Negligence: Factual causation

Question 1

What is factual causation?

Answer 1

Linking to whether the negligent act in some way connected to the loss? (or play a substantial role)

Question 2

A starting point for factual causation is the “but for” test. Set out the steps involved.

Answer 2

• “But for the defendant’s act or omission would the harm have occurred?”
• Yes: the defendant did not affect the outcome
• No: the defendant did affect the outcome
  (Counter-factual analysis - what would have happened had the defendant not been negligent?

Question 3

What are some of the limits of the “but for” test? (i.e., applying test rigidily)

Answer 3

It may yield results preventing liability despite a clear breach of duty, or it may fail to give a clear answer when multiple possible causes exist.

Question 4

What can we learn from the case of Wright v Cambridge Medical Group? {Pushing “but for” to its limits}

Answer 4

• GP argued that what they did had jo causative significance
• Held: if she referred promptly, it is more likely that she would have received competent treatment and lasting damage would not have occured

Question 5

What can we learn from the case of Chester v Afshar? {Pushing “but for” to its limits}

Answer 5

• Consultant advised patient operation would solve problem but did not mention about small risk of complications developing
• Held: Surgeon was not at fault in terms of how he operated + but he failed his duty to tell patient about the risks
• HOL: “but for” not satisifed, and majority held “a narrow and modest departure from traditional causation principle”

Question 6

Why does the “but for” approach fail in complex medical negligence and industrial disease cases?

Answer 6

• One may never be able to tell for sure whether the duty of care was the main case of the harm
• To what extent can causality be “relaxed” so as to afford a deserving claimant a remedy?
• Three alternative approaches: material contribution, material increase in risk, “lost chance” approach

Question 7

What is the significance of the Duke of Buccleuch v Cowan (1886) case regarding material contribution?

Answer 7

Lord Reid held it would be suffice to show that defendant’s breach of duty made more than a “de minimus” contribution to harm

Question 8

How does the “weak bridge” analogy explain material contribution?

Answer 8

If two lorries of different weights exceed the bridge’s limit, both contribute to its collapse, showing that even a lesser contribution can still be material.

Question 9

What was the significance of Wilsher v Essex AHA [1988] in causation law?

Answer 9

Curtailed the material increase in risk approach, emphasising the independent nature of multiple possible causes.

Question 10

What challenge do asbestos-related cases pose to causation?

Answer 10

Due to long-term exposure and multiple sources, it is difficult to pinpoint the “guilty fiber” causing disease

Question 11

How did Fairchild v Glenhaven [2002] impact asbestos cases?

Answer 11

Allowed consecutive employers to be jointly and severally liable for asbestos exposure

Question 12

How did the Compensation Act 2006 change the liability rules from Barker v Corus [2006]?

Answer 12

Restored joint and several liability for mesothelioma claims

Question 13

What key ruling came from Sienkiewicz v Greif (UK) Ltd [2011] regarding environmental exposure?

Answer 13

Background environmental asbestos exposure can still be considered tortious, not a Wilsher-type situation.

Question 14

What percentage increase in risk was deemed sufficient in Sienkiewicz?

Answer 14

An 18% increase in risk was considered material.

Question 15

How does the loss of chance doctrine challenge traditional causation?

Answer 15

It suggests that even a reduced chance of recovery should be compensable, though this remains controversial.

Question 16

What can we learn from the case of Hotson v East Berks AHA?

Answer 16

• 13 year old fell from tree on a rope and broke his hip. Hospital failed to diagnose complication leading to long term condition (avascular necrosis)
• Courts held there would have been a 75% of this happening anyway. Damages therefore should be calculated on the basis of 25% of the full cost

Question 17

What can we learn from the case of Gregg v Scott?

Answer 17

• Doctor failed to diagnose lump under patient’s arm as maligant and treatment was delayed for 9 months (42% of long term survival if correct diagnosis)
• Delay in treatment reduced LT survival to 25%
• Sought damages on the basis of a 17% loss of chance for LT survival [therefore HOL reject lost chance appraoch]

Question 18

Provide example cases in situations of concurrent events and consecutive events.

Answer 18

• Concurrent (claimant subject to two simultaneous acts) - Cooke v Lewis, Hale v Hants and Dorset Motor, Fitzgerald v Lane
• Consecutive (tortious act injuring claimant and something completely unrelated overtakes original injury) - Baker v Willoughby, Jobling v Associated Dairies