Causation Flashcards
Burden of proof for causation
On a balance of probabilities, the defendant’s fault caused the damage
Tests for factual causation
a) But for test
b) Material contribution to injury
c) Material contribution to risk
d) Loss of a chance
e) Disclosure of risk (medical negligence)
When to use But for test
Always start with this test
“But for” the breach of duty, would the claimant have suffered damage? (Barnett v Chelsea and Kensington Hospital Management Committee)
Problem with the but for test
Converts mere likelihood into a certainty, and provides full compensation (even if just 51%)
(Hotson v East Berks AHA)
When to use Material contribution to injury test
To be used where there are multiple simultaneous causes of the damage (industrial and medical contexts)
Industrial context for material contribution to injury test
Bonnington Castings v Wardlaw (constriction of lungs due to build up of silica dust)
Holtby Brigham & Cowan (Hull) Ltd (absestosis caused by exposure, worked for other employers too) (employers liable jointly and severally)
Medical context for material contribution to injury test
Bailey v Ministry of Defence (post-operation care, pancreatitis)
Williams v Bermuda Hospitals Board (appendix removal, slow, sepsis infection)
When to use Material contribution to risk test
Use when it can only be shown that the defendant’s negligence made it more likely for the claimant to suffer the damage
ONE POTENTIAL CAUSAL AGENT ONLY!
Material contribution to risk test for one potential causal agent
McGhee v National Coal Board (coal kilns)
Can be used for multiple potential causal agents?
No (Wilser v Essex AHA) (baby went blind, retrolental fibroplasia causing blindness)
Exception: where the uncertainty is due to medical science (Fairchild v Glenhaven Funeral Services Ltd)
Extent of liability for material contribution to risk
Liability only to the extent of the risk caused by the defendant
(Barker v Corus UK Ltd) (self-employed partly)
Legislative response to Barker v Corus
S.3 of Compensation Act 2006 for mesothelioma: responsible person liable for whole damage, regardless of whether victim was exposed to asbestos in other circumstances, and whether or not there are other responsible persons
Liability for damages
Where the disease is indivisible, full liability
Where the disease is divisible, liability for responsible share only
(Bonnington Castings v Wardlaw)
Basic rule for Loss of a chance test
Basic rule: no claim (Hotson v East Berkshire AHA)
After Fairchild: no claim still (Gregg v Scott)
Claim cannot be made for loss of a statistical chance, only actual damage suffered
Disclosure of risk to patient test
Modified causation test based on patient’s right to be informed about the treatment (Chester v Afshar)
