Factual Causation Flashcards
General rule for but-for causation
Causation cannot be proven unless the but-for test is satisfied (Chelsea v Barnett)
Although the doctor was negligent to not treat B, they would have died anyway. But for the breach, the same result would have happened.
What if we don’t know what C would have done/identifying counter-factual
Bolitho - You cannot escape liability by proving you would have failed to take the course which any competent doctor would -
A defendant cannot escape liability by saying that the damage would have occurred in any event because he would have committed some other breach of duty thereafter
Robbins v Bexley - Breach of duty was in not doing anything to prevent tree roots overgrowing. Counterfactual had to be drawn to ask what would have happened if they had done something rather than nothing, and what they would have done.
Civil Liability Contribution Act s1, 2
S1 - Person liable for damage suffered by another may recover contribution from any other person liable in respect of the same damage
S2 - Amount recoverable from any person will be such as may be found by the court to be just and equitable having regard to their responsibility for the damage in question
Bonnington Castings v Wardlaw
Guilty dust vs innocent dust exposure - arguably the breach from employer may not have but for caused his lung disease.
Held that the noxious dust from employer did materially contribute to the employee’s contracting of lung disease.
De minimis principle to be used - was the exposure more than de minimis?
Holtby
Defendant liable only to the extent of their contribution, since this was a divisible injury and we know how much of the injury was caused by it - hence material contribution to harm test applied, not material contribution to risk.
Bailey v MOD
2 illnesses - one from general weakness after an alleged negligent operation, and one was pancreatitis which was unrelated.
She fell and choked on own vomit causing brain damage.
The damage was an indivisible injury - cannot determine the proportion of the causes’ involvement, but they both materially contributed.
Again more than de minimis contribution necessary, cumulative causes acting to create a weakness.
Williams v Bermuda - Successive events
Alleged that defendant’s original sepsis got worse due to not being treated quickly at hospital - two causes.
Material contribution test applied.
Successive events are capable of making a material contribution to the subsequent outcome - the contributory causes don’t need to be at the same time/simultaneous.
Holmes v Poeton
Claimant had Parkinsons and wanted to sue his former employers, as they exposed him to TCE.
No real evidence that TCE causes Parkinsons.
Held that Bonnington ‘material contribution’ test can apply to indivisible or divisible injuries.
Generic and individual causation must be proven - Can TCE in principle cause Parkinsons, and then did it cause Parkinsons in this case?
Held that there was no real proof that TCE does cause Parkinsons, so it could not have materially contributed
McGhee v NCB
Exposed to brick dust which gathered on his skin, no shower facilities so had to cycle home caked in grime, causing dermatitis.
Evidence showed that the time in which he cycled home increased the risk of developing a condition, so court applied ‘material contribution to risk of harm’ test.
Wilsher
Number of different factors which all could have caused the condition, including the negligence. But the negligence itself doesn’t raise a presumption that it was that, rather than one of the other factors.
Claimant must prove that the injury was caused by the same agency as the defendant’s wrongdoing, or at least one which operated in substantially the same way.
Eg in Fairchild, the asbestos came from multiple people but we knew it was asbestos fibres which caused it, we just didn’t know where they were from.
In Wilsher, 5 different cases, he had not proved on the balance of probabilities that this was the cause.
Wary of extending material contribution too widely.
Fairchild v Glenhaven
Cs exposed to asbestos by more than one employer, contracted mesothelioma.
Medically impossible to determine which employer exposed Cs to the dust which caused the cancer.
On special circumstances, justified a modification to causation. By proving that the defendants individually materially increased the risk of mesothelioma, they have materially contributed to the illness.
So we must find that the defendants materially individually increased the risk of developing the condition.
Barker v Corus
Similar to Fairchild, but H had been exposed to asbestos at home too, and didn’t develop mesothelioma.
Held Fairchild exception can operate even where not all potential causes of damage were tortious, but damages assessed by the SHARE of risk attributable to the breaches of duty by the defendants.
Eg If I worked for defendant 1 for 2/10 years, he may be liable for 20%.
Overall significance is that liability is divided according to the probability of how much you increased the risk.
S3 Compensation Act 2006
Overruled Barker in mesothelioma cases - for mesothelioma specifically, there is joint and several liability.
For non-mesothelioma cases, Barker applies.
Sienkiewicz
Fairchild/Barker adopted to cater for ignorance as to causes of mesothelioma.
S3 CA does not prevent courts reverting to old balance of probabilities test if advances in medical science allow for such.
Heneghan
6 employers, asbestos exposure by each of them alleged to have led to lung cancer.
Since Compensation Act 2006 only concerned mesothelioma, Barker v Corus applied and damages were apportioned from Ds in apportion to their contribution to the risk.
Gregg v Scott
Likelihood of survival reduced due to misdiagnosis, but HL held that no causation on balance of probabilities. Even if proper diagnosis happened, chance would still only be 42%.
Also, loss of chance itself is not an actionable form of damage so he couldn’t claim for the 17% reduction.
Perry v Raleys Solicitors (loss of chance)
Client claimed that but-for his solicitor’s negligent advice, he would have been able to settle for more money. Sued for loss of chance of making such a claim.
Held that the client would need to prove they would have been better off if competently advised, on the balance of probabilities.
In this case, he would have to prove he would have claimed the award within the time, and it would need to be an honest claim.
Distinguishing Fairchild from Bonnington from Wilsher?
Fairchild - where there is an injury but multiple tortfeasors and we do not know which tortfeasor could have done it, but one certainly did. (Barker rule applies for non-mesothelioma cases, Compensation Act for mesothelioma)
Bonnington - One tortfeasor but multiple causes which operate in the same way - material (more than de minimis) contribution to harm principle
Bailey - Where there is more than one cause, if both causes cumulatively work to cause an illness then a cause may be liable if it has more than minimally contributed.
Wilsher - One tortfeasor but multiple causes which all operate in entirely different agencies - on balance of probabilities you need to prove that it was that specific cause since they all work differently and it could have been any one of them.
