Causation and Remoteness of Damage

Question 1

The But for test?

Answer 1

Factual causation is established by applying the ‘but for’ test. This asks, ‘but for the actions of the defendant, would the result have occurred?’ If yes, the result would have occurred in any event, the defendant is not liable

Question 2

What did the Case of Barnett v Chelsea and Kensington Hospital Management Committee show?

Answer 2

The judge held that the hospital was not liable. Even if they were to have admitted Mr. Barnett, there would have been little or no chance that the antidote would have been administered to him in time to prevent his death.[2] Although the hospital had breached the standard of care, that breach was held to not be a cause of Mr. Barnett’s death.[1]

A doctor’s refusal to treat a patient who appears before him after swallowing arsenic is not a cause of fact in the patient’s subsequent death if it is established that even proper treatment would not have saved him
Essentially… would the result have occurred but for the act or omission of the defendant?

Question 3

What is the relevant standard?

Answer 3

• Because the tort of negligence is civil law and not criminal it means that there is only necessity for 50% probability compared to the 100% required in criminal case.
  49% is the same as 0% in civil law - meaning 51% is the same as 70/80/90/100%

Question 4

What did the case of Lord Diplock in Mallett v McMonagle 1970 show?

Answer 4

Robinson v Post Office [1974] 2 All ER 737 (employer’s liability – ladder injury – tetanus – doctor’s intervention);

 Bull v Devon Area HA (1989) 22 BMLR 79 (split hospital campus; terrible birth of second twin; transfusion + delay);

 Hotson v East Berkshire AHA [1987] AC 750 (fall out of tree; fractured left hip joint, left with necrotic hip joint; delay + crushed blood vessels)

Question 5

Exceptional Theories of Causation - Starting with Material Contribution

Answer 5

The scenario: both an innocent cause, and the breach, swirling around the factual matrix, and neither crosses the 51% threshold (McGhee/Fairchild).

Question 6

What are the strict conditions for McGhee and Fairchild ?

Answer 6

• Only one candidate/agent could have caused the claimant’s harm (and claimant was exposed to that agent both tortuously and innocently)
  • The defendant failed to take precautions against the risk of the agent causing the claimant harm (proof of breach)
  • The defendant’s breach preceded the claimaint suffering the precise harm which that agent causes
  • The claimant cannot (because of the current limits of human science), prove, on the balance of probabilities, that his harm was the result of the particular exposure to the agent which the defendant’s breach brought about

The highest the claimant can prove is that the defendant’s breach materially increased (i.e. added to) the risk of harm (somewhere in between the balance of probabilities and de minimis)

Question 7

What is the Wilsher Exception?

Answer 7

• Fairchild did not apply
- Although hospital was in breach, several agents could have caused the condition, all of which this baby suffered from
‘a failure to take preventative measures against one out of five possible causes is no evidence as to which of those five caused the injury’

Question 8

What did the case of Barker v Corus?

Answer 8

The House of Lords allowed the appeal, holding (with a split bench) that the Fairchild principle was applicable in the instant case and thus where the claimant could successfully prove that the defendant’s tortious negligence had materially increased the risk of injury, they were entitled to remedy. Further, an assessment of a party’s liability ought only depend upon that party’s own actions with external factors being relevant at the damages assessment stage. Moreover, any damages reductions ought be determined with regards to the likelihood that the defendant in question had caused the harm compared to the other possible reasons (including the claimant himself).

Question 9

Under the Compensation Act 2006 when is someone responsible in liable?

Answer 9

• (a)in respect of the whole of the damage caused to the victim by the disease (irrespective of whether the victim was also exposed to asbestos—
  
  • (i)other than by the responsible person, whether or not in circumstances in which another person has liability in tort, or
  • (ii)by the responsible person in circumstances in which he has no liability in tort), and
  • (b)jointly and severally with any other responsible person.
  • (3)Subsection (2) does not prevent—
  • (a)one responsible person from claiming a contribution from another, or
  (b)a finding of contributory negligence.

Question 10

What happens when there is Material Contribution to the Damage?

Answer 10

Bonnington Castings:
Lord Reid: ‘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. What is a material contribution must be a question of degree.

Question 11

What is the Bonington Principle?

Answer 11

• Same conditions apply as for McGhee/Fairchild, but the big difference is that in Bonnington, it was medically possible to prove that the inhalation of the negligent silica dust actually contributed to the injury

Defendant’s breach actually increased the actual harm, not the mere risk of harm

Question 12

What happens with the failure to warn?

Answer 12

· The normal scenario (where ‘but for’ is applied) –
· Recall Montgomery (for duty/breach)
Chatterton v Gerson (re causation – failed) – English law – a hybrid of subjective/objective factors in determining whether the patient would have gone ahead with the operation, nevertheless

Question 13

What are the factors looked at by the court in Chatterton v Gerson?

Answer 13

· procedure advisable/necessary?
· prior positive experiences of treatment?
· employment/family reasons?
patient trust in medical advisers?

Question 14

When was Chatterton v Gerson confirmed?

Answer 14

This was confirmed by the House of Lords in Sidaway v Bethlem Hospital, where it was held that questions of information and advice as to risks should be addressed solely through the tort of negligence, not through trespass to the person.

Question 15

But what does the case of Chester v Afshar say?

Answer 15

· What if patient still would have gone ahead with the operation, but on a different day (and perhaps with a different surgeon)?
· ‘But-for’ simply won’t work
But in the interests of ‘fairness’, the HL was prepared to allow a ‘modest extension’ (!) to the causation rules

Question 16

What is the Bolitho Exception to Causation?

Answer 16

• Defendant commits breach by omission

And

Alleges that, even had she hypothetically fixed that breach by some positive act, the damage would still have occurred

Question 17

A causal ling might still be proven under the Bolitho Exception when?

Answer 17

(I) ON THE BALANCE OF PROBABILITIES, DEF. (HAD SHE FIXED THE OMISSION) WOULD HAVE DONE A FURTHER ACT TO PREVENT THE HARM,

OR

(II) DEF. WOULD NOT HAVE DONE THE FURTHER ACT TO PREVENT THE HARM, AND IT WOULD HAVE BEEN NEGLIGENT NOT TO HAVE DONE THAT

Question 18

What is the policy justification for Bolitho?

Answer 18

Wright v Cambridge Medical
Lord Neuberger MR:

* (i) it would be an affront to justice if D could escape liability by contending that, if he had not been negligent as alleged, the same damage would have occurred because of a subsequent different act of negligence
* (ii)D has deprived C of being treated appropriately

Question 19

What is the relationship between Causation and Pure Omissions?

Answer 19

• BUT-FOR IS SATISFIED
  
  • NOT AN EXCEPTION
  • BUT A WEAKER CAUSAL LINK MAY BE ACCEPTED

EG: Haynes v Harwood
Dorset Yacht v Home Office
Carmarthenshire CC v Lewis

Question 20

How does reframing the damage as “loss of chance” have an impact?

Answer 20

• has the defendant’s breach reduced the chances of a claimant obtaining a better outcome, or his/her chances of avoiding a worse outcome?

i.e. claimant cannot prove on the balance of probabilities that damage was caused by def.’s breach, but claimant has lost a chance that can be measured in % terms

Question 21

What is the leading loss of chance case?

Answer 21

1. Gregg v Scott
   
   • Claimant tried to EXPAND THE LAW to include claims for lost chances of avoiding a bad/worse outcome (even where that chance was less than 50%)
     · Failed
   • it cannot be right to adopt a procedure having the effect that, in law, a patient’s prospects of recovery are treated as non-existent whenever they exist but fall short of 50%. If the law were to proceed in this way it would deserve to be likened to the proverbial ass.’ (Lord Nicholls).
     The radical and wholesale change to the fabric of the common law, with unpredictable consequences – Lord Phillips –

Hotson v East Berkshire

Question 22

What are intervening Acts?

Answer 22

• The situation – causal link is met, but it might still fail due to a “novus actus interveniens”, a BREAK in the chain of causation.
• (Some consider an aspect of remoteness or ‘legal causation’).
D1 commits a breach, but the most direct agent of C’s harm is something other than D1’s conduct.

Question 23

What case shows that the claimant’s own fault in an intervening Acts?

Answer 23

McKew v Holland
While the employer was negligent and liable for the initial injury, the new action by the complainant was a novus actus interveniens that broke the chain of causation. The complainant had taken an unreasonable risk that could not be foreseen and the defendant could not be liable for the ankle injury. Lord Reid made it clear that an injured person should act reasonably and carefully in his recovery. Trying to descend steep steps unaided with the possible of his leg giving way was an example of unreasonable behaviour.

Question 24

What case shows that the another defendant’s negligence

Answer 24

Knightly v Johns The court held that the defendant was negligent and his order was a novus actus interveniens that would negate the car driver’s liability for the police officer’s injuries. While it can be said that the police officers attending the tunnel for the crash was a foreseeable event, the negligent order to drive down a one-way tunnel into opposing traffic was not foreseeable. This third party order broke the chain of causation. This case states that the test for causation is whether the damage is reasonably foreseeable and a ‘natural and probable’ cause of the defendant’s action. In this scenario, the negligent order given by the other police officer could not be reasonably foreseen and therefore, it was a new intervening act that broke the chain of causation.

Question 25

What does the house of lords decision in Fitzgerald v lane 1989 show?

Answer 25

Substituted an apportionment of 50% to be divided between the defendants. The court is to first assess the full damages and then assess the degree to which the claimant contributed to their own injuries. Then reduce the damages accordingly. A claimant is not to be over compensated simply because there are two defendants.

Question 26

What happens when intervening Medical Treatment occur?

Answer 26

Webb v Barclays Bank Plc and Portsmouth Hospitals NHS Trust [2001] Lloyd’s Rep Med 500 Court of Appeal
The doctor’s actions did not break the chain of causation but the Bank was entitled to a contribution from the Trust to reflect the proportion of pain, suffering and loss of amenity caused by them.
‘THE NEGLIGENCE IN ADVISING AMPUTATION DID NOT ECLIPSE THE ORIGINAL WRONGDOING. THE BANK REMAINED RESPONSIBLE FOR THEIR SHARE OF THE AMPUTATION DAMAGES. THE NEGLIGENCE OF DR JEFFREY WAS NOT AN INTERVENING ACT BREAKING THE CHAIN OF CAUSATION.’

Question 27

What are supervening Acts?

Answer 27

• Defendant A and Defendant B commit torts against the claimant; these torts are causes of distinct aspects of the overall injury, but neither tort caused the whole of the injury
  Every tortfeasor should compensate the injured claimant in respect of that loss and damage for which they should justly be held responsible:

Question 28

What did the case of Baker v WIlloghby show?

Answer 28

The defendant was held to be liable for losses and reduced earnings, even after the shooting and amputation of the leg. The court took the view that if Mr Willoughby had not been negligent in his driving to begin with, the complainant would not have lost his leg. Thus, he was still liable as if the shooting had never happened and must compensate Mr Baker for losses after the amputation. It was stated that when there are two accidents that are consecutive and contribute to the same injury, the original defendant would be liable for the overall injury.

Question 29

What occurs under jobling?

Answer 29

• Defendant A commits tort against claimant causing injury
  BUT
  
  • Due to a non-tortious reason, claimant’s loss would have happened anyway.
    So the initial tort is submerged in a greater injury
    ○ The damages awarded to the plaintiff for loss of earnings were to be assessed according to the principles that the vicissitudes of life were to be allowed for and taken into account when assessing damage
    Plaintiff not to be over-compensated

Question 30

What is the Remoteness of Damage ?

Answer 30

• The general type of harm must be foreseeable – not precise mechanism by which occurred
• If there are too many causal links between def’s breach and C’s damage, then even reasonably foreseeable damage might be too remote to be recoverable
• The Wagon Mound principle: the general type or kind of harm must be foreseeable.
It does not seem consonant with current ideas of justice or morality that for an act of negligence, however slight or venial, which results in some trivial foreseeable damage the actor should be liable for all consequences however unforeseeable and however grave.”

Question 31

What is the modern application of Jolley v Sutton?

Answer 31

The House of Lords found for the claimant, affirming that only the kind of injury need be foreseeable, and not the specific outcome. It was unconvincing to submit that harm to younger children playing and harm to older children restoring amounted to two different forms of harm in the instant case.