General negligence-Factual causation Flashcards
What test is used for factual causation?
“But for”
Case for factual causation.
Barnett v Chelsea and Kensington Hospital Management Committee (1969)
Facts of Barnett.
Man went to a hospital complaining of stomach pains and vomiting.
Doctor refused to examine him and sends him home untreated.
He died of arsenic poisoning.
As treatment wouldn’t have saved him, doctor’s inaction were not a cause of death.
When can the normal rule of causation be altered?
In instances of fairness or on policy grounds.
Instances where normal rule of causation had been altered in interests of fairness or on policy grounds.
- Multiple possible causes (“Fairchild exception”)
- Material contributions and cumulative causes
- Other decisions influenced by policy considerations.
Case for multiple possible causes (“Fairchild exception”).
Fairchild v Glenhaven Funeral Services (2002)
Facts of Fairchild.
C got cancer after exposure to asbestos but he had been exposed by 5 previous employers and it was impossible to establish which occasion had resulted in the cancer.
Principle of Fairchild.
“But for” test could not be met for any employer.
But on policy grounds it was deemed the C’s case should succeed. So previous employers were liable to pay compensation in proportion to the extent to which they had increased the risk.
e.g 1/10 exposures = 10% of damages
Case for material contributions and cumulative causes.
Bonnington Castings LTD v Wardlaw (1956)
Facts of Bonnington Castings LTD.
C worked in the D’s foundry for 8yrs, where exposed to dangerous particles working with grinders (where D has been negligent) and hammers (where D had not been).
D argued that it could not be shown that particles from grinders caused C’ subsequent illness.
Found liable.
Principle of Bonnington Castings LTD.
Appellants were liable because the dust from the grinders had materially contributed to the illness
Case for other decisions influenced by policy considerations.
Chester v Afshar (2004)
Facts of Chester.
C needed operation for bad back.
Consulted neurosurgeon who did not tell her operation carried a 1-2% risk of caudaequina syndrome which she got.
“But for” test not met as couldn’t be proven that she would have cancelled operation upon knowing about the risk.
Claimant succeeded in 3-2 majority in the HoL.
What was the main reason that there was a 3:2 majority in the HoL for Chester?
Was an overriding duty of doctors to warn patients of risks.
Duty “ensures that due respect is given to the autonomy and dignity of each patient” (Lord Steyn)
3 intervening acts which break chain of causation.
- A natural event, freeing the D from liability for any further damage.
- Whether action of a third party breaks the chain of causation depends on blameworthiness of 3rd party’s actions.
- Whether actions by the claimant themselves break chain of causation depends on whether they are reasonable.
