Causation Flashcards
Intro
Assuming DOC which has been breached -
Whether it was a cause in fact
Cause in law
Question of proximity between the cause and the damage
Cause in fact
But for
Darnley
Robinson, Barnett, Appleton
Multiple causes -
Indivisible
Multiple defendants tortious acts produce same harm - each is a cause
Briggs - may not be an essential condition, question Is whether it contributed in whole or part
Pryce, Kuwait - but for test can be over exclusionary, requires qualification because strict application would satisfy a causal link
Multiple causes - divisible
Several persons cause damage to the same plaintiff and it is practicable to divide up their respective contributions
Dingle - question of fact
Rahman v Arearose - rational basis for objective apportionment of causal responsibility
Arneill - if not, damage is indivisible each is a cause
Multiple causes - indivisible
Tortious + non tortious
Bonnington castings - pneumoconiosis - two sources, one tortious the other not - each liable, disease was cumulative must have been a combination of the two as to amount to a diagnosis
Could only escape liability if defendants conduct came within de minimis principle
Later applied in UK in Williams - each period of delay at hospital MATERIALLY CONTRIBUTED to the totality of the injury, therefore on the balance of probabilities, the delay made a material contribution to the risk
Privy council confirmed that Bonnington did not modify the but-for test, provided it could be said that the totality of two or more sources caused an injury, it did not matter that the amount of respective contributions could not be qualified. The plaintiff need only prove that a particular source is more than minimal and a cause in fact (ministry of defence)
Where tortious and non tortious causes combine to produce the same indivisible damage but each would have been sufficient to cause the damage without the other, both can be regarded a cause
Proof of a risk
Courts have been persuaded to develop risk doctrine
McGhee - leading case, dermatitis, materially contiributed to the injury
Wilsher - single agency rule
Fairchild - expanded it, several possible defendants. Mesotheiloma, several possible employers
-HOL: claimants were each employed at different times and for differing periods by more hah one employee. each employer had been under a duty to take care and each had breached duty, other causes of mesothelioma could be discounted, current state ofMedical evidence it couldn’t be established on balance of probabilities which employer caused the injury, greater injustice would be to deny a telemetry - all held liable
Stressed they laying down in relation to aetiology of mesothelioma other cases decided case by case
Proof of risk
Proportionate liability
Fairchild didn’t consider this, barker did - liability should be attributed according to the particular defendants relative degree of contribution to the risk
Liability normally joint and several but where it was exceptionally imposed because a person MIGHT have caused harm, fairness suggested it be divided according to probability that the person caused the harm
Uk - reversed by legislation
Zurich - applies to cases beyond the scope of the act
Hennaghan - cancer
In NZ - APPLY BARKER (proportionate liability). Her you are already imposing liability on a defendant who may not be liable so fair to do so.
A further control on the Fairchild principle could be one rejected In Skiewicz/Wilmore. A distinction between multiple possible causes and multiple possible defendants ought to be supported on the ground that a plaintiff must at least show on the balance of probabilities that his or her injury has been caused or contributed to as a result of a tort opposed to some other non-tortious agency. This is the view the SC in Canada took in Clements. McLaughlin J noted that the material contribution to risk cases typically involved a number of tort feasors who were all at fault and one or more had in fact caused the injury. However, because each could point the finger at the other it was impossible to show on the balance of probabilities that any one of them caused the injury. In these circumstances. Permitting the plaintiff to succeed on a material contribution to risk based met the underlying goal of negligence. Compensation was achieved. Fairness was satisfied.
Proof of risk
Source
Baker, McGhee - confirmed sources need not be tortious
UKSC conjoined appeals Sckiewicz and Willmore conformed this - asbestos exposure one tortious the other not, double the risk argument rejected by the court - SO LONG AS MEDICAL EVIDENCE WAS UNABLE TO ATTRIBUTE CAUSATION IN MESOTHELIOMA CASES, no place for ordinary rules of causation (balance of probabilities) in both cases, had materially increased the risk so claim should succeed
Risk of a loss
Decisions elsewhere
Proof of the creation of a risk may be except e as proof of Cause in Canada and US
- no decision applying Fairchild in Aus
NZ - considered this in Ambros - Glazebrook J doesn’t apply to cases covered by ACC, didn’t consider the common law position
Zurich + Heneghan confirm applies to causes not concerned with mesothelioma
Loss of a chance
Describes the probability of loss of a positive outcome
Courts redefine plaintiffs loss in this way in some circumstances - award damages not for an outcome but for loss of a benefit or better outcome
Plaintiff is required only to prove the defendant caused the loss chance, inquiry thereafter is into its value. Recovery does not depend on proving the chance was 51 per cent, it is whether it is real or substantial opposed to mere speculative possibility (Davies)
Loss of chance
Historical fact
No question as to loss of chance can arise where the question is one of historical fact. Analysis doesn’t apply to the question of whether past positive conduct has caused actual damage. This is decided on the balance of probabilities
- AG v Geothermal - confirmed this applies to cases involving property damage
Loss of chance
Hypothesis facts
Whether proof of an outcome on the balance of probabilities is required in relation to past hypothetical fact situations as where the plaintiff is exposed to danger which the defendant has not created and it is alleged the defendant negligently failed to prevent it causing harm to the plaintiff. This raises issues as to the liability for omissions as it involves an hypothesis of what WOULD have happened had the defendant acted, not a determination of what DID HAPPEN
Loss of a chance
Hypothesis facts - Hotson
Trial judge awarded damages at 25% of a plaintiffs disability after the defendant negligently failed to diagnosis a hip injury, as it was found there was a 25% of avoiding the injury had it been administered timely.
Rejected by HOL - held in determining what happened in the past courts should decide it on the balance of probabilities, was an all or nothing test. Here. The HoL held the claim had to fail as rhere was no way of knowing whether prompt treatment could have prevented the injury
Didn’t completely rule out the possibility of damages succeeding - Lord Bridge ‘some cases so shrouded in mystery that the court can only measure statistical chances’
Loss of a chance
Hypothesis facts
Gregg
Gregg V Scott - HOL again faced with issue when defendants failed to diagnosis a cancerous lump in plaintiff, resulting in a delay in treatment and a reduction from 42 per cent to 25 per cent in plaintiffs chance of a cure
Following Hotson, in a majority decision it was held the plaintiff could not show the outcome would have been different so the claim had to fail. Lord Hoffman - what we lack in knowledge, the law deals with through the concept of burden of proof
Dissenting - Lord Nicholas considered that where there is considerable uncertainty in a plaintiffs condition it would be manifestly unsatisfactory to take an all or nothing balance of probabilities approach for it treats a plaintiffs prospects of recovery as non-existent whenever they fall short of 50 per cent. Here, plaintiff suffered a significant dimuation in chances of recovery which law should recognise
Loss of chance
- Hotson and Gregg
Hotson, Gregg and other decisions decline to apply a chance analysis to negligent omissions where the plaintiff complains of a failure to prevent physical injury
Most decisions in NZ, UK and Aus in which damages have been awarded or accepted involve HYPOTHETICAL QUESTIONS AS TO THE CHANCE OF OBTAINING FUTURE BENEFITS OR BETTER FINANCIAL OUTCOMES
Chaplin - beauty contest
Spring - employment
Benton - share In matrimonial home
Accordingly, there are two different ways for treating cases that involve Hypothesising about what would have happened - those involving hypothetical physical injury or damage, plaintiff would need to adduce proof on the balance of probabilities that he/she could have avoided the adverse physical outcome and those involving hypothetical financial damage - plaintiff need only prove that he/she lost a substantial chance of obtaining a benefit
