Causation Flashcards
What is causation sometimes referred to as?
The nexus between breach and damage
What 2 points must be considered as part of causation?
1) Factual causation
2) Legal causation
When broken down, arguably there are 3 elements to causation rather than 2, what are these?
1) Factual causation - but for test
2) Factual causation - when but for test can’t be satisfied
3) Legal causation
Two important cases for the ‘but for’ test
Barnett v Chelsea and Kensington Hospital [1969]
Wilsher v Essex AHA [1988]
Failed in both
To what extent does the but for test need to be proved?
On the balance of probabilities - so more than 50%
Why did the but for test fail in Barnett?
C would have died anyway, even if the doctor had examined him on time. The harm was not caused but for the doctors error
Why did the but for test fail in Wilsher?
The evidence suggested that these factors did not operate together to cause the blindness: one factor was solely responsible for the loss.
How was Wilsher reconciled?
Because there were 5 equal possible causes of the blindness, there was only a 20% chance it was the negligence that caused it. Failed on balance of probabilities
Where will a court find factual causation even if the but for test cannot be satisfied?
1) Cumulative cases
2) Material increase in risk test
3) Apportionment
What is meant by cumulative cases?
When tortious and non-tortious factors have operated together to cause the harm, and it is impossible to distinguish which was responsible
To what extent must something be to be part of a cumulative cause?
More than negligable
Which case defined the need for it to be a more than negligible contribution to result in a cumulative cause and satisfy factual causation?
Bonnington Castings v Wardlaw [1956]
- Dust that was a part of work
- Tortious dust
- Operated together to create damage
Which case shows the material contribution test in a clinical negligence context?
Bailey v MoD [2008]
Why does Bailey v MoD [2008] show material contribution?
Both causes worked together (cumulatively) to cause her weakness. The medical experts were unable to say whether the negligent treatment was on the balance of probabilities the cause of the claimant’s brain damage – they could not say whether or not (had there been no negligence), she would still have been so weak that she could not clear her lungs.
What was the name of the judge who summarised the position on cumulative cases?
Lord Justice Waller
What did Lord Justice Waller say the position is on cumulative cases?
In a case where medical science cannot establish the probability that ‘but for’ an act of negligence the injury would not have happened but can establish that the contribution of the negligent cause was more than negligible, the ‘but for’ test is modified, and will succeed
Which case followed Bailey v MoD [2008]?
Dr Sido John [2016]
How did Dr Sido John [2016] confirm how the material contribution test applies?
It is a sequential test AS WELL AS a simultaneous test (as in Bailey v MoD)
Case for increase in risk test?
McGhee v National Coal Board [1973]
- Didn’t provide facilities to wash hands of brick dust, meaning it stayed on hands longer
Why is increase in risk different from material contribution?
When it cannot be proved that it which incident caused the damage it is increasing the risk by every exposure to the risk BUT if it’s just a case that it could’ve been a tortious act or a non tortious act that both contributed to the damage that is material contribution
What standard must increase in risk be?
More than di minimus
What is the key case around material increase of risk and asbestos?
Fairchild v Glenhaven Funeral Services Ltd [2003]
What did Lord Bingham say in Fairchild v Glenhaven Funeral Services Ltd [2003] ?
‘Not concern the general validity and applicability of [the ‘but for’ test for factual causation] which is not in question, but is whether in special circumstances such as those in these cases there should be any variation or relaxation of it”.
What are the limits to the material increase in risk test?
The Law Lords stressed that Fairchild would only apply in exceptional cases. However, the exact scope of the McGhee/Fairchild principle remains to be seen.
Seems to be confined to asbestos related cases for now
