Causation in Negligence

Question 1

Barrett v Chelsea and Kensington Hospital

Answer 1

The But For Test; would the claimants harm have happened, but for the D’s breach

• B visited a hospital as a co-worker was injured
• they were told to return in the morning
• They went back and drank some tea that was laced with arsenic at 5 am; the antidote must be administered within 75 mins
• they showed up at the hospital at 8 and were turned away again and they died
• No Causal link

Question 2

Hotson v East Berkshire

Answer 2

In Law 51%=100% for the balance of probabilities which needs to be surpassed

• a 13 year old fell from a tree and was sent home to rest
• Hip turned necrotic
• 2 reasons for the necrotic hip: the impact or caused by the hip failing to be detected
• Held; Causation failed as there was a 75% chance that the necrotic hip was caused by the fall

Question 3

CJD Litigation

Answer 3

Statistical evidence will assist in ascertaining the balance of probabilities

• clinical trial for dwarfism using HGH harvested from cadavers
• this could lead to CJD and death
• the government issued a date to stop the injections
• Causation is founded for the individuals who had received the injections after the cutoff date

Question 4

Bolitho Exception

Answer 4

Exception for the But For test

• doctor would have intervened to help the patient by doing X
• It would have been negligent for the doctor not to have done X

Question 5

McGhee v National Coal Board

Answer 5

Exception to the But for test; The Doctrine of Material contribution

• where you have a tortious and an innocent cause mixed together and neither can get ahead of 51%
• Brick Kiln Worker was supposed to have a shower facility and suffered dermatitis
• 2 causes; the dust in the kiln and the dust on his skin afterwards
• but for test would have failed but the abrasion was cumulative
• C only needed to prove that the dust materially attributed to breach

Question 6

Fairchild v Glenhaven

Answer 6

Exception to the But for test; The Doctrine of Material contribution

• employees who contracted with asbestos in the workplace
• all worked at several employers
• If C could show that one employer had materially increased the risk of contracting mesotheleoma then they could claim in full

Question 7

Barker v Corvus

Answer 7

if more than one D is found liable on the fairchild principle for exposure to an agent other than asbestos, then their liability is proportionate

Question 8

Chatterton v Gerson

Answer 8

Doctors Failure to warn cases; applying the test in failure to warn cases:
4 factors:
1)How necessary was the operation?
2)The past medical experience of the claimant
3) the claimants employment situation
4)the claimants trust of their doctor

Question 9

Chester v Afshar

Answer 9

Causation was allowed as it was important to disclose the risks to him

Question 10

McKew v Holland

Answer 10

Novus Actus Interveniens; something happened to C that removes fault from the original party

• C’s own acts can break the chain of causation
• C hurt leg due to injury at work
• He fell down stairs when walking on his own
• It was held to be an intervening act

Question 11

Knightly v Johns

Answer 11

Novus Actus Interveniens; something happened to C that removes fault from the original party

• Conduct of a second defendant
• car was overturned in a tunnel and the officer failed to close the tunnel off
• C drove down the tunnel and collided with an officer
• the police officers failure to close the tunnel broke the chain of causation

Question 12

Webb v Barklays Bank

Answer 12

Medical negligence will almost never break the chain of causation

• she tripped over and damaged her leg
• negligently told that amputation was the only option
• it did not break the chain of causation
• Medical treatment is always foreseeable and likely

Question 13

Checklist of Conditions for the Fairchild Exception to Apply

Answer 13

(i) Only one ‘candidate’ (agent) could have caused C’s harm; C was exposed to that agent both tortiously and innocently
(ii) D failed to take precautions against the risk of the agent causing C harm (proof of breach)
(iii) D’s breach preceded C suffering the precise harm which that agent causes
(iv) C 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 D’s breach brought about
(v) the highest that C can prove is that D’s breach materially increased (ie, added to) the risk of harm to him (somewhere between the balance of probabilities and de minimis)