Factual Caustion Flashcards
Factual Causation
Was the defendant negligence a cause of claimants loss
Legal Causation
Should defendant’s negligence be considered to be responsible for claimants loss?
Legal Causation - should defendant’s negligence be considered to be responsible claimants loss
Insist on causation
Ensures when we impose liability only those who, by intervening in the world, have changed the course of events for the worse
‘But for’ test
But for the defendants negligence will the claimant still be hurt?
Barnett v Chelsea and Kensington hospital
Claimant went to the hospital, doctor sent him away with examining him.
He had arsenic poisoning and died.
Doctor was negligent, ddint take reasonable care
But if they took reasonable care, patient would have died anyway.
so there is no causation - defendants negligence has made no different to the outcome.
But for: What would have happened if defendant had acted carefully
McWilliams v Sir William Arrol & Co
Defendant failed to provide safety harness - negligence
On previous occasions when the harness was given he didn’t use it - if given now he wouldn’t have used it. - outcome would have been the same. No causation satisfied in negligence.
What is the standard for ‘probable’ in law
Need to look for something with 50% or more chance of occurring.
Quantifying loss when defendant causes damage to a claimant who is already injured.
Performance cars Ltd v Abraham (!962)
1st Car in accident, car needs respraying and defendant is liable.
2nd car accident, 2nd defendant doesn’t need to pay for respray because he hasn’t made them any worse off.
Pre-tort position didn’t not change.
Quantifying the loss when D injuries C, and this injury is overtaken by a later injury.
Baker v Willoughby
Claimant was a regular person, got into a car accident.
Loss of mobility, reduced earing capacity. Defendant made him worse off, and accepted liability.
After this claimant was shot in the leg.
Initial defendant argued that they should only be liable to compensate loss of earnings up until the point at which the claimant was shot.
Court held: Initial defendant had to pay for loss of earnings even after he was shot.
Second defendant would need to compensate for loss of earnings to claimants pre-tort already injured position
Quantifying the loss when D injuries C, and this injury is overtaken by a later injury.
Jobling v Associated dairies.
Normal person suffers back injury due to employers negligence
Naturally occurring illness - problems with back that renders him unable to work.
Defendant liability continues until back illness and then stops.
Court held: Logical for defendants liability to stop because the second illness was naturally occurring and was going to occur regardless of defendants negligence.
Material contribution to harm. (2 sources of harm)
Bonnington castings Ltd v Wardlaw
Clamant was exposed to dust from two sources and developed lung disease.
Defendant only had control over one source of the dust.
The majority of dust was dust that the defendant could not control.
Lord Reid - Disease was caused by all the dust together, cant be wholly attributed to material from one source of other.
Material contribution to harm.
Bailey v Ministry of Defence
Had operation, after care from hospital was negligent
Had to have 3 more procedures as a result which put strain on her body.
Naturally gets pancreas disease, causes her to vomit
So weak she cant respond to her vomit she has a heart attack
Weakness and tiredness comes from two sources.
- Some comes from innocent - pancreas disease
- Some in negligence from hospital aftercare
But materially contributed to her illness.
Material contribution to harm.
William v Bermuda Hospitals Board
Claimant has pain in stomach, orders scan
Scan should’ve been done asap but instead takes 4 hours
Operation was delayed by about 3 hours
Claimants appendix burst, leaked puss which caused complication with heart and lungs during operation
Did they delay of the scan make any difference
‘But for’ test or material contribution
Defendant applies ‘ before for’ - probably would had this outcome anyway.
But court applies material contribution because doctors negligence, puss keep spreading and gets worse, delayed contributes materially to build up, liable, doctors caused injury.
Quantification of damage: Returning the claimant to their pre-tort position where damage is divisible. Haltby v Brigham and Cowan
Haltby v Brigham and Cowan
Claimant was exposed to serious disease,
Compensation was divided by how long the employee spent with each employer.
Each contributed to the material risk of harm
Quantification of damage: Returning the claimant to their pre-tort position where damage is divisible. Allen v British Rail Engineering
Claimant was an employee who was innocently exposed to tools with risk.
Neither him or his employer knew of the risk so the employer is not negligent for his expose.
Employer is negligent when they become aware of the risks and do not act on it.
Court held: employer only liable for part of the illness they caused whilst being negligent.
Problems of proof or causation: loss of a chance. Hatson v East Berkshire Area Health Authority
Claimant fell out of tree
Went hospital, was negligently mistreated
Experienced five days without comfort,
25% chance that if he would been treated properly he would have avoided paralysis .
Claim failed because he could not proof causation on the basis of probabilities.
Loss of a chance. Gregg v Scott (2005)
Doctor failed to diagnose cancer, 9 month delay
When he first went to negligent doctor the chance we could be cured was 42%. When eventually diagnosed chance he’d be cured dropped to 25%.
Tried to claim for that loss
Claim failed because is there was 42% chance he would recover - chances are that he would have died.
Patient needs at least 50% chance of being cured when they first went to the doctor to show on balance of probabilities that they could’ve been cured.
Courts stick with balance of probabilities.
Loss of chance. JD v Mather (2012)
Similar case to Gregg v Scott
During delay, cancer upstaged - life expectancy dropped by 3 years
Upstaging was damage - loss of life expectancy can be compensated.
Material contribution to risk of harm; Fairchild v Glenhaven Funeral services
(Fairchild test exists where specific causation is unknown to scientific community)
Claimant exposed to asbestos from different employers, suffer from disease - mesothelioma
- 30 years to manifest after exposure
- If a defendant materially contributed to the risk of harm, they’re liable.
- Don’t have to prove they caused or contributed to your illness - just have to show they contributed to the risk of your illness.
- Any defendant who negligently exposed the claimant to asbestos is liable
What are the significant features of Fairchild v Glenhaven Funeral Services
- Deals with a duty specifically intended to protect employees against being unnecessarily exposed to the risk of a particular disease
- The duty is one intended to create a civil right to compensation for injury relevantly connected to its breach.
- Where their is a greater expose of asbestos there is a greater risk to contracting cancer.
- Medical science cannot prove whose asbestos brought about the disease
- Claimant has in fact contracted the disease.
Limits to the Fairchild Test
It must be known which substance caused the harm, if there is a large variety of potential causes where it is unknown which one caused the harm the claim will fail the threshold of causation.
Wilsher v Essex Area Health Authority
defence to material contribution to risk and limit to Fairchild test
Premature baby, Junior doctor performing more experienced procedure.
Baby developed RLF, caused blindness, can be caused by excess oxygen which was given by the doctor who thought the baby had low oxygen levels,
Baby had other symptoms which could’ve caused risk of harm.
Different potential substances - cant say defendant caused risk of harm.
Justifying Apportionment
Barker v Corus 2006
- If expose to risk is treated as the damage in cases where exposure has led to a contraction of the disease.
- The damage (exposer to risk) can be divided by the time spent at each employer.
- Seems like the fairest thing to do.
Compensation Act (2006)
S3 (1) Applies where: A person has negligently caused another to be exposed to asbestos
The victim has contracted mesothelioma as a result of exposure.
S3 (2) The person responsible shall be liable for the WHOLE of the damage
Only meant to be applied to mesothelioma and stops apportionment under this disease using Barker as precedent.
Applying compensation act 2006
Sienkiewicz v Greif
Claimant only exposed to risk of 18% by a singular employer. the rest was un the air naturally. Applying the compensation act of 2006 the defendant was liable to pay for 100% of the damages.
If the disease was not mesothelioma than barker would still apply and the damages would be apportioned to how much risk each employer negligently exposed you to.
