTIONABLE DAMAGE. “Incomplete without proof of damage… does not mean simply a physical change.”
1) WORSE OFF, 2) COMPENSATION APPROPRIATE.
DAMAGES (ASBESTOS- RELATED CONDITIONS) (S) ACT 2009 S1
PLEURAL PLAQUES NOW ACTIONABLE.
BARNETT v CHELSEA AND KENSINGTION HOSPITAL MANAGEMENT (*)
FACTS: Ill guys. Doctor cannot be bothered getting up so sends a nurse. Says just drunk. Turns out poisoned and die. Not liable as when they got to hospital it was already too late. Would have died anyway just would have known about it earlier.
POL: It remains to consider whether it is shown that the deceased’s death was caused by that negligence or whether as the defendants have said, the deceased must have died in any event.”
BOLITHIO v CITY AND HACKNEY AREA AH (*)
FACTS: Doctor in breach of duty of care by failing to attend to her patient, a child. Child dies. Only way to save was intubation. Evidence that responsible medical body would not have intubated. Therefore it did attend and did not intubate then not negligent. Therefore not a factual cause of death.
POL: … where the breach the duty consists of an omission (…) the question is what would have happened if an event which by definition did not occur had occurred.” LORD BROWNE- WILKINSON.
WARDLAW v BONNINGTON CASTINGS LTD (***)
FACTS: Employee contracted lung disease from silicon dust (nature of disease important). ALSO NOTE THE QUINN CASE- No practical precautions. For most of the dust there was no breach. However, was in the case of some of it as statutory breach for poor machine installation. Both mix meaning guilty and not guilty. BUT FOR= No. New requirement. MATERIAL CONTRIBUTION AS MORE DUST= MORE ILL.
POL: “It appears to me that the source of his disease was the dust from both sources, and the real question is whether the dust from the swing grinders materially contributed to the disease… question of degree.” LORD REID.
TEST= “the breach of duty caused or materially contributed to his injury.”
CURRENT STANDARD IN UK= “ must in all cases prove his case by ordinary standard of proof he must make it appear at least that on a BALANCE OF PROBABILITIES the breach of duty caused or materially contributed to his injury.” LORD REID.
MCGHEE v NCB (***)
FACTS- Coal business- breaks keels and cleans before next load. Comes out, covered in dust and washes skin. Goes to other location (BY ORDER) with no cleaning facilities. Covered in dust as he cycles home to clean. Dermatitis. No breach of duty when exposed during but later exposure is. Here, later exposure does not make worse. Need time of start. Likely while working. Forensic experts said “materially increased the risk.” Decided liable. Not clear on application.
POL: “From a broad and practical viewpoint I can see no substantial difference between saying that what the defender did materially increase the risk of injury to the pursuer and saying that what the defender did made a material contribution to his injury.” LORD REID.
Barker v Corus UK LTD (***)
FACTS: Worked for several employers. One bankrupt. Also self-employed for period. When talking about Fairchild exception=non-tortious exposure does not matter. Only look at employers if can prove breach.
POL: “The radical steps which this House took in McGhee (…) was accordingly to hold that, IN PARTICULAR CIRCUMSTANCES.” LORD RODGER. ESSENTIALLY, need good reason to not use but for test.
“It is impossible to show on the balance of probabilities that some other exposure to the same risk may not have caused it instead… irrelevant whether the other exposure was tortious or non-tortious.” LORD HOFFMANN
“Liability should be divided according to probability”
Wilsher v Essex Area Health Authority
FACTS: Created McGhee misunderstanding. All discounted except one part. Prematurely born baby, complex health challenges. Need help to breath. Oxygen normally. Increase oxygen=increased blood pressure. Can burst blood vessels in eye so need to monitor. Blinds child. Many reasons. SINGLE NOXIOUS AGENT IS REQUIRED.
POL: “(MCGHEE)…laid down no new principle of law whatsoever. On the contrary it affirmed the principle that the onus of proving causation lies on the pursuer or plaintiff.” LORD BRIDGE
FAIRCHILD v GLENHAVEN FUNERAL SERVICES. (***)
FACTS: Asbestos which is dangerous is widely used. From this, many suffered from diseases like Mesothelioma (lung cancer). Breach. Worked for more than one employer, each of which exposed. One single fibre is enough to trigger. It can also remain dormant for years. Therefore, presence of an attribution problems. According to But for=not guilty.
POL: EXCEPTIONAL CAUSATION= Fair, just and reasonable. Need good reason to depart from but for.
PARAMETERS FOR EXCEPTION: 1) duty specifically intended to protect employees. 2) civil right to compensate injury (Delictual liability) 3) increase exposure= increased risk 4) medical science cannot say whose conduct 5) employee contracted disease 6) struggle to connect due to evidential gap. - LORD HOFFMANN
COMPENSATION ACT 2006 S3(1)
Current law for mesothelioma cases.
(2) the responsible person shall be liable… (a) in respect of the whole of the damage. (b) jointly and severally with any other responsible person.
SIENKIEWICZ v GRIEF (UK) LTD (*)
FACTS: Worked in factory where they handled asbestos. In office so minimal exposure. FORENSICS= more likely environmental, less than 20% chance of factory. Balance of probabilities. However note that in Barker it was stated that non-tortious exposure does not matter so discounted. Therefore balance of probabilities is essentially thrown out.
THE OROPESA (*)
FACTS: 2 ships collide. Both damaged, one worse. Crew rescued. Captain believes can salvage so send back. A few die. Captain or collision? Harm still due to the collision. Need something which changes the outcome.
POL: “Human action does not per se sever the connected sequence of acts.” LORD WRIGHT.
“Not whether there was new negligence, but whether there was a new cause.” LORD WRIGHT.
SAYERS v HARLOW URBAN DISTRICT COUNCIL (*)
FACTS: Woman waiting for bus. Goes to toilet, faulty lock and trapped. Shouts/tries to get help. Attempts to escape by climbing on toilet roll. Slips, falls and injures self. Clearly big contribution but negligence of poor maintenance. Natural, reasonable reaction
POL: “the damage did not flow from attempting to do something which she could not do, and had no business trying to do.” LORD EVERSHED.
MCKEW v HOLLAND AND HANNEN AND CUBBITS (SCOTLAND) LTD (*)
FACTS: Weakened leg, prone to falling. Wife and him go to view property to rent. Going downstairs there is no rail and he panics that he wouldn’t make it so jumped last steps. NOVUS ACTUS= should have relied on the help of his wife etc. Caused by conduct.
POL= “Reasonable human conduct is part of the ordinary course of things.”- LORD GUEST.
SABRI-TABRIZI v LOTHIAN HEALTH BOARD (*)
FACTS: Surgery for sterilisation done negligently and not sterilised. Pregnant then abortion. Gets pregnant again which comes with health issues. Still did not take extra precautions. Conduct unreasonable so novus.
