Causation in Fact

Question 1

Two questions to ask to establish causation

Answer 1

1. Was D’s wrongful act or omission a cause in fact of C’s harm?
2. Is the harm too remote a consequence of the wrongful act or the result of a new intervening cause?

Question 2

General test for causation

Answer 2

• but for the defendant’s negligence would the claimant have been injured?
• if the answer is no the tort was the cause of the harm

Question 3

Hypothetical scenario for causation

Answer 3

• you have to show what would have happened if D didn’t behave wrongfully
• would anything have changed?
• if not there could be no grounds for causation

Question 4

McWilliams v Sir William Arrol (1962)

Answer 4

• steel erecter was killed from fall from a steel tower
• his widow sued employer for breach of statutory duty and negligence because he ‘failed’ to provide safety belts
• HoL held that the failure to provide was not the cause of the death
• workers collectively didn’t wear them and regarded them as dangerous
• even if belts were provided he would not have used them and would still have died

Question 5

Barnett v Chelsea and Kensington hospital management committee (1969)

Answer 5

• doctor held to be guilty of breach of duty for failing to examine patient who called hospital complaining of vomiting
• there was breach but no liability in damages
• patient died from arsenic poisoning
• when he arrived at hospital it would be too late for medic to attend to him
• doctor’s negligence did not change the outcome and would not have helped

Question 6

Robinson v Post Office

Answer 6

• patient went to the doctor and was given anti-tetanus serum
• doctor negligently administered serum bc he didn’t check for allergic reaction by waiting for 30 mins
• patient had reaction 9 days later
• even if doctor waited half hour there would have been no reaction and C would have suffered 9 days later

Question 7

Bolitho v City council and hackney health authority (1997)

Answer 7

• boy of two admitted for illness/respiratory issues
• doctor was summoned but failed to attend
• child died from respiratory failure
• only medical technique that would’ve saved kid is intubation
• court asked what D would have done if she attended
• D was held not liable and gave evidence that had she attended she would not have intubated and according to courts she was not negligent because she wouldn’t have changed the outcome

Question 8

Is it necessary to show that D’s conduct was the sole/main cause of C’s damage?

Answer 8

• No

- it is sufficient to show that D’s wrong made a material contribution to the damage

Question 9

Test for material contribution

Answer 9

if D’s conduct was a necessary factor in bringing about the damage the but for test is satisfied and it amounts to a material contribution to the damage

Question 10

Hill v New River co (1868)

Answer 10

• D wrongfully caused water to spout up in a public road
• P’s horses took fright and swerved to the other side of the road
• 3rd person’s construction left the cutting unfenced and horses fell into it and were injured
• D’s conduct was held to be a cause in fact of the harm and they were liable
• accident happened because of two factors
• when the two are brought together the damage is caused

Question 11

Rule of english law when more than one person is liable for an indivisible harm (civil liability contribution act 1978)

Answer 11

• each person is liable in full for that harm
• claimant cannot recover more than 100% of what they’re owed
• if one D is broke the other will recover their loss in full

Question 12

Material contribution in Bonnington Castings Ltd v Wardlaw (1956)

Answer 12

• D can be liable even if their contribution to the damage is not major but is necessary
• W developed lung disease bc he inhaled dust at work
• disease caused by progressive accumulation of dust
• dust was from hammers
• no known protection from dust from those hammers
• his employers were not liable for the dust from the hammers but a significant amount of dust came from the machinery
• D had been in breach of statutory duty to properly maintain workplace
• dust from machines was material contribution to W’s disease
• any contribution above de minimis was enough
• HoL held D liable

Question 13

What is de minimis non curat lex?

Answer 13

if the contribution is so slight that it is really not of any consequence it will not be recognised by the court
-important to establish contribution in material contribution cases are above this standard

Question 14

Carder v University of Exeter (2016)

Answer 14

• C developed aesbestos and sued his two past employers
• first contributed only 0.3% of his exposure to aesbestos dust which he was advised would be regarded as de minimis
• exeter contributed 2.3%
• D argued that this would not make any significant difference to his overall health as he already had respiratory issues not caused by any wrongdoing
• CA held that was irrelevant
• C was entitled for 2.3% of the damages from the total claim for aesbestos

Question 15

Lord Toulson in Williams v the bermuda hositals board (2016)

Answer 15

-CA held it was sufficient in a medical negligence wase to prove that negligence made a material contribution and did not require prove of causation (but-for test)
“it is right to infer on the balance of probabilities that the hospital board’s negligence materially contributed to the process, and therefore materially contributed to the injury to the heart and lungs”

Question 16

What is the general rule for a claim for the aggravation of an existing harm?

Answer 16

• second defendant is only liable for the additional loss of earning/injury they have caused
• they are only liable for what they made worse

Question 17

General rule for a claim for the advancement of a harm that would have occurred non-tortiously at a later date?

Answer 17

-C’s claim is limited to the losses associated with the advancement of the harm

Question 18

General rule for divisible harms negligently caused by two defendants

Answer 18

-two defendants are liable separately for the separate harms caused

Question 19

Where is apportionment allowed?

Answer 19

where the injuries are divisible not just divisible causes

Question 20

Holtby v Brigham & Cowan (2003)

Answer 20

• H exposed to aesbestos dust while working for multiple employers
• for half the time was employed by Ds
• aesbestos is a cumulative disease
• Ds are held liable for breach of statutory duty
• judge lowered award for damages to reflect that Ds were only employers for part of the relevant time
• reduction of 25%
• D’s were liable only to the extent of their contribution so damages were apportioned

Question 21

Limits to Holtby

Answer 21

• an exception to the but for test

- only applies to industrial disease cases and not cases of physical injury

Question 22

‘Doubling the harm’ addition to but for causation

Answer 22

-if you can prove D’s negligence more than doubled the risk of harm

Question 23

Lord Phillips in Sienkiewicz v Grief (2011)

Answer 23

“if statistical evidence indicates that the intervention of a wrongdoer more than doubled the risk that the victim would suffer the injury, then it follows that it is more likely than not that the wrongdoer caused the injury

Question 24

Cook v Lewis

Answer 24

• A and B were out shooting and fired simultaenously in the direction of C who was injured
• impossible for C to prove which one injured him
• A and B didn’t encourage eachother it was by chance
• supreme court held C could recover
• burden was shifted to D to exculpate themselves because Ds deprived C of ability to prove which one of them caused the damage
• if they fail to do so they are both liable

Question 25

Fairchild (2002) exception to but-for causation

Answer 25

• number of defendants in succession create risk of harm
• C developed respiratory issue by inhaling aesbestos dust
• reduced life expectancy
• C was employed by different employers who breached their duty by failing to take precautions to prevent exposure to aesbestos dust
• courts held it was the exposure at work that caused the disease
• CA held that each case failed because C couldn’t establish against one employer that it was their dust that caused the disease
• HoL reversed the outcome of the CA and held use of but-for test was unfair
• sufficient each employer had materially increased the risk of the employee developing the cancer
• each employer could be liable for full compensation but could claim contribution from the others

Question 26

Limits of the fairchild ‘fairness’ exception

Answer 26

• applies even where one of the risk periods involves self-employment
• applies where there is only one tortious source of aesbestos dust
• there is a single noxious agent
• does not apply in ordinary accident cases

Question 27

Application of Fairchild in Sienkiewicz v Grief (2009-11)

Answer 27

• worker spent time in areas with aesbestos and died
• she was also exposed to low levels of A in the atmosphere of the general area
• daughter brought action
• claimed she just had to prove exposure to asbestos dust materially increased the risk of harm according to F
• claim was rejected
• required C to prove but-for causation through ‘doubling the risk of harm’ rule
• tortious exposure only increased harm by 18%
• CA held F did not say the exception only appplied where it wasn’t possible to quantify the increase in risk
• held D was liable for materially increasing the risk in harm
• supreme court agreed that but-for causation was not necessary

Question 28

LJ Smith on the limits of Fairchild exception

Answer 28

“it is clear that the exception will only apply where the two or more potential causes act either through the same agent or possibly through different agents which act on the body in the same way”

Question 29

Baroness Hale’s limitation of Fairching in Re J (Children) (2013)

Answer 29

“in Sienkiewicz v Grief the Supreme court made it clear that this is a special rule, created only because of the special difficulty of proving causation in mesothelioma cases”

Question 30

Barker v Saint Gobain Pipelines plc (2005)

Answer 30

• exposure to aesbestos dust over series of employment
• period of self employment
• dust could’ve triggered cancer in this period
• no liability if that was the case
• CA held fairness requirement in F applied
• HoL understood the fairness of making C liable for a small period of self-employment
• held there should be apportionment because there are different causes for the indivisble harm
• each employer was liable for their proportionate time period
• introduced apportionment into claims based on fairchild with multiple Ds

Question 31

Compensation act 2006

Answer 31

-barker says damages are to be apportioned according to the proportionate risk of an indivisible damage but the compensation act rejects apportionment in mesothelioma

Question 32

General rule for loss of a chance claim

Answer 32

C has to prove on balance of probabilities that D caused an injury

Question 33

What is the general rule for loss of a chance claims where C can prove there is a more than 50% chance of injury occuring cause of D’s wrongdoing?

Answer 33

• proved causal link of balance of probabilites

- entitled to 100% compensation in regards to that injury

Question 34

Hotson v East Berkshire Health Authority, 1987 (loss of chance)

Answer 34

• C injured hip in accident at school
• doctor misdiagnoses problem as knee injury
• proper diagnosis was made 5 days later and C had developed permanent deformity of hip
• judge found if the doctor had non-negligently diagnosed hip there was 25% chance injury would be prevented
• awarded 25% of damages
• HoL held this was wrong
• C failed to prove that condition was caused by faulty diagnosis
• by the time doctor saw him evidence showed it was more than likely the permanent deformity was inevitable
• if the chance of injury is less than 50% you get nothing

Question 35

Gregg v Scott (2015)

Answer 35

• majority of HoL held there should be no award of damages for a negligent 9 month delay in diagnosis of a tumor
• delay caused C’s tumour to spread and reduced chance of survival by <10 yrs
• reduced survival rate from 42 to 25%
• reaffirmed Hotson rule
• held apportionment should apply in cases where the chance of avoiding an injury was more than 50%
• Cs who had more than 50% chance would no longer be compensated 100% but they’d be given a proportionate amount

Question 36

Rule for economic loss of a chance in Spring v Guardian Insurance (1995)

Answer 36

• claim in negligent reference that prevented C from getting a job
• damages will reflect the chance that C would have actually got the job had they not been ruled out due to negligent reference
• applies even if the chance of getting the job are 50% or less

Question 37

What are concurrent sufficient causes?

Answer 37

• where two Ds act in concert

- each encouraging the other to act tortiously

Question 38

Corey v Havener (1902)

Answer 38

• C was driving horse wagon and 2 motorcycles driven indecently roared past him
• each D was negligent
• horse ran away and P was injured
• each motorcycle on its own would’ve been enough to scare the horse
• each rider was held liable
• if u were to apply the but-for test neither would be liable
• but-for test is disapplied and each D is regarded to have caused the injury

Question 39

What if you have both a tortious sufficient cause and a non-tortious sufficient cause?

Answer 39

-but-for test is applied and D is not held liable for the tortious cause as the harm would have occured anyway due to the non-tortious cause

Question 40

Baker v Willoughby (1970), multiple sufficient causes

Answer 40

• C was knocked down by D’s car and suffered injury to his leg
• 3 yrs later before C had taken D to trial he was shot in the leg during a robbery
• leg had to be amputated
• D1 argued amputation had obliterated the effect of his accident and D2 was liable for the complete loss of the leg and the loss of earnings
• HoL held D1 liable for the loss arising from the original injury throughout C’s normal life expectancy and held that further loss occured due to robber’s tort

Question 41

Application of Baker in Jobling v Associated Dairies (1982)

Answer 41

• successive causes
• tortious cause followed by non-tortious cause
• J injured at work by employer’s breach of statutory duty
• earning capacity reduced by 50%
• J already suffered from spinal disease unrelated to the accident
• made him completely unfit for work
• HoL held that D was only liable for to pay damages in respect of the period up to the non-tortious event
• if they ignored the illness C would be over-compensated
• did not ignore the second event like HoL did in Baker

Question 42

General rule for threatened harms in Dillon v Twin State Gas Co. (1932)

Answer 42

• 14 yr old boy playing on a bridge
• he lost balance and tried to save himself by holding on to a rope
• rope was one of D’s wires which electrocuted him and killed him
• if he hadn’t caught onto wire he would’ve fallen off bridge and died on the rocks below
• D was liable for C’s death
• court took into account C’s life expectancy when awarding damages
• life expectancy was essentially null as he would’ve died at his own fault regardless of D’s negligence
• approach adopted by english law

Question 43

Kerry v England (1898)

Answer 43

• druggist supplied wrong medicine to an already fatally ill patient
• damages reduced to nothing
• wrong drug did not accelerate the death to any appreciable extent
• the death was already imminent

Question 44

obiter in Smith v Cawdle Fen Commissioners (1938)

Answer 44

“if a man is killed by somebody’s negligence on a monday, it is proved to the satisfaction of the jury that he had been sentenced to death and would have been hanged on the wednesday… it is absurd to suppose that his executors would recover the same damages as if he had been a person with a likelihood of a long life”