negligence- causation Flashcards
definition of causation by Blackburn
Causation is the relation between two events that holds when, given that one occurs, it produces, or brings forth, or determines, or necessitates the second
(necessary conditions of a harmful outcome)
what are the 2 types of causation
legal and factual
what is factual causation
-but for test
2 purposes of factual causation
1) to identify the necessary conditions of an occurrence and
2) to eliminate irrelevant considerations
(Davis v Bunn)
what is legal causation
- the ascription of responsibility for its occurrence
- the ‘real’, or ‘substantial’ or ‘direct’, or ‘effective’ cause(s) of a harmful outcome
- a process of attribution (searching for wrongdoers)
case for legal causation
Stapley v Gypsum Mines
what are we searching for in legal causation
wrongdoers
case for but for test
Baker v Willoughby- he was the original wrongdoer
Jobling v Associated Dairies outcome
a supervening illness truncated D’s liability for the earlier injury (a back injury (due to his employer’s carelessness) that reduced C’s earning capacity)
Rahman v Arearose Ltd outcome
just apportionment of loss in light of the overall concatenation of events- both Ds will bear some part of the responsibility
what did Laws LJ argue in Rahman v Arearose Ltd about what judges are trying to do
-judges seek to fashion ‘a decent and rational system for the compensation of innocent persons who suffer injury by reason of other people’s wrongdoing’
what did Laws LJ say in Rahman about the approach followed in the case
the approach has been ‘heavily pragmatic’ (taking in policy considerations)
what does Lord Wright say that a novus actus interveniens is (words used to describe it)
something: -unwarrantable -unreasonable extraneous -extrinsic
what does Lord Wright say that a novus actus interveniens is (definition)
is there ‘a new cause which disturbs the sequence of events’ and breaks ‘the chain of causation’?
what do Hart and Honoré identify the the novus actus interveniens doctrine as
cloudy and the heavy use of metaphor when judges and lawyers address causal questions (the causal ‘chain’)
3 third party conduct cases
- Home Office v Dorset Yacht Co Ltd
- Lamb v Camden LBC
- Ward v Cannock Chase DC
Home Office v Dorset Yacht Co Ltd outcome
third-party conduct must be ‘very likely to happen’ (Lord Reid). Here, Home Office bore responsibility
Lamb v Camden LBC outcome
a degree of likelihood amounting almost to inevitability’ (Oliver LJ). Only rarely you will be liable for third party intervention.
Ward v Cannock Chase DC outcome
‘virtually certain’ third party intervention (Scott J
what does ‘to occasion harm’ mean
to set the scene for another to do harm. Home Office set the scene for the offenders to cause harm.
3 cases for occasioning harm
- Dorset Yacht
- Lamb; Ward
- Cunningham v Reading Football Club
Stansbie v Troman outcome
D held for reasonable foreseeable loss- he was told by C to look after the home
why do we compare Stansbie v Troman to Dorset Yacht
Dorset Yacht- you must show that the relevant conduct was likely to happen, whereas in Stansbie the decorator was held liable for leaving house unattended and house being burgled
2 cases for proof of causation
- McGhee v National Coal Board
- Bonnington Castings
McGhee v National Coal Board outcome
- D had breached the duty it owed to C by failing to provide adequate washing facilities
- current state of medical knowledge could not say whether it was probable that C would not have contracted dermatitis if he had been able to take a shower after work (there was an evidential gap- no science to prove otherwise)
- C could not establish ‘but-for’ (factual) causation
Bonnington Castings outcome
The C could meet the requirements of causation, but C must show that D made a material contribution to damage
test in McGhee (what must C show)
that D
1) breached the duty owed and
2) materially increased the risk to which C was exposed
what is the problem with the McGhee test
it is not the same as proving material contribution to damage, and as a result, you haven’t got over but-for hurdle
what did Lord Wilberforce say about D’s in McGhee (3)
- the creator of the risk should suffer from evidential difficulty
- D’s usually have deep pockets
- loss spreding may seem desirable to reduce impact of losses on individuals
(A lot of sympathy for C but causation issue isn’t solved)
what does Calabresi say on loss spreading
-‘[A]ccident costs will be least burdensome if they are spread broadly among people’
(pursuit of corrective justice?)
what did the McGhee doctrine establish with regards to proof of causation
established how to deal with the problem of an evidential gap
Clark v MacLennan what happened (3)
(i) D departs from a general practice and
(ii) the harm that the practice was supposed to forestall occurs,
(iii) D bears the burden of proof on breach of duty and causation.
(McGhee could be applied to a medical context)
Fitzgerald v Lane outcome
- McGhee doctrine stretched
- Burden of proof on causation borne by D
Wilsher v Essex Area Health Authority outcome
- D added to the list of factors which could lead to injury
- courts accepted that McGhee should apply
Wilsher v Essex Area Health Authority- what does BW say about this case and McGhee
that they are ‘wholly different’- distinguishable (CoA)
Wilsher v Essex Area Health Authority- HoL, and Lord Bridge
- McGhee not applicable, it did not lay down a new principle
- Lord Bridge: Causation must be proved on the balance of probabilities (his view is radically different from what lord Wilberforce intended very clearly in Wilsher).
how did Fleming describe Lord Bridge’s comment on balance of probabilities (Wilsher case)
Fleming described Lord bridge’s commitment to proof on the balance of probabilities as his ‘unrelenting credo’
Fairchild v Glenhaven Funeral Services Ltd outcome
- Wilsher applied: causation not proved (CoA)
- HoL: McGhee applied
why was McGhee applied by the HoL in Fairchild
Where D:
(i) breaches duty owed to C and brings about
(ii) a material increase in risk, liability can be imposed on D for
(iii) the full loss
(D may have been responsible for only a small proportion of the exposure to risk- fair? is this case fair for multiple wrongdoers?)
Relevant considerations in Fairchild
Lord Nicholls
rejecting the claims would have been ‘deeply offensive to instinctive notions of justice’
Relevant considerations in Fairchild
Lord Rodger
the empty duty argument. What’s the point of holding employers under a duty to take reasonable care, if you can’t bring actions against them when they fail to take reasonable care?
Relevant considerations in Fairchild
Lord Bingham (2)
- the balance of fairness argument. The balance of fairness lies with putting liability on the duty of breach.
- The overall object of tort law is to define cases in which the law may justly hold one party liable to compensate another’. Pragmaticism?
what was the overall argument made in Fairchild
the House of Lords made it clear that, in most cases, C must prove causation on the balance of probabilities.
what was the overall argument made in McGhee
What did Lord Hope say
only has relevance in exceptional cases
-Lord Hope stated that Lord Bingham correctly interpreted it in Fairchild
Barker v Corus
extent of liability is confined to …?
-The extent of liability is confined to the extent that D materially increased the risk to which C was exposed
Barker v Corus
relevant concerns with regards to apportionment of damage (3)
(i) duration of exposure;
(ii) intensity of the exposure;
(iii) the type of asbestos.
Barker v Corus
what considerations came about
- policy arguments
- asbestos related claims became popular
why did Lord Rodger dissent in Barker v Corus
- there was a tussle on the meaning of justice
- here Lord Hoffman was trying to be just to Ds, in Fairchilds, C’s were given more thought about
The Compensation Act 2006, section 3(1) (the ‘mesothelioma amendment’)
what does it state
-A ‘responsible person’ is liable for all relevant harm (even if C has been exposed to asbestos by others).
why is there a return to Fairchild, after Barker
-Under Barker , C had to find and sue each careless employer in order to recover full compensation.
pleural plaques- Rothwell case outcome
- The plaques did not constitute actionable physical injury.
- Risk of subsequent injury insufficient to ground a claim.
- Psychiatric injury resulting from fear that disease may develop insufficient to ground a claim
(not actionable)
Sienkiewicz v Greif (UK) Ltd outcome
- A problem: all residents of Ellesmere Port had been exposed to low levels of asbestos in the general atmosphere
- D liable for full loss (Fairchild/ s3(1) CA 2006)- D appealed to SC which was dismissed
what does Lord Rodger say in the Sc in Sienkiewicz about Fairchild
- ‘the Fairchild exception applies in single exposure cases’
- The C was entitled to succeed if she proved that D’s breach of duty materially increased the risk that her mother would develop mesothelioma
material increase in risk
what does Lord Phillips say ‘material’ is
-how do we establish whether a risk is de minimis
“material” is intended to exclude an increase in risk that is so insignificant that the court will properly regard it on the de minimis principle’
-Establishing whether risk exposure is de minimis: ‘This must be a question for the judge on the facts of the particular case’
what does Lord Roger say in Sienkiewicz about a proper balance and the Fairchild exception
- he wrote on ‘the proper balance’ between the parties’ interests in cases where the Fairchild exception applies
- the Fairchild exception represents a ‘proper balance between the interests of claimants and defendants
Williams v University of Birmingham first decisions
- with the Fairchild exception, D found liable
- there was a breach of duty and a resultant material increase in risk
- D was under an obligation to take reasonable care to ensure that Williams was not exposed to a reasonably foreseeable and unacceptable risk of asbestos-related injury
what does the principle of de minimis mean for liability
if quantity is de minimis (and not material), breach of duty cannot be established.- highlighted in Williams v University of Birmingham
what did Aikens LJ say in Williams about establishing a breach of duty
- : in order to establish breach of duty [and causation], a finding had to be made as to the actual level of asbestos fibre in the environment (where William had undergone exposure)
- If the quantity was only de minimis (and not material), breach of duty could not be established.
3 considerations adopted by Aikens LJ in Williams
1) what level of knowledge (in 1974) should the university have had about the risks posed by the relevant quantity of asbestos? What would the RP have made of the presence of asbestos in that context?
2) with this knowledge, should it have been reasonably foreseeable to the University that Williams was likely to be exposed to a risk of asbestos-related injury?
3) were there reasonable steps that the University ought to have taken in the light of reasonably foreseeable risk (which it had failed to take)?
williams- final outcome
given the lack of knowledge in 1974 concerning the risks posed by small quantities of asbestos, harm to Williams had not been reasonably foreseeable
Fleming on Traditionalism (3)
-proof on the balance of probabilities; direct, anecdotal, particularistic evidence; non-
statistical evidence.
- Probabilistic evidence: relevant to non-traumatic injuries (e.g., injuries arising from exposure to toxic pollution).
- Courts: typically uncomfortable with probabilistic evidence
Fleming on innovation in the United States of America:
market share liability case
Sindell v Abbott Laboratories
Sindell v Abbott Laboratories outcome
-Each of the 11 manufacturers should be held liable for that proportion of C’s injuries that corresponded to their share of the D.E.S. market (Market share liability)
Fleming on innovation in the United States of America
Ayers v Jackson Township outcome
- Cancerphobia was treated as a form of compensable mental injury. (cf cases concerning pleural plaques.)
- Cf traditional refusal to compensate for increased susceptibility to disease
Two dangers of a pro-claimant approach to proof of causation
case
Snell v Farrell
Snell v Farrell outcome
there is a strong commitment to C’s and their interests, but if you relax the requirements of causation it could lead to medical malpractice for example
psychology of causation
what does Atiyah identify
He identifies judges as exhibiting sympathy to claimants when determining causal questions.
apportionment- what type was used in the following case
Rahman
apportionment tailored to the harmful wrongdoing of D1 and D2.
apportionment- what type was used in the following case
Fairchild
lack of apportionment. unjust vis-à-vis D?
apportionment- what type was used in the following case
Barker
apportionment: unjust vis-à-vis C? (lack of evidence; protracted procedure.)
pro-C or pro-D?
McGhee
pro-C development (security)
pro-C or pro-D?
Wilsher
pro-defendant return to traditionalism (per Lord Bridge). (Freedom of action)
pro-C or pro-D?
Fairchild
pro-C
pro-C or pro-D?
Barker
pro-D retrenchment
pro-C or pro-D?
Compensation Act 2006, s3(1)
pro-C
