Factual Causation Flashcards
BARNETT v CHELSEA & KENSINGTON HOSPITAL MANAGEMENT COMMITEE
Authority for the BUT FOR TEST - FACTUAL CAUSATION.
But for D’s actions, harm to C would not have happened.
In case - P (deceased) - arsenic poisoning - rushed to hospital - told him that it was no big concern and to go to local GP - died soon after - clear actionable damage, DoC and breach.
BUT - evidence - due to arsenic positioning - would have died no matter what - THUS - D’S BREACH NOT A BUT FOR CAUSE OF THE DEATH.
Performance Cars Ltd. v Abraham [1962]
AUTHORITY: DEFENDANT ONLY HAS TO COMPENSATE CLAIMANT FOR ANY ADDITIONAL DAMAGE HE HAS CAUSED.
(Rolls Royce case)
REANEY v University of North Staffordshire NHS Trust [2015]
Reinforces Performance Cars Ltd. v Abraham - applying to personal injury.
Only have to compensate for additional damage D CAUSES.
In case, C already had a cracked skull pre D’s breach (medical negligence) - D did not have to compensate for the cracked skull
Take victim as you find him in tort - can also come to the benefit of D.
McWilliams v Sir William Arrol Co. [1962]
C - steel tower worker - not wearing harness - fell and died.
D managed to prove that C was the type of person who would not have worn a harness even if provided.
Were able to convince court that, therefore, their negligence was NOT a but for cause.
(Today would be affected by employment regulations.)
Wilsher v Essex AHA [1988]
Example where there are MULTIPLE ALTERNATIVE CAUSES (that could have caused the ENTIRETY of the harm.)
At H of L stage, Ds were able to bring 3 other alternative causes.
C failed to argue that it was D’s breach of duty that was solely responsible (but for on a balance of probabilities) for causing baby’s blindness.
HELD; BURDEN OF PROOF FALLS ON PLAINTIFF TO SHOW THAT, BUT FOR D’S BREACH, HARM WOULD NOT HAVE HAPPENED.
FITZGERALD v LANE [1987]
AUTHORITY FOR THE COMMON SENSE FACTUAL CAUSATION APPROACH.
When there are concurrent causes both capable of bringing about the harm on its own, and ‘but for’ test would result in neither party being liable, liability will be several (proportionate.)
F - crossed pelican crossing when light was red.
D1 - driving negligently - hit him - threw into opposite lane
D2 - driving negligently - ran him over when in opposite lane.
Doctors unable to pinpoint which D caused injury(ies)
Court applied common sense approach - several liability - each D had to split cost of compensation (25% each as F(C) - 50% contributory negligent.)
BONNINGTON CASTINGS LTD v WARDLAW [1956]
AUTHORITY FOR THE ‘MATERIAL CONTRIBUTION TO THE HARM’ APPROACH.
Applies to divisible diseases when there are MULTIPLE CUMULATIVE CAUSES - general exposures to some kind of harmful agent, exposures happen over a period of time, and each of the exposures acts in addition to the previous exposures to make the harm worse.
In case - D - employer -silica dust - C - lung disease
Most of exposure not result of D’s breach (innocent dust)
Some exposures - result of D’s breach (guilty dust)
Liability will be SEVERAL.
McGhee v National Coal Board [1973]
Prelude to Fairchild - material contribution to THE RISK of harm
INDETERMINATE Ds, INDIVISIBLE INJURIES, SINGLE CAUSAL AGENTS.
Tortious and non-tortious exposure by D (failure to provide washing facilities to shower off harmful agent after work)
Scientifically impossible to prove whether the INDIVISIBLE INJURY was caused by the tortious or non-tortious exposure.
H of L - developed approach expanding on Bonnington:
Material contribution to the RISK OF Harm - established this factual causation principle.
FAIRCHILD V GLENHAVEN FUNERAL SERVICES LTD [2003]
AUTHORITY AND CONFIRMED McGhee v National Coal Board as good law.
MATERIAL CONTRIBUTION TO THE RISK OF HARM (in essence, not really a causation test.)
REQUIREMENTS:
- Indeterminate defendants
- Indivisible injury (one exposure caused entirety of harm)
- Single causal agent (common substance being exposes)
- SCIENTIFIC IMPOSSIBILITY to pinpoint which exposure caused it.
(‘Evidentiary gap’.
In case: C - worked for 2 defendant employers - both, in breach of duty, had exposed C to asbestos.
C got mesothelioma - scientifically impossible to prove which D caused the exposure which caused entirety of harm.
MATERIAL CONTRIBUTION TO THE RISK OF HARM - JOINT AND SEVERAL LIABILITY.
Sienkiewicz v Greif (UK) Ltd [2011]
Example of Fairchild material contribution to the RISK of harm approach being applied.
C - mesothelioma - employer’s breach - in office - but tortious exposure minimal compared with natural exposure…
C lived in area known to have a lot of asbestos in atmosphere.
Expert evidence showed that she would have inhaled MORE from the non-tortious exposure than the tortious one.
Regardless, UKSC held; that the Fairchild approach should be applied to all mesothelioma cases where there are multiple exposures (and other requirements.)
Thus - employer held jointly and severally liable for ENTIRETY of the harm - as no other D responsible for majority of the exposure, D had to bare the entire cost.
Barker v Corus UK Ltd [2006]
Recently after Fairchild - few appeals conjoined together challenging fairness of the Fairchild approach.
Argued that liability should be several, NOT joint and several.
H of L ALLOWED APPEAL ON THAT PART - AMENDED FAIRCHILD APPROACH - LIABILITY SHOULD BE SEVERAL.
BUT - DID NOT LAST LONG DUE TO OUTCRY FROM MESOTHELIOMA PRESSURE GROUPS.
Let to passage of S.3 of Compensation Act 2006.
(NB - side note: in one of the appeals - C had been exposed to asbestos in the course of his self-employment. - 20% contributory negligence imposed.)
S.3 Compensation Act 2006
s.b. page 270-271
REASSERTS FAIRCHILD but FOR MESOTHELIOMA ONLY.
JOINT AND SEVERAL LIABILITY where there are indeterminate defendants, the indivisible disease of MESOTHELIOMA, a single harmful agent (asbestos) and scientific impossibility.
(S.3. does not preclude a finding of contributory negligence or contribution proceedings.)
HOWEVER - IF INDIVISIBLE DISEASE IN QUESTION IS NOT MESOTHELIOMA, THEN BARKER V CORUS APPLIES - DEPENDS ON ARGUMENT MADE - room for purposive interpretation?
International Energy Group Ltd v Zurich Insurance Plc (UK) [2015]
Fairchild scenario but in Guernsey - where law of England and Wales does not fully apply.
Guernsey Royal Court borrowed Fairchild and Barker v Corus from UK common law.
Found Ds liable using Fairchild, but SEVERALLY, applying Barker.
Went to UKSC - issue: could Barker v Corus still be good law, notwithstanding S.3 of the Compensation Act 2006.
HELD THAT IT IS
Chappel v Hart [1998] AUSTRALIA
D - doctor - performed surgery competently but risk materialised.
C - sued on basis that had she been informed of risk, she would’ve taken more time to decide whether to go ahead.
However, the risk stays the same regardless of what day the surgery is carried out - claimant’s outcome would have been the same without the doctor’s omission to inform her of the risks.
Majority held that ‘but for’ cause NOT made out - as but for doctor’s omission, the harm still would’ve happened anyway.
Found causation by policy reasoning -
HARM FELL WITHIN THE SCOPE OF THE RISK THAT THE C SHOULD HAVE BEEN WARNED ABOUT.
Jobling v Associated Dairies [1982]
MULTIPLE SUCCESSIVE CAUSES
Conflicts with Baker v Willoughby
D’s breach - initial back injury.
Before reached trial - medical condition - back - unable to work - condition completely independent of D’s breach.
Court CUT OFF D’s liability (unlike in Baker)
Distinguished on basis that the later injury was caused by a naturally occurring event, whereas in Baker it was caused by a tortious event (battery.)
SUMMARY:
IF THERE ARE MULTIPLE SUCCESSIVE CAUSES, WHERE THE 2ND EVENT IS TORTIOUS, THEN THE 1ST D REMAINS LIABLE FOR THE INJURIES THAT HE ORIGINALLY CAUSED.
WHEREAS IF THE 2ND EVENT IS NON-TORTIOUS, THEN D’S LIABILITY IS CUT OFF AT THE POINT WHEN THE 2ND EVENT SETS IN
