Causation + Remoteness Cases Flashcards
The but-for test
But for D’s act/omission, would the claimant have suffered the damage?
“If the damage would not have happened but for a particular fault, then that fault is the cause of the damage; if it would have happened just the same, fault or no fault, the fault is not the cause of the damage.”
Barnett v Chelsea Hospital [1969] QBD
Held: Doctors were not liable for negligently failing to diagnose Mr Barnett of arsenic poisoning - the claim failed on causation because even if Mr Barnett had been correctly diagnosed and treated he would still have died because the poisoning was so advanced.
4 Exceptions to the but-for test
- Multiple concurrent causes
- D’s act need noly have materially contributed to the loss - does not need to be the sole/primary cause
- Bonnington
- Multiple cumulative causes
- In these cases damage will be apportioned between Ds in proprotion to the percentage to which each defendant is responsible.
- Negligence which “more than double the risk of indivisible harm”
- “Loss of chance” arguments
Bonnington Castings Ltd v Wardlaw [1956] HL (Sc)
Held: C had contracted pneumoconiosis by inhaling air which contained minute particles of silica. There were two causes of dust (one natural, one negligent) and in order to establish “causation” C need only show that the negligent source of dust had materially contributed to the contraction of the disease.
But-for Exception (1): Multiple concurrent causes
Fairchild v Glenhaven Funeral Services Ltd [2002] HL
Held: Since it was impossible to establish whether asbestos exposure arising from D1 or D2 had been the cause of C’s mesothelioma, the HL held that as long as C could show that the negligence of D1 and/or D2 had materially increased the risk of developing mesothelioma, then causation could be established.
Reasoning:
- The injustice that arose from the imposition of liability on an employer in such circumstances greatly outweighed the injustice of denying redress to the victim
Analysis
- It appears that, where medical science cannot prove that a defendant has materially contributed to a disease, but can prove that a defendant has materially increased the risk of contracting the disease, Fairchild may be applied to establish the necessary causation.
- Dependent upon the disease/injury being indivisible.
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Extent of liability:
- The majority in Fairchild expressly declined to decide how liablity was divided up bteween the defendants, though joint and svseral liablity seem to be implied. However this approach was challenged in the subsequent case of Barker v Corus [2006]
Barker v Corus plc [2006] HL
Held: Applied Fairhchild however held that Ds were not jointly and severally liable and the damages were instead to be apportioned among the defendant based upon the length of time that they exposed the claimant to the asbestos and the intensity of that exposure.
Analysis
- This decision meant that if and when some of the defendants subsequently went insolvent, C would have been unable to recover a full proportion of their damages
- Howeverreversed by s.3(2) Compensation Act 2006which provides that in mesotehlioma cases each employer will be jointly and severally liable for all of the damage (N.b.only applicable to cases involving mesothelioma -Farichild has since been applied to other types of harm)
Compensation Act 2006 s.3
Where a cliamnt has been negligently exposed to asbestos by multiple different employers and has subseqeuntly developed mesothelioma, then each employer will be jointly and severally liable for all of the damage.
International Energy Group Ltd v Zurich Insurance plc UK Branch [2015] UKSC
Held: The Supreme Court unanimously holds that the common law rule of proportionate recovery established in Barker [2006] UKHL 20 continues to apply in Guernsey;
A panel of seven Supreme Court judges unanimously found that because the 2006 Compensation Act did not apply in Guernsey, insurer Zurich was only liable for a proportion of compensation paid to an employee who died of asbestos-related lung disease calculated according to the length of time it insured his employer, International Energy Group (IEG).
Analysis:
It seems to me that, on a formal level, the judges are careful to state that Fairchild is not confined to mesothelioma cases. However, there are so many comments about the benefit of hindsight and the need for caution before making radical changes in the interests of individual justice that it is clear there will be little appetite to extend the ‘Fairchild enclave’. Craig Connal QC
Wilsher v Essex Area Health Authority [1988] HL
Held: regardless of the number of potential causes of injury, it always falls to the claimant to establish the likelihood of causation. McGhee had not reversed the BOP
- First instance decisio overruled and sent back to a lower court - Could nto simply assume that the oversturatrion of Oxygen had caused the baby’s blindness -> claimant had to prove this on teh balacne of probabilities.
Hotson v East Berkshire Area Health Authority [1987] HL
Held: C was unable to claim for harm suffered from a negligent misdiagnosis of his fractured hip. Had the fracture been correctly diagnosed, the risk of developing harm was still at 75% and therefore C was unable to claim any damages.
Per curiam: The question of whether damages can be awarded for a lost chance of avoiding personal injury is not settled:
- In this instance no damages were given for the lost chance.
Gregg v Scott [2005] HL
Held: Loss of a chance is not a recoverable head of damage in medical negligence claims.
3:2
Lord Nicholls gave a powerful dissent:
“This is the type of case under consideration. A patient is suffering from cancer. His prospects are uncertain. He has a 45% chance of recovery. Unfortunately his doctor negligently misdiagnoses his condition as benign. So the necessary treatment is delayed for months. As a result the patient’s prospects of recovery become nil or almost nil. Has the patient a claim for damages against the doctor? No, the House was told. The patient could recover damages if his initial prospects of recovery had been more than 50%. But because they were less than 50% he can recover nothing.
This surely cannot be the state of the law today. It would be irrational and indefensible. The loss of a 45% prospect of recovery is just as much a real loss for a patient as the loss of a 55% prospect of recovery. In both cases the doctor was in breach of his duty to his patient. In both cases the patient was worse off. He lost something of importance and value. But, it is said, in one case the patient has a remedy, in the other he does not.
This would make no sort of sense. It would mean that in the 45% case the doctor’s duty would be hollow. The duty would be empty of content. For the reasons which follow I reject this suggested distinction. The common law does not compel courts to proceed in such an unreal fashion. I would hold that a patient has a right to a remedy as much where his prospects of recovery were less than 50-50 as where they exceeded 50-50.”
Sienkiewicz (estate of Costello) v Greif (UK) Ltd [2011] UKSC
Held: Following Fairchild, a defendant to a mesothelioma claim is liable if the negligent exposure materially increased the risk of the claimant developing the disease. This exception to normal causation principles applied whether there was a single defendant or multiple defendants.
Analysis
- Compensation Act 2006 s. 3 did not restrict liability to when D has materially increased the risk of a victim contracting mesothelioma (whether by reason of having materially increased a risk or for any other reason) Merely sets out the quantum of liability - it is still up to the court to decide in what circumstances liability attaches. However in this instance the doubles the risk test was unsuitable.
Legal Causation: Sucessive sufficient causes
Where there are two events both of which are sufficient to cause the damage suffered by the claimant, the courts tend to impose liability upon the cause which was the first in time.
Performance Cars v Abraham [1962]
Held: C had a car collision with X that meant C’s car needed a respray. He then collided with D, through D’s negligence, which would of itself have necessitated a respray. C sued D for the cost of a respray. CA ruled that since P’s car already needed a respray, the need for it did not flow from D’s negligence and therefore he would not be liable - the defendnat was therfore absolved of all liability to pay.
Lack of legal causation - successive sufficient causes
Baker v Willoughby [1970] HL
Held: Subsequent injury is irrelevant in assessing damages payable in respect of an earlier injury unless such subsequent injury reduces the plaintiff’s disabilities or shortens the period during which such disabilities would be suffered.
Therefore D was liable for the full damages arising from disabiling C’s leg in the car accident, notwithstanding the fact that a subsequent shooting and had required D’s leg to be amputated. Liability does not cease because an overwhleming injuy has occured after the initial injury.
