Factual Causation

Question 1

Barnett v Chelsea and Kensington Hospital

Answer 1

But for test; B’s tea laced with arsenic, nurse thought he was drunk, Dr refused to see him. Died from poisoning. Would have died anyway. → D has not caused C’s death.

Question 2

Wright v Cambridge Medical Group

Answer 2

But for test; Causation must be certain. GP referred child to hospital too late, hospital treated him incorrectly. GP: he would still have been treated that way had he referred him earlier.
→ Causation satisfied. In Barnett, death was certain, here GP speculating that hospital would still have been negligent.

Question 3

Wardlaw

Answer 3

material contribution to harm; C exposed to dust. D was in breach of duty, but had he provided an extractor fan, C would still have been exposed to some dust. → C has to prove that guilty dust is a material contribution, no need to prove on balance of probabilities it’s the sole cause.

Question 4

Holtby

Answer 4

material contribution to harm; C suffered asbestosis. Had worked for D, and other employers → C was only entitled to receive compensation for the number of years he’d worked for D. Because divisible injury, can divide the blame. D only liable only to extent of his contribution.

Question 5

Bailey v Ministry of Defence

Answer 5

material contribution to harm; If ‘contribution of the negligent cause was more than negligible’ = causation satisfied.

Question 6

McGhee v National Coal Board

Answer 6

material contribution to risk of harm; Foundation of principle, but leading authority = Fairchild.
C exposed to dust (not negligent). But employer in Breach of Duty for not providing showering facilities, to cycle home covered in dust. So dust at work = legal; dust on way home = tortious.
→ Enough to show that some exposure is tortious.

Question 7

Fairchild

Answer 7

material contribution to risk of harm; Cs exposed to asbestos during employment for several people. Mesothelioma. Impossible to determine which employer had caused the cancer. ‘But for’ test can’t be satisfied, maybe would have developed cancer, maybe not. Evidentiary gap.
→ Policy justifies different approach. C should be able to jump evidentiary gap
→ Applied McGhee. Prove causation: material increase in risk (wouldn’t be fair to be able to recover only if 1D)

Question 8

Barker v Corus

Answer 8

material contribution to risk of harm; Similar to Fairchild
+ Point not raised in Fairchild: If D is liable for materially increasing risk; full amount or proportionate?
Damages: should be proportionate to the contribution of each D.
If not under Compensation Act

Question 9

Sienkiewicz

Answer 9

In asbestos case, s3 Compensation act 2006 applies.
Lord Philips: statute is limited to mesothelioma, but fairchild principle isn’t. Fairchild + s3 only are dependent on the evidentiary gap, if in future cause is found, no need for them. + Fairchild is appropriate balance. Must resist temptation to give C’s case additional boost with lax approach to causation

Question 10

Evidentiary gap

Answer 10

Material contribution to risk of harm

Question 11

Wilsher

Answer 11

Limits to the exception. Baby developed eye condition. Hospital negligent (too much oxygen), but 4 other possible causes.
→ No Liability. Causation not satisfied. Fairchild only apply for similar causes. We know the cause (asbestos) but ignore which source. Here we ignore the cause. The agents need to operate in similar ways for Fairchild to apply.

Question 12

Henegan

Answer 12

C developed a different form of cancer (not mesothelioma). s3 doesn’t apply, Barker (apportion blame to contribution)

Question 13

Hotson v East Berkshire AHA

Answer 13

C fell off a tree, damaged leg. Misdiagnosis, delayed right treatment. Developed worse condition (necrosis). Already 75% chance he would develop it when he fell.
→ Cannot sue for loss of chance of more favourable outcome (established on the balance of probabilities, not loss of chance)

Question 14

Gregg v Scott

Answer 14

Loss of a chance? Dr failed to diagnose cancer until late. Had 42% chance of surviving 10y, went down to 25%.
→ Cannot sue for loss of chance in personal injury cases.
Why not adapt rules of causation (like Fairchild)? Would be ‘anarchy’, undermining principle that C must prove cause. Nicholls dissent: Unfair that you can sue 51 → 40 but not 49 → 25; in both cases C lost a valuable chance of recovery.
(NB: 1st case ≠ loss of chance, causation on balance of probs)

Question 15

Allied Mapples v Simmons & Simmons

Answer 15

In negotiations, lawyers didn’t frame clause appropriately, and Allied Mapples didn’t get the same indemnities.
→ Can sue for loss of a chance in Pure Economic Loss. Must prove that you had a real chance of succeeding as opposed to speculative one.
≠ Causation.