Negligence: Factual Causation Flashcards
Remember the four questions when discussing negligence: 1. Is there a duty of care? 2. Has there been a breach? 3. Is there actionable damage? 4. Are there any defences?
BAI (Run Off) v Durham (2012)
Lord Mance links rules regarding with common sense: “Rules regarding causation are created by the courts for the purpose of determining when liability arises in particular contexts. Normally, they reflect a common sense understanding of what is ordinarily understood when we speak of a cause in a particular context” [55].
Barnett v Chelsea & Kensington Hospital Mgmt Committee (1968)
B’s tea was laced with arsenic by an unknown murderer. The doctor (D’s employee) refused to see him when he visited the hospital, and B was sent away. B died from poisoning. His wife sued the hospital.
Was the test of causation satisfied? It was held not - by the time they got to the hospital, it was already too late to administer the antidote to arsenic: no matter what the doctor did, they could not save their life.
It was negligent in refusing to admit B, but no damages were available.
Bonnington Castings Ltd. v Wardlaw (1956)
This case is the leading authority for an exception in the law of negligence made specifically for the multiple cumulative causes dilemma. As such, it is enough to show that D materially contributed to the harm suffered by C:
“It appears to me that the source of his disease was the dust from both sources [where one source of dust exposure was due to negligence, and one wasn’t], and the real question is whether the dust from the swing grinders materially contributed to the disease. What is a material contribution must be a question of degree…A contribution which comes within the exception de minimis non curat lex is not material, but I think that any contribution which does not fall within that exception must be material. I do not see how there can be something too large to come within the de minimis principle yet too small to be material” (Lord Reid at [621])
Holtby v Brigham & Cowan (Hull) Ltd. (2003)
This case concerned a divisible injury (i.e. the severity of the disease is related to the quantity of the agent that is ingested). A claimant who sought damages for injuries suffered by the ingestion of asbestos whilst working for one employer, but had also worked for other periods for other employers where similar activities had been involved, had the onus in the claim to prove causation. It might be impossible to apportion the damage exactly, but he must demonstrate a substantial contribution from the defendant. Having been found responsible in this way, the employer would be responsible only to the extent of his contribution to the asbestosis. Each tortfeasor should be responsible only for the proportion which its exposure contributed to the damage. This is seen in Stuart-Smith LJ judgement: “[The claimant] will be entitled to succeed if he can prove that the defendant’s tortious conduct made a material contribution to his disability. But strictly speaking the defendant is liable only to the extent of that contribution… in my view, the court must do the best it can to achieve justice, not only to the claimant but also to the defendant, and among defendants” [20].
Bailey v MOD (2008)
A ‘weakness’ developed within C due to a negligent operation (to remove gallstones) and post-op care. Combined with an entirely unconnected pancreatitis, a ‘state of weakness’ occurred which caused C to not be able to clear her air passages whilst vomiting. She chocked and suffered brain damage (thus, an example of an indivisible injury).
It was held that in this situation if you can show the material contribution to harm from both causes, to cumulative effect equates to liability. The ‘but for’ test is therefore somewhat relaxed when there is inherent uncertainty. Waller LJ states: “The instant case involved cumulative causes acting so as to create a weakness and thus the judge [from the High Court] in my view applied the right test, and was entitled to reach the conclusion he did” [47].
Williams v The Bermuda Hospitals Board (UK Privy Council) (2016)
C suffered complications after surgery to remove appendicitis resulting from sepsis, which evolved due to the delay in treatment. He alleges the delay amounts to negligence.
The PC uses this case to review the law of material contribution to harm (where there is more than one cause). Lord Toulson stresses that we need to think about the sequence of events; e.g. whether a later event has made a material contribution to the outcome, or whether an earlier event has been “so overtaken by later events as to not have made a material contribution to the outcome.” He further states that “as a matter of principle, successive events are capable of each making a material contribution to the subsequent outcome” [39].
The UKPC further notes that a claim will fail if the most that can be said is that the claimant’s injury is likely to have been caused by one or more of a number of disparate factors, one of which was attributable to a wrongful act or omission of the defendant. Accordingly, the claimant will not have shown as a matter of probability that the factor attributable to the defendant caused the injury. It was found that because this was an indivisible condition, it was not possible to say that the delay caused the sepsis, but it was possible to conclude that on the ‘balance of probabilities’ the delay materially contributed to the condition. The Judges concluded that as a matter of fact, a third of the sepsis (i.e. the 2-hour delay) was a material contribution to the condition.
Commenting on Bailey, the PC did not share the view of the CoA that the case involved a relaxation of the ‘but-for’ test and considered that Bailey was decided on its own facts. The Judges concluded that the totality of the Claimant’s weakened condition caused the harm and accordingly the case would succeed on the “but-for” test. There was, therefore, no need to widen the ‘but for’ test as the Court of Appeal had sought to do.
Petroleum Co. of Trinidad and Tobago v Ryan (UKPC) (2017)
Here, it was held on appeal that the petroleum company was not liable for C’s respiratory problems (allegedly) due to the hydrocarbon emissions from a disused oil well. Since no link had been established between the emissions and the damage claimed, the Board held that it was not possible to apply a flexible approach to causation on policy grounds taking into account public awareness of environmental issues and the responsibilities of polluters.
McGhee v National Coal Board (1972)
Exposure to brick dust whilst working. Ds did not provide showers for the end of the day. Therefore some of the exposure was not negligent, some of it was. In this case, the more you were exposed, the greater the risk was of you contracting a disease - science cannot provide us with the ‘tipping point’.
Held that you can still recover. Lord Salmon writes that the distinction between the material increase of risk and the material contribution to harm is “unrecognised by the common law” (at p. 12-3). However, this statement is surely wrong, as Fairchild shows.
Fairchild v Glenhaven Funeral Services (2002)
Cs were exposed to asbestos dust during the course of employment with more than one contractor. They contracted mesothelioma as a result of the exposure. It was medically impossible to determine which of the employers had exposed Cs to the particular dust (containing the ‘fibres’ of asbestos) which caused the cancer. All we know is that the more you are exposed to asbestos, the greater the risk of you developing cancer.
The CoA held that if one applied the ‘but for’ test, Cs’ claims failed on the balance of probabilities (however, if there was only one tortfeasor, the Cs would have been able to claim) (Lord Bingham at [9]). So the question here is: does the claim fail because we cannot say “but for A’s neglect, C would not have developed the cancer”?
In short, no. This case establishes the so-called ‘Fairchild exception’ to the ‘but for’ test, regarding the material contribution to the risk of harm (via asbestos exposure) (Lord Bingham at [2]). This is nicely summed up by Lord Roger at [168]: “Following the approach in McGhee I…hold that, by proving that the defendants individually materially increased the risk that the men would develop mesothelioma due to inhaling asbestos fibres, the claimants are taken in law to have proved that the defendants materially contributed to their illness.”
The question, then, turns to whether this ‘opens the floodgates’; now everyone wants an exception! Perhaps recognising this, Lord Rodger goes on to narrow the applicability of Fairchild: the case has to fall within evidential uncertainty, and the potential causes must be the same agent (asbestos) or an agent that operates in fundamentally the same manner [170]. Lord Nicholls stresses the need for the limited application of Fairchild, recognising how it can quickly become a “source of injustice to defendants” if viewed simply as a ‘relaxation measure’ “whenever a plaintiff has difficulty, perhaps understandable difficulty, in discharging the burden of proof resting on him” [43].
Barker v Corus (2006)
This case has facts very similar to Fairchild, except that C’s husband had been exposed to asbestos during periods of self-employment too. As such, some of the exposure could be C’s own fault. Moreover, some of the defendant employers were by now insolvent. The issues here are thereby:
Whether Fairchild could apply to C’s claim;
And if so, how are damages to be assessed? (In Fairchild, it was assumed that if you can establish liability against one defendant, that are liable in full (D can thereafter seek contributions from others))
It was raised here that we should modify the extent of liability: we should bear in mind the relative harshness of finding D fully liable, and allow that D is only liable for the extent of exposure. This was accepted (whilst still allowing C to recover - as such, the Fairchild exception could still operate even though not all of the potential causes of damage were tortious, and a non-tortious source of risk did not have to be created by someone who was also a tortfeasor) (Lord Hoffman at [31]).
Lord Hoffman believed that this approach was ‘less harsh’ than attributing full blame on ‘the last D standing’:
“In my opinion, the attribution of liability according to the relative degree of contribution to the chance of the disease being contracted would smooth the roughness of the justice which a rule of joint and several liability creates”
“The justification for the joint and several liabliity rule is that if you caused harm, there is no reason why your liability should be reduced because someone else also caused the same harm. But when liability is exceptionally imposed because you may have caused harm, the same considerations do not apply and fairness suggests that if more than one person may have been responsible, liability should be divided according to the probability that one or other caused the harm” [43].
Lord Rodger provides a powerful dissent that illustrates the disagreement between the two Lords on what Fairchild stood for [71]. Lord Rodger begins by stating that negligence requires damage; making things ‘more likely’ is not actionable unless you suffer the relevant damage. You should therefore not consider risk in the ‘abstract’; the risk is part of the causal test in establishing negligence: “The defendant was liable for causing the mesothelioma, not for causing the risk of developing mesothelioma: the damage was the mesothelioma, not the risk of developing mesothelioma” (regarding Fairchild) [68].
Indeed, the whole point of Fairchild was to allow the Cs to claim; the ‘proportion to exposure’ argument is therefore wrong. Lord Rodger worried that “as a result [of the majority approach], claimants will often end up with only a small proportion of the damages which would normally be payable for their loss. The desirability of the courts, rather than Parliament, throwing this lifeline to wrongdoers and their insurers at the expense of claimants is not obvious to me” [90].
The Compensation Act 2006 [also seen in Breach of Duty deck]
s.3 of this Act specifically reverses the decision in Barker (i.e., agreeing with Lord Rodger!) - but only in relation to mesothelioma cases.
s. 3(1): ‘This section applies where -
(a) a person (“the responsible person”) has negligently or in breach of statutory duty caused or permitted another person (“the victim”) to be exposed to asbestos,
(b) the victim has contracted mesothelioma as a result of exposure to asbestos,
(c) because of the nature of mesothelioma and the state of medical science, it is not possible to determine with certainty whether it was the exposure mentioned in paragraph (a) or another exposure which caused the victim to become ill, and
(d) the responsible person is liable in tort, by virtue of the exposure mentioned in paragraph (a), in connection with damage caused to the victim by the disease (whether by reason of having materially increased a risk or for any other reason).’
s. 3(2): ‘The responsible person shall be liable -
(a) in respect of the whole of the damage caused to the victim by the disease (irrespective of whether the victim was also exposed to asbestos -
(i) other than by the responsible person, whether or not in circumstances in which another person has liability in tort, or
(ii) by the responsible person in circumstances in which he has no liability in tort), and
(b) jointly and severally liable with any other responsible person.’
s.16(3): ‘Section 3 shall be treated as having always had effect.’
s. 16(4) ‘But the sections shall have no effect in relation to -
(a) a claim which is settled before 3rd May 2006 (whether or not legal proceedings in relation to the claim have been instituted), or
(b) legal proceedings which are determined before that date.’
(s.16(4a) explicitly acknowledges Barker v Corus - 3/5/2006 was the date the case was decided)
Sienkiewicz v Grief (2011)
Apparently, just by living in the Wirral you have a higher exposure to asbestos than normal.
The Court took this case as an opportunity to revisit Barker: holding that these exceptions only apply for as long as we have scientific uncertainty (i.e. an evidential gap) - as such, the Fairchild/Barker rule + s3 CA 2006 “does not preclude the courts from reverting to the conventional approach of balance of probabilities in mesothelioma cases should advances in medical science in relation to this disease make such a step appropriate” (Lord Phillips at [70]).
Lord Rodger believes that it is important to bear in mind how the judges in Fairchild considered the exception to be a “proper balance between the interests of claimants and defendants in these cases.” Despite the “harrowing nature” of this illness, he warns that judges should not take a “lax approach” towards the proof of the essential elements necessary for negligence; that would “only result in the balance struck by the Fairchild exception being distorted” [166].
Lord Brown goes on to state that the Courts “tamper with the “but for” test of causation at its peril” [186].
The Trigger Litigation (2012)
The difficulty here is that if we say each tortfeasor is liable - but you can only ‘trigger’ insurance cover once you have developed the illness - how does this affect the length of insurance contracts (since e.g. mesothelioma has a long latency period)?
It is held that it is ‘enough’ to trigger insurance if one can show relevant exposure during the policy period - even if the illness develops later. Lord Mance writes that the “concept of a disease being “caused” during the policy period must be interpreted sufficiently flexibly to embrace the role assigned to exposure by the rule in Fairchild” [74].
Wilsher v Essex Area HA (1988)
This case provides for a limitation on Fairchild. Here, a baby developed a serious eye condition. There were many possible causes, one of which could have been due to negligence by the hospital. It was held that the claimant couldn’t satisfy the causation test. The general rule, therefore, is that if there is more than one thing that could have caused the injury, you haven’t proved your case (Browne-Wilkinson VC p. 779 - dissenting in the CoA, endorsed by the HoL). Fairchild is, therefore, a very narrow exception.
Heneghan v Manchester Dry Docks (2016)
In this case, C developed (another form) of lung cancer as a result of exposure to asbestos. This exposure was omitted by several different employers. Lord Dyson held that he could see no reason not to apply the Fairchild exception to this case, as it was not “materially different” [48]. However, it was decided that joint and several liability did not apply here, as the CA 2006 only applied to mesothelioma cases. Thus, the claim was only successful to 32.5% of the damage.
