Tort of Negligence: Causation and Remoteness Flashcards
Preliminary points
• The last two steps C will have to take in establishing negligence is that there is causation of his damage and his damage is not too remote
• Causation is different from remoteness
• Stapleton: factual causation concerns the ‘but-for’ test. Legal causation concerns novus actus, and issues of remoteness. The latter is a normative enquiry drawing the line between recoverable and irrecoverable damage
• ZCT: the steps for C are therefore as follows
(a) Establish factual causation using the ‘but-for’ test
(b) Establish legal causation (no novus actus etc)
(c) Show that the damage is not too remote
Establishing factual causation
The orthodox ‘but-for’ test
• The test is whether, on the balance of probabilities, C would have suffered the damage but for D’s breach of DOC. C has to demonstrate that there is more than a 50% likelihood of the cause being the breach of duty by D.Loss of chance is generally irrecoverable in personal injury cases, but recoverable in consequential economic loss cases.
Establishing factual causation
The orthodox ‘but-for’ test
Barnett v Chelsea & Kensington Hospital Management Committee [1969]
ϖ H (night-watchman) went to D’s hospital after drinking tea and becoming ill. The nurses on duty told the doctor, and the casualty office told C to go home and go to the GP if he was still sick the next morning. Several hours later H died from arsenic poisoning. It transpired that the tea was contaminated with arsenic and it ultimately caused death to H the other morning. Is D liable? D argued that H must have died in any event. C sued on behalf of H as his wife. Held: Neild J: the onus of proof rests on C. It was said that the only way ti deal with the arsenic poisoning is to use the specific BAL antidote, but there was no reasonable prospect of C given it before the time at which he died. According to the facts, as there was no chance of BAL being administered before the death of C, C has failed to establish on the grounds of probability that D’s death caused the death of H!
Establishing factual causation
The orthodox ‘but-for’ test
Hotson v East Berkshire AHA [1987]
loss of chance; balance of probabilities) C (13) injured his hip after falling from the tree as was hospitalised by D. His injury was undiagnosed. C suffers severe pain and is taken to the hospital again 5 days later. C was suffering from avascular necrosis which resulted in a deformity to his hip. C sued D for delaying the treatment. C argued the doctors acted negligently and he suffered gross injury. D argued that the delay did not affect C’s ultimate condition. FI Held: C had a 25% chance of avoiding avascular necrosis if he had been diagnosed right away. The trial judge awarded 25% of the damage. HL Held: the trial judge is wrong! The burden of proof is the balance of probabilities. There was 75% chance that he would have suffered the deformity in any case. Hence, the deformity was not caused by the breach of duty. C had to show that it was more likely that he suffered deformity because of the breach of duty
Establishing factual causation
The orthodox ‘but-for’ test
Hotson v East Berkshire AHA [1987]
Lord Bridge
Lord Mackay
Lord Ackner
Lord Bridge: there are formidable difficulties in the way of accepting the analogy between the contract cases of loss of chance (Chaplin v Hicks) and tort. There is no principle to entitle D to discount from the full measure of damage to reflect the chance that Cs necrosis might well still have developed.
Lord Mackay: following Mallett v McMonagle, in determining what did happen in the past the court decides on the balance of probabilities. Anything that is more probable than no it treats as certain. Loss of chance would not be recoverable for the present cause.
Lord Ackner: the debate on the loss of chance cannot arise when there has been a positive finding that, before the DOC arose, the damage complained of had already been sustained or become inevitable! C was unable to prove on the balance of probabilities that his deformed him was caused by D’s breach in delaying over a period of 5 days the proper diagnosis and treatment!
Establishing factual causation
The orthodox ‘but-for’ test
Hotson v East Berkshire AHA [1987]
(loss of chance) D misdiagnosed a lump under C’s left arm as harmless, thus leading to delay in treatment of 9 months during which the disease had spread. There was a malignant tumour. During those 9 months, C’s chances of recovery (within the next 10 years) wasreduced to 25% (up to the date of trial). However, even if C had been correctly diagnosed or referred to the specialist by the GP without the delay, C’s chance of recovery would still have been 45% only. C argued that 1) the delay caused the tumour to grow, meaning that he suffered a physical injury, and 2) that the court should revisit Hotson, arguing that Fairchild(mesothelioma case) has changed the law with regard of policy reasons, making loss of chance of recovery compensable per se. HL Held: Loss of chance is NOT recoverable.Hotson is followed. There are pragmatic problems to recognise that loss of chance is recoverable:
Gregg v Scott [2005]
Baroness Hale
1) Hotson: C’s claim is for the reduced chance of achieving recovery. In Hotson, D had not even caused the loss of the chance because by the time C got to the hospital there was already no chance. Hence, this Gregg case is a new case not covered by previous authority.Hotson was distinguishable!
2) Reformulation ‘abuse’ argument: Compare the loss of a chance approach: my negligence probably caused a reduction in the chance of your keeping that leg: I pay you the value of the loss of your leg, discounted by the chance that it would have happened anyway. If the chance of saving the leg was very good, say 90%, the claimant still gets only 90% of his damages, say £90,000. But if the chance of saving the leg was comparatively poor, say 20%, the claimant still gets £20,000. So the claimant ends up with less than full compensation even though his chances of a more favourable outcome were good. And the defendant ends up paying substantial sums even though the outcome is one for which by definition he cannot be shown to be responsible. The result of this is that almost any claim for loss of an outcome could be reformulated as a claim for loss of a chance of that outcome!!That is, the claimant still has the prospect of 100% recovery if he can show that it is more likely than not that the doctor’s negligence caused the adverse outcome. But if he cannot show that, he also has the prospect of lesser recovery for loss of a chance. If (for the reasons given earlier) it would in practice always be tempting to conclude that the doctor’s negligence had affected his chances to some extent, the claimant would almost always get something. It would be a “heads you lose everything, tails I win something” situation. D will almost always be liable for something! This would surely be a case of two steps forward, three steps back for the great majority of straightforward personal injury cases! Mitchell: so what she is saying is that the 50% threshold must be maintained for C to sue.
3) Implications of loss of chance recovery: Negotiations and trials would be a great deal more difficult, as C will always pursue the loss of chance argument till the end. Recovery would be much less predictable both for claimants and for defendants’ liability insurers. Introducing itwould cause far more problems in the general run of personal injury claims than the policy benefits are worth.
4) Uncertainty argument: The approach to causation should be the same for both past and future events. What, if anything, has the doctor’s negligence caused in this case? We certainly do not know whether it has caused this outcome, because happily Mr Gregg has survived each of the significant milestones along the way. Can we even say that it reduced the chances of a successful outcome, given that Mr Gregg has turned out to be one of the successful minority at each milestone? ZCT: so the argument is, if you say that I’ve caused you loss of chance of recovery, but at the very end you recovered, what is the value of the loss? If my chance of recovery is 100%, and you lowered it to 99%, it seems unreasonable that you have to compensate me for it because I’ll most likely recover anyways!
Gregg v Scott [2005]
Lord Hoffmann
Lord Hoffmann:
1) Hotson: The issue is whether Chaplin v Hicks can apply to clinical negligence. Hotson is indistinguishable.
2) Precedent issue: allowing loss of chance recovery would involve abandoning a good deal of authority! Therefore this suggestion was rejected in Hotson, Wilsher v Essex AHAand Fairchild v Glenhaven Funeral Services. There are no new arguments to justify the departure from precedent
3) Control mechanisms: C argues that his injury can be a ‘hook’ on which to hang a claim for damages which it did not actually cause. This is an artificial limitation lacking in principle! It resembles the control mechanisms which disfigure the law on PI. There will also be definition problems about ‘injury’ – e.g. Wilsher’s excessively oxygenated blood.
Gregg v Scott [2005]
Lord Philips
1) Hotson: Hotson was distinguishable, as the claim there was for the adverse outcome rather than for the loss of chance of avoiding that outcome. Oliphant: but this does not say when C can choose the first rather than the latter
2) Procedural history argument: Before the trial, however, it was discovered that Mr Gregg had a rare type of cancer with a less favourable prognosis. This led Mr Gregg to advance an alternative claim for damages for the reduction of the chance of a favourable outcome. Mitchell: It is not sensible to ignore what has happened between the moment when the breach occurred and the date of trial. Here, C is still alive after the treatment and when he’s suing. Allowing the recovery of loss of chance will be admitting the arbitrary factor of how long it takes for the case to get to court! Randomness is the antithesis of justice. This is because C’s chance of recovery has gone back to 25% (from 17%) by the time he sues! ZCT: the concept is that, if it takes C 1 more month before he gets to court and continues to receive medical treatment, C’s chance of recovery usually rises (during remission).
3) Uncertainty argument: Awarding damages for the reduction of the prospect of a cure, when the long term result of treatment is still uncertain, is not a satisfactory exercise.
Gregg v Scott
Lord Nicholls (dissenting):
where a patient is suffering from illness or injury and his prospects of recovery are attended with a significant degree of medical uncertainty, and he suffers a significant diminution of his prospects of recovery by reason of medical negligence whether of diagnosis or treatment, that diminution constitutes actionable damage. The old law is irrational and indefensible! C was clearly worse off! D’s negligence deprived C of a worthwhile chance that his medical condition would not have deteriorated. The appropriate characterisation of a patient’s loss in this type of case must surely be that it comprises the loss of the chance of a favourable outcome, rather than the loss of the outcome itself. Justice so requires, because this matches medical reality. This recognises what in practice a patient had before the doctor’s negligence occurred. It recognises what in practice the patient lost by reason of that negligence. The doctor’s negligence diminished the patient’s prospects of recovery. Of course, losing a chance of saving a leg is not the same as losing a leg; but that is not a reason for declining to value the chance for whose loss the doctor was directly responsible. The law would rightly be open to reproach were it to provide a remedy if what is lost by a professional adviser’s negligence is a financial opportunity or chance but refuse a remedy where what is lost by a doctor’s negligence is the chance of health or even life itself. This is so whether the patient’s prospects immediately before the negligence exceeded or fell short of 50%
Gregg v Scott
Lord Hope (dissenting):
the growth of the tumour was a damage in negligence. The loss of chance of avoiding the cancer was a damage consequential upon the physical injury! Oliphant: this argument was rejected in Grieves v Everard, where the development of asymptomatic pleural plaques amounted to physical damage!
Gregg v Scott
Commentary
Commentary: civil litigations are decided on the balance of probabilities. In practice, Cs can often get over 50% as medical evidence in medical negligence cases does not work to make for 100% certainty. Hence, if this is allowed, every C may sue for a mere 10% loss. Trials of medical evidence will be much less predictable and much more difficult. There will be too much litigation and risk of unfairness to D!
Oliphant:1) what Hotson and Gregg were trying to do is to ‘reframe’ the loss in question so as to satisfy the ‘but-for’ test. Instead of alleging injury, they allege that the loss as ‘loss of chance’ of avoiding the injury. The uncertainty in this case was what caused the reduced expectation of life. The delay had increased the chance of a premature death but was not enough to enable C to say that, on the balance of probabilities, it would not otherwise have happened.2) there is uncertainty as to when C might be said to have lost a chance! 3) the other difficulty in accepting loss of chance lies in assessing a value to be given to the chance.4) the problem is in the ‘balance of probability’. If C’s chance is 60%, C receives 100% if reward; if C’s chance is 40%, C receives only 40%. This seems arbitrary.
Voyiakis: ‘knowing how much risk I have caused on and how much compensation I owe you if I had caused you actual physical harm does NOT by itself suggest how much I should pay for having exposed your physical health to danger’!ZCT: what is wrong with this? There does not seem to be alternatives either.
Hoffmann: (the time argument) if C had died just before the trial, his executor would have to prove that the delay had probably hastened his death. If C was alive, it would be sufficient to prove there was a substantial possibility that the delay hastened his death. This makes no sense!
Allied Maples v Simmons & Simmons [1995]
ϖ economic loss of chance) C sued D for failing to advise on the deletion of a warranty in a sales agreement between C and X which deprived C of protection of contingent liabilities to X. D argued that its negligence did not cause C damage as it could not be shown on the balance of probability that X would have accepted the warranty Held: Stuart-Smith LJ: C had to show it would have relied on the advice if given. It is NOT necessary to show that X would have given some protection to C. It was enough that a substantial chance was lost. Compensation ordered. Rule: lost chance that the outcome would have been avoided by the action of a third party even if that chance were less than 50%.Commentary: Coote: it is acceptable to allow claims for loss of chance where the injury is economic loss because the chance itself has an economic value. No artificiality found in the case of physical harm is involved.
Stapleton: 1) Odd result: Say a manufacturer fails to warn that its non-prescription sunscreen product should not be used in salt water. A father buys the product. He applies it to himself and his infant child before they swim in the ocean. As a result both suffer skin injury. Suppose the evidence is that even if the manufacturer had given a careful warning there was only a 20 per cent chance that the father would have read and heeded it. According to
Allied Maples, it seems, the infant can recover for the 20 per cent chance that, had the manufacturer been careful, the third party (the father) would have read and heeded its careful warning. The father cannot recover at all.
Potentially contradictory to Hotson:
Suppose the negligence of D exposed E to asbestos and in E’s trade a quarter of employers are unwilling to employ persons who have been exposed to asbestos. Employment in this trade is short-term. Can E sue now on the basis that he has lost a chance of future employment? ZCT: hence, a loss of chance in health may be alternatively framed as a loss of chance in economic loss, and thus becomes recoverable!
Wright v Cambridge Medical Group [2012]
ϖ medical negligence) C (minor) was hospitalised and her disease was not diagnosed until 3 days later, during which it spread and C was discharged from the hospital. D later conceded negligence, and that if he had seen C he would or should have referred C to the hospital. C was later hospitalised and given a blood culture but by then C suffered permanent injury to the hip. C argued that had she been treated appropriately in hospital she would have made a good recovery without permanent injury. Can D argue that if he had not been guilty of the negligence complained of, he would have caused injury anyway by another type of negligence? Held: No! If D could succeed on this point, it would deprive C of the right to claim damages for the subsequent negligence! That, where a claimant had suffered permanent damage which had been caused partly by late referral by a general practitioner and partly by the inadequate treatment which she had received in hospital, it might be possible for the general practitioner to escape liability for the permanent damage by showing that that was due to the hospital’s failure to treat her competently; that there was a presumption that, had she been referred timeously, the claimant would have received competent and appropriate treatment at the hospital and, in so far as that presumption was rebuttable, the burden was on the general practitioner to rebut it. On the facts, D had failed to discharge that burden and so it could not be inferred that, had the claimant been referred to the hospital on the date when she should have been, she would have received inadequate treatment and would still have suffered the permanent injury which she had in fact sustained
Elias LJ and Neuberger LJ: Gregg’s ‘no loss of chance recovery’ ruleis applied in clinical negligence cases! Allied Maples should not be applied to personal injury cases.
Commentary: Oliphant: what if D’s negligence was failing to contact doctor X to examine patient C, and X would have done things differently? Lord Neuberger (minority) thought that there was an irrebutable presumption that the subsequent treatment will be performed WITHOUT negligence!
Material contribution to injury
- Although loss of chance remains irrecoverable, the courts have accepted that D1 and D2 may cumulatively cause the damage to C. It is not necessary to show but for causation in relation to D1, but the breach by both of them must have made the injury worse. What is not negligible is ‘material’.
- By contributing to C’s injury in more than a trifling way, C can prove causation against D, even if but-for causation is not made out. Proportional damages may be awarded if C’s injury is divisible, but probably not for RPIs.
Bonnington Castings v Wardlaw [1956]
material contribution
ϖ (full damages) C works in a workshop belonging to D. C contracts pneumoconiosis as a result of inhaling silicone dust coming from i) dust in workshop generated by a pneumatic hammer with no protection ii) swing grinders. D was not negligent for i) because there was no known protection against dust produces in this way, but was negligent for ii) as he should have installed extractor fans. Medical evidence shows that the pneumoconiosis is caused by a gradual accumulation of the silica particles (i.e. the whole of the noxious material inhaled). It cannot be wholly attributed to one source or the other. So was the swing grinders’ dust alone the cause of C’s disease? HL Held: Lord Reid:
1) C must prove D’s fault caused, or materially contributed to his injury. The same causative rules apply to breach of statutory duties. The question here is whether the dust from the swing grinder materially contributed to the disease.
2) This is a question of degree – it must not fall under the exception de minimis non curat lex (the law does not concern itself with trifles). Here the swing grinder dust was not negligible!
3) Even if more of the noxious dust came from the pneumatic hammers, here it can be sufficiently proved that the dust from the grinders made a substantial contribution (not negligible) to the concentration of noxious dust in the air C inhaled, and thus help to produce the disease
4) C was entitled to full damages
Commentary: Bailey: doubtless the accumulation of dust was sufficient to cause the injury. Miller: the decision is not dependant on the knowledge of the magnitude, or even existence, of a threshold of relationship which links dust concentration with the disease. Oliphant: what is problematic is that C was awarded full damages! Mitchell: Here, D is liable even though the ‘but-for’ causation cannot be satisfied. There is a material contribution to injury. ZCT: 1) does this reduce causation to a cause (albeit not a trivial one)?2) the ‘material’ threshold here is correct: if 1000 people hurl abuses at V and V suffered RPI because of the cumulative effect of the (say) equally abusive comments, should there be material contribution? If my 50% test is used, then there is clearly no liability. Lord Bingham’s perception of fairness will clearly not allow this to happen! But here V’s injury is indivisible – and so the 1000 people cannot be jointly and severally liable under the apportionment approach. So it seems that the ‘material’ threshold should be beyond de minimis for justice to be done.
Holtby v Brigham [2003]
(proportional liability) C developed asbestosis as a result of occupational exposure to asbestos dust after working for D for 12 years and X for 5 years. CA Held: each employer could only be liable in proportion to C’s total disability. There was divided responsibility on the ‘time-exposure’ basis. The award of full damages in Bonnington was because the question of apportionment had simply not been raised! Stuart-Smith LJ: the court only has to do the best it can using its common sense to achieve justice, not only to C but D. Commentary: Oliphant: note that proportional damages are awarded ONLY IF the injury is divisible. Holtby’s effect is to throw the risk of untreaceability of individual Ds onto C who must sue both D1, D2 and all others to recover full damages! Gullifer: but what if the tortious and innocent exposure are concurrent as in Bonnington? There will be evidential difficulties in assessing D’s contribution.
Rahman v Arearose Ltd [2001]
(Proportionate damages) C beaten up during work for which D was responsible. He received negligent hospital treatment and became blind and suffered various RPIs due to the attack and the loss of his eye. CA Held: the two events had a synergistic interaction – both D and the hospital were liable for some harm. Responsibility should be apportioned. Proportionate damages awarded to C. Commentary: Weir: there is no scientific basis for such attribution of causality: C is not half-mad because of what D1 did and half-mad because of what D2 did. ZCT: Weir is saying that RPIs cannot be divisible injuries in this case. Mitchell: this is because the injuries are divisible (e.g. back injury and arm injury)!
Hatton v Sutherland [2002]
RPI; Proportionate damages) Hale LJ: many stress-related illness are likely to have a complex aetiology with several different causes. In principle D should pay only for that proportion of harm suffered for which he by his wrongdoing is responsible! Commentary: the approach here was criticised in Dickins v O2
Simmons v British Steel [2004]
ϖ HL Held: D (suffering RPI) was held 100% responsible under the Bonnington ‘material contribution’ test.
Barker v Chorus [2006]
ϖ Lord Walker: yet damages may not always be divisible. Commentary: Keeler: Bonnington is an example, the loss was C’s incapacity to perform his usual work. Can RPI be ‘divisible’ injuries?
Ellis v Environment Agency [2008]
ϖ May LJ (CA) Held: the proportionate damage approach should be
1) Confined to industrial disease or injury cases where there has been successive exposure to harm by different agencies
2) Where the effect of the harm is divisible
3) Where it would be unjust for D to bear the whole loss
Bailey v MOD [2009]
C (suffering from pancreatitis) was negligent treated in hospital and was unable to clear vomit in her throat due to her weakened state. Her chocking caused a cardiac arrest leading to brain damage. CA Held: the injury was indivisible. The brain damage cannot be divided up and part attributed to any particular cause, but to 2 of the causes. Walker LJ: D’s negligence made a material contribution to C’s weakened condition, and her subsequent choking. There was causation! Commentary: Bailey: the ‘material contribution’ test should be confined to ‘but for’ in the normal way for the sake of coherency in the law. Stapleton: damages should not make D better off than he would have been if he had not become the victim of tort. Otherwise doctors will be more likely to be liable by some non-negligible but unassessable degree if C suffers an indivisible injury! Miller: the framing of scientific evidence is important in these cases. It is only when D’s negligence is presented as cumulative causes, NOT alternative causes of D’s injury that the Hotson test can subrogated by Bonnington.
Material contribution to risk (of injury already suffered by C)
• When it is proved, on a balance of probabilities, that D’s negligence has materially increased the risk of Csuffering an injury, then D is liable if C [actually] suffers the injury notwithstanding that D is not responsible for other factors which have materially contributed to the injury. A breach of duty which increases the risk of damage is enough for causation! Epidemiological evidence, even if accurate and reliable, will NOT be conclusive on the issues of causation!
McGhee v NCB [1973]
ϖ NCB told C to clean out brick kilns and C was exposed to brick dust, causing him to contract dermatitis. Instead of going to shower, C cycled home and his sweat reacted with the dust. This is because D negligently failed to provide C with shower (breach of duty). Medical evidence shows that it is unknown whether it is the exposure or the sweat reaction which caused the disease, but both explanations are possible and that the sweat reaction had added materially to the risk that C might develop dermatitis. The ‘but-for; test cannot yield any definitive answer due to the lack of evidence. Held: C only had to demonstrate that the dust attributable to the breach of duty materially increased the risk of him contract dermatitis. Lord Reid: there is no evidence how the dermatitis begins. In cases like this we must take a broader view of causation. Lord Salmon: as a rule, when it is proved, on a balance of probabilities, that an employer has been negligent and that his negligence has materially increased the risk of his employee contracting an industrial disease, then he is liable in damages to that employee if he contracts the disease notwithstanding that the employer is not responsible for other factors which have materially contributed to the disease. Commentary: old test or new test? The new test argument is that the test is ‘material contribution to risk’ Stapleton: the courts are allowing C to jump the evidentiary gap, otherwise D will go scot-free and this will offend the notion of distributive justice! The normative ground for the rule, as recognised by the courts, is that there must be an exception to the orthodox but-for causation! Here, artificial apportionment was not argued, and hence D was liable in full by default!
Fairchild v Glenhaven Funeral Services Ltd [2003]
ϖ It was common knowledge in the construction industry that asbestos inhalers may cause lung diseases and cancer. Asbestos are good insulators of heat and are usually lagged around hot pipes. During employment by several different employers, C was exposed to asbestos dust. Mesothelioma can be caused by a single asbestos fibre or an accumulation of them. C suffered from mesothelioma but the doctors’ evidence could not support but-for causation – it could well have been a cancer fibre passed onto him by X, and it could not be said that the exposure was a material contribution to the disease. Yet the doctor did know that the more likely C was exposed to asbestos, the more likely C would contract the disease. C was unable to demonstrate, and medical science was unable to detect, which employer exposed each of them to the one fatal fibre. HL Held (4:1): If C could demonstrate that one employer had materially increased the risk of contracting mesothelioma they were entitled to claim full compensation from that one employer.
Fairchild v Glenhaven Funeral Services Ltd [2003]
Lord Bingham:
1) Issue: If (1) C was employed at different times and for differing periods by both A and B, and (2) A and B were both subject to a duty to take reasonable care or to take all practicable measures to prevent C inhaling asbestos dust because of the known risk that asbestos dust (if inhaled) might cause a mesothelioma, and (3) both A and B were in breach of that duty in relation to C during the periods of C’s employment by each of them with the result that during both periods C inhaled excessive quantities of asbestos dust, and (4) C is found to be suffering from a mesothelioma, and (5) any cause of C’s mesothelioma other than the inhalation of asbestos dust at work can be effectively discounted, but (6) C cannot (because of the current limits of human science) prove, on the balance of probabilities, that his mesothelioma was the result of his inhaling asbestos dust during his employment by A or during his employment by B or during his employment by A and B taken together, is C entitled to recover damages against either A or B or against both A and B? It is accepted that the risk of developing a mesothelioma increases in proportion to the quantity of asbestos dust and fibres inhaled: the greater the quantity of dust and fibre inhaled, the greater the risk: but C could have inhaled a single fibre giving rise to his condition during employment by A, or by B, or by both A and B together. We don’t know.
2) Overall principle of tort law: The overall object of tort law is to define cases in which the law may justly hold one party liable to compensate another. But should we deny C of any remedies outright due to the evidential uncertainties?
3) *****Conflicting policy objectives: It can properly be said to be unjust to impose liability on a party who has not been shown, even on a balance of probabilities, to have caused the damage complained of. On the other hand, there is a strong policy argument in favour of compensating those who have suffered grave harm, at the expense of their employers who owed them a duty to protect them against that very harm and failed to do so. Such injustice as may be involved in imposing liability on a duty-breaking employer in these circumstances is heavily outweighed by the injustice of denying redress to a victim!!! Giving immunity to D would reflect no credit on the law
4) Answer to issue: C is entitled to recover against BOTH A and B for any sum less than the full compensation to which C is entitled, although A and B could seek contribution against each other. The conclusion is directed only to cases in which each condition (1-6) is satisfied!
Fairchild v Glenhaven Funeral Services Ltd [2003]
1) each condition (1-6) is satisfied! Rule: D breached its duty for not providing protection (e.g. masks).McGhee is a new test. A radical interpretation suggests that it the risk test, not the injury test. A breach of duty which increases the risk of damage is enough for causation. It does not have to necessarily increase the injury! SO the question is whether D materially increased the risk that C would contract the lung disease. If yes, D is liable! Hence, all the employers are liable as they all materially increased the risk. Commentary: the selection of the causation rules is determined by policy reasons! But what are the policy reasons? The courts are silent on this. This makes it difficult to know when Fairchild should be applied. It is argued that the exposure weakens C’s immune system, making C more susceptible to cancer fibres too! But this approach can make innocent people liable. So if C gets exposure during employment by ABCD, all of them are jointly liable, when it could have been just one of them which caused injury! However, C may choose who to sue. If C sues A, A may have a contributory claim against other tortfeasor BCD, determined by the Civil Liabilities Contribution Act 1978. ZCT: note that these ‘material contribution to risk’ cases differ from Hotson as C has already suffered from physical injury. It is not loss of chance we are talking about see Lord Bingham’s 4th requirement! Fleming: Fairchild is a case of ‘indeterminate defendant’ – when 2 or more Ds have acted tortiously towards C who suffer injury as a result but cannot determine whose tort was the cause. The Fairchild approach has been used in car crash cases or drugs cases such as Fitzgerald v Lane and Sindell v Abbot Laboratories. It seems to say that C’s equities have overwhelmed D’s! Lord Hoffmann (extra-judicially): regrets the unprincipled exception based on a faulty equiparation with the Bonnington type of cases
Barker v Chorus [2006]
ϖ (proportionate damages) C contracted mesothelioma as a result of exposure to asbestos. He worked for D between 1960 and 68. He worked for a different employer for 6 weeks where he was also exposed to asbestos. After 1968 he became self-employed as a plasterer for 20 years. Whilst self-employed he was also exposed to asbestos on three occasions. Medical evidence shows that one of possible reasons of the disease is the asbestos exposure during C’s self-employment. C cannot sue himself in tort. C argued that D should be liable for increasing the risk of the harm (under Fairchild). D was wound up 20 years before C brought the claim. D argued it is not fair. D also argued that his exposure to asbestos whilst self-employed prevented him from being able to rely on the causation principle established in Fairchild whereby C is able to demonstrate that the defendant’s breach of duty materially increased the risk of contracting the disease. HL Held: Fairchild was applied and C was thus successful in establishing causation. His damages would be reduced under the Law Reform (Contributory Negligence) Act 1945 to reflect the periods where he exposed himself to risk during the course of his self-employment.
Barker v Chorus [2006]
Lord Hoffmann:
1) Limits of Fairchild: Lord Bingham’s formulation requires that all possible sources of asbestos should have involved breaches of duty to C; Lord Rodger allowed for a non-tortious exposure by D who was also responsible for a tortious exposure but reserved his position on any other non-tortious exposure. The most that can be said of the others is that they did not formulate the issue in terms which excluded the possibility of liability when there had been non-tortious exposures. Fairchild should be limited to cases involving ‘causal agents or mechanisms operating in substantially the same way.
2) ***The purpose of the Fairchild exception: the purpose of the Fairchild exception is to provide a cause of action against a defendant who has materially increased the risk that the claimant will suffer damage and may have caused that damage, but cannot be proved to have done so because it is impossible to show, on a balance of probability, that some other exposure to the same risk may not have caused it instead. Hence, for this purpose, it should be irrelevant whether the other exposure was tortious or non-tortious, by natural causes or human agency or by the claimant himself!
3) Quantification: The present case involves uncertainty as to the cause of a known outcome, namely, the mesothelioma. But in principle I can see no reason why the courts cannot quantify the chances of X having been the cause of Y just as well as the chance of Y being the outcome of X.
4) Fairness and apportionment: In the end, however, the important question is whether such a characterisation would be fair. The Fairchild exception was created because the alternative of leaving the claimant with no remedy was thought to be unfair. But does fairness require that he should recover in full from any defendant liable under the exception? 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 defendant was a wrongdoer, it is true, and should not be allowed to escape liability altogether, but he should not be liable for more than the damage which he caused and, since this is a case in which science can deal only in probabilities, the law should accept that position and attribute liability according to probabilities
Barker v Chorus [2006]
Lord Rodger (dissenting):
liable or non-liable. To award proportionate damages would in effect be allowing recovery for the loss of chance which is rejected in Gregg v Scott. The new analysis which the House is adopting will tend to maximise the inconsistencies in the law by turning the Fairchild exception into an enclave where a number of rules apply which have been rejected for use elsewhere in the law of personal injuries
Barker v Chorus [2006]
Commentary:
hence only proportionate liability is imposed on D (liable for the proportionate share of the loss), NOT the full liability. ZCT: if it is uncertain who caused the loss, how can you quantify the loss? This seems like pure legal fiction! Mitchell: Barker makes it hard to determine whether Fairchild is applied. In Wilshire and Hotson, the exceptional test was NOT applied! In joint liability, C may sue anyone of D. Parliament overruled the proportionality analysis in Barker after 3 weeks – MPs argue that this is unfair to the victim that he has to shoulder the burden should D go insolvent, since C can only recover the proportionate share. Laleng: o Lord Hoffmann’s treatment of the limit of Fairchild is problematic: in a lung cancer case where a claimant had been exposed to asbestos dust and cigarette smoke, it is difficult to understand why this should be the case given the lack of knowledge about causal mechanisms. The courts face similar rocks of uncertainties in other cases too!
ϖ S.3 Compensation Act 2006
3 Mesothelioma
(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).
(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 with any other responsible person.
Mitchell: this is awful legislation -it only applies to mesothelioma! What if C did not suffer from this? If C did not suffer mesothelioma, then Barker still applies! This is crap.
Sienkiewicz v Grief [2011]
ϖ material contribution; epidemiological evidence available; restrictive and Janus-faced) C was exposed to asbestos fibres from D’s tortious negligence and environmental non-tortious exposure, and contracted mesothelioma and died. Although D had been in breach of either its statutory or common law duty to C throughout her employment, that tortious exposure was modest compared with her environmental exposure and had increased the risk of her contracting the disease by only 18%. D argued that the orthodox ‘but-for’ test should be applied, not McGhee or Fairchild because the epidemiological evidence is clear that the non-tortious exposure is the more potent cause! Also, D argued that there must be evidence that its negligence had doubled the risk over and above the risk from the non-tortious environmental exposure to become ‘material’ contribution to risk (i.e. only if that is the case will D’s tortious exposure be a more significant factor than the environmental exposure). HL Held: An increase of 18% is enough for material contribution to risk. A level above the minimal level is enough! The double-the-risk test is rejected and the epidemiological evidence was not used to decide on causation! The ‘rock of uncertainty’ means that C is simply unable to show whether the inhalation of any one or more of D’s fibres in fact caused or materially contributed to the contracting of the disease, regardless of the respective numerical contribution of each source to the overall fibre burden. To require proof of “but for” causation in single employer cases would place an insuperable and unwarranted obstruction in the claimant’s way. Hence, the Fairchild exception applies.
Sienkiewicz v Grief [2011]
Lord Phillips:
1) Double-the-risk test:
¬ Simultaneous cumulative causation: it should NOT apply. Where the disease is indivisible, such as lung cancer, a defendant who has tortiously contributed to the cause of the disease will be liable in full. Where the disease is divisible, such as asbestosis, the tortfeasor will be liable in respect of the share of the disease for which he is responsible.
¬ Consecutive cumulative causation: it should APPLY! The position depends on which exposure came first in time.Where it was the tortious exposure, it is axiomatic that this will have contributed to causing the disease, even if it is not the sole cause. Where the innocent exposure came first, there may be an issue as to whether this was sufficient to trigger the disease or whether the subsequent, tortious, exposure contributed to the cause
¬ Competing alternative causation (Hotson): it should APPLY! Epidemiological evidence may be used to show that one of the causes was more than twice as likely as all the others put together to have caused the injury.
¬ **Where there is statistical evidence on causation: was there a need to apply Fairchild/Barker rule epidemiological evidence enabled us to use statistics to determine causation on the balance of probability?
a) Evidence not reliable: In the case of mesothelioma, epidemiological evidence alone has not been considered by the courts to be an adequate basis for making findings of causation: that so long as medical science is unable to demonstrate, as a matter of fact, the aetiology of mesothelioma, data relating incidence to exposure is not a satisfactory basis for making findings of causation. The reliability of the evidence is a concern.
b) Even if evidence is accurate: even if the evidence is accurate, there is still justification for applying Fairchild! Imagine 4 Ds each of whom had contributed 25% to the victim’s exposure so that there was a 25% likelihood in the case of each D that he had caused the disease. The considerations of fairness that had moved the House in Fairchild would justify holding each of the defendants liable, notwithstanding the impossibility of proving causation on balance of probability!
c) Conclusion: it is inappropriate to decide causation on epidemiological data as to exposure. So far as concerns apportionment between tortfeasors jointly liable for causing mesothelioma it is likely to be necessary to use epidemiological evidence faute de mieux
2) Material contribution to risk: connoted a degree which was more than minimal and it was for the judge on the facts of the particular case to determine whether the defendant’s breach had materially increased the risk. Here there was material contribution and D is liable! The requirement is NOT ‘double the risk’, but just that the contribution is not de minimis!
3) Causation test: So long as medical science was unable to attribute causation in mesothelioma cases there was no place for the conventional test of causation that, on the balance of probabilities, it was more likely than not that the defendant’s breach had materially contributed to the victim’s condition. Hence, the “doubles the risk” test could not be applied in such cases
4) S.3 CA 2006: s.3(1) does NOT that say that if he has materially increased the risk he will be liable in tort. It says if D is liable in tort the section will apply! Hence, determination of ‘material contribution’ remains a question of common law (Fairchild and Barker).
Sienkiewicz v Grief [2011]
Lord Brown (restrictive approach
the law tampers with the ‘but for’ test of causation at its peril -Fairchild is unsatisfactory. It must only be applied to mesothelioma cases!!! To award full damages to C is rough justice. But it is balanced by the denial of compensation to C who cannot establish the probabilities. Save only for mesothelioma cases, C should henceforth expect little flexibility from the courts in their approach to causation. Courts are cautioned to be wary indeed of creating any further special rules in personal injury claims!
Sienkiewicz v Grief [2011]
Lord Rodger
nothing which I have said is intended to discourage the use of epidemiological evidence or to depreciate its value in cases where a claimant has to prove his case on the balance of probabilities. Far from it. Obviously, for example, epidemiology is likely to lie behind much of the evidence on which a court determines whether an exposure has materially increased the risk of the claimant developing a disease. Epidemiological evidence may also be relevant when deciding whether it would have been reasonable for a defendant to take precautions to avoid the risk of the claimant suffering a particular injury—say, the side-effect of a drug. And, of course—it must be emphasised once more—epidemiological and statistical evidence may form an important element in proof of causation. Unless a special rule applies, where there is epidemiological evidence of association, the court should not proceed to find a causal relationship without further, non-statistical evidence!
Sienkiewicz v Grief [2011]
Commentary
Commentary: ZCT: epidemiological evidence sounds a bit shaky. If 1000 people hurl abuse at me and cumulatively cause me RPI, there is arguably no material contribution to my RPI (0.1% per person). But if there are only 4 (25% per person), the results may change. I may be way more traumatised in the first case than the second. Hence, the epidemiological evidence should not be a primary concern. Yet, should the courts find ‘material contribution’ in the first case?
Oliphant:1) the approach is Janus-faced (duplicitous). Lord Philips remarked that the ‘material’ definition is draconian on D. Some have even suggested this exceptional approach should cease to exist when medical knowledge advances. The tenor of the judgments suggests that any attempt to extend the circumstances in which the McGhee/Fairchild rule will apply will NOT be countenanced!2) the problem with the epidemiological evidence is that they can show increased risk only, NOT whether C actually fell within the risk of contracting the disease as a result of D’s tortious exposure but not the ambient environmental risks!! 3) it is unlikely that the evidence be used as grounds for applying the McGhee/Fairchild exception!
Miller: it is clear that C must establish a rock of uncertainty of the medical evidence if the Fairchild principle is to be applied outside of mesothelioma cases. Unless this hurdle was cleared, the orthodox causation rule (balance of probability) would apply, as in Hotson.
Stapleton: care must be taken when using epidemiological evidence as it depends on the understanding of the causal processes. Lords Philips and Dyson seem to have allowed causation to be established under the ‘doubling the risk’ approach. Others have not gone this far (‘false air of authority’ per Lord Kerr). Ibbetson and Steel: the weight of opinion of the court is AGAINST epidemiological evidence being able on its own to establish causation!
Laleng: the meaning of ‘de minimis’ is still unclear!
Durham v BAI (Run Off) [2012]
ϖ — liability insurance case. D were employers facing actions from V (employee), who died from mesothelioma due to exposure to asbestos dust. Can C claim insurance under the insurance policy? The issue was whether the insurance police covered mesothelioma or the risk of mesothelioma. Held: it was inaccurate to speak of an employer’s liability to an employee who had developed mesothelioma after exposure to asbestos as being simply for the risk created by exposing the employee to the asbestos! Risk was no more than an element or condition necessary to establish the liability for mesothelioma and the reality was that the employer was being held responsible for the mesothelioma
Durham v BAI (Run Off) [2012]
Lord Mance (majority)
it is impossible, or at least inaccurate, to speak of the cause of action recognised in Fairchild and Barker as being simply “for the risk created by exposing” someone to asbestos. If it were simply for that risk, then the risk would be the injury; damages would be recoverable for every exposure, without proof by the claimant of any (other) injury at all. That is emphatically NOT the law! The cause of action exists because D has previous exposed V to asbestos, AND because mesothelioma has been suffered by V! Here, nothing suggests that the risk to which D exposed V actually materialised! Hence, the cause of action is ‘for’ and ‘in respect’ of the mesothelioma, and that is reason why D is liable under Fairchild/Barker. It is over-simple to describe it as being for the risk!
Liability for mesothelioma following upon exposure to asbestos created during an insurance period involves a sufficient “weak” or “broad” causal link for the disease to be regarded as “caused” within the insurance period. It would, I think, have been anomalous and unjust if the law by “deeming” there to have been causation of the disease could have created policy liability
Durham v BAI (Run Off) [2012]
Lord Phillips (dissenting):
the policies did NOT cover D’s liability to V because the McGhee/Fairchild exception was for the risk of mesothelioma, NOT for the mesothelioma itself. As the policies did not cover liability for creating risk, D was not covered.
Durham v BAI (Run Off) [2012]
Commentary
- ZCT
- Mitchell
- Oliphant
- Hoffmann
Commentary: ZCT:
1) Lord Phillips is right. How can Lord Mance be right that there is such weak or broad causal link if we are not even sure whether D actually caused the disease itself? The outcome may be that D did not cause the disease. Hence, to make D liable, we can only say that his liability is in respect of the risk. And this is ‘deemed causation’.
2) Proper threshold for ‘material contribution to risks’? Whether it is just or not to impose deemed causation should, I think, depend on a higher threshold for material contribution. I think 50% should be the right threshold, otherwise D (who may not even have caused the injury) will almost always be liable if a non-negligible contribution is to suffice! It will be even more unjust to D if apportionment is not available!
3) Thought Experiment (moral luck): C voluntarily exposes himself to asbestos 12 hours every day at his own home through his own fault, and 1 hour every day during the course the employment by D. It is unknown what caused C’s cancer. Should we make D liable for creating a ‘non-negligible’ but 1/24 risk’? This whole Fairchild exception seems absurd. But then again, if D is only liable for 1/24, that is more acceptable. As Lord Bingham pointed out, it is better for D1 to be liable for 1/8, D2 1/8… and C himself 1/8 then for C to be unable to recoverable 8/8 of the whole damage he suffered. But this is not necessarily the fairness outcome if D1 to D7 were totally not responsible for the injury. Yet, a moral luck argument would be that D’s fault has been done – whether it has caused the real injury is a matter of moral luck which is outside D’s control. If it did cause it, then D would be liable anyway. Hence, D’s liability may be justified!
Mitchell: there are two different treatments of Fairchild:
a) It replaces the usual requirements of proof of causation and balance of probabilities with this weaker test for mesothelioma cases
b) It recognizes a new form of damage – the risk of contracting mesothelioma is in itself a form of risk which can be sued for. According to Lord Hofmann in Barker, it has been used as a justification
All the majority judges said D was wrong. The loss was mesothelioma, not the risk of creating it. The Fairchild principle is committed to mesothelioma cases, but should ONLY to mesothelioma cases. A middle ground has to be found! Fairchild is unprincipled – it is a terrible mess! Increased risk of injury is NOT a kind of damage that is recoverable in tort: see Chorus!
Oliphant: Lord Philip’s view is hard to be reconciled with Grieves v Everard, where the HL held risks were not compensable. Proportionate damages may be accepted. Hence, the insistence on mesothelioma for a cause of action should be correct! If Lord Philip is right, then C can sue D the moment D puts him in a room exposing him to asbestos, which is untrue! The risk of mesothelioma is not actionable damage!
Hoffmann: The court should NOT allow a Fairchild claim in non-mesothelioma cases! Fairchild seems unprincipled and unable to be justified! We should not have done what we did! Unprincipled exceptions should be for Parliament to legislate. Mitchell: then why did you decide the way you did?
Establishing legal causation (novus actus)
• For C to successfully sue D, D ‘ought to be liable for the damage in question’. Policy concerns loom large and if the chain of causation is broken, then D is not liable
Establishing legal causation (novus actus)
Where D and X are both negligent parties
• Where the new act is of X, the test is whether the act was foreseeable. If X’s act was not foreseeable, this will break the chain of causation and D is not liable for the actions of the third party: Home Office v Dorset Yacht
Establishing legal causation (novus actus)
Further, where the act of the third party X was negligent
Knightley v Johns [1982]
this is more likely to break the chain of causation
ϖ was driving a car on the main road and came out of a one-way tunnel and crashed. The police officerin charge (X)arrived driving through the tunnel, but forgot to close the other end of the tunnel before dealing with the crash site to stop the traffic from coming through. So X told his colleague (C) to drive back through the one-way tunnel to the entrance to close the tunnel. That order was in breach of police force standing orders. The colleague was hit by an oncoming car without negligence on the part of the driver and badly injured. Should D be liable to the injured colleague C? Held: X’s instructions and failure to close the entrance to the tunnel were negligent and broke the chain of causation. C’s decision in going through the tunnel was not negligent. Thus C was entitled to full damages from X. D was not liable.
Stevenson J: the question to be asked is whether the sequence of event is
(a) A natural and probable consequence of D’s negligence, AND
(b) A reasonably foreseeable result of it? Taking into consideration:
i) Negligent conduct is more likely to break the chain of causation that conduct which is not.
ii) Positive acts will more easily constitute new causes than inaction.
iii) Unforeseeable mistakes and mischances are to be expected when human beings have to cope with a crisis
iv) The answer must be dictated by common sense of plain man rather than the logic of philosophers on the facts of each case
⎝ While reasonable errors may be expected, a reasonable hypothetical observe will NOT expect that X will make this kind of mistake. Hence, X broke the chain D is not liable! D’s responsibility cannot be taken too far!
Establishing legal causation (novus actus)
Establishing legal causation (novus actus)
Further, where the act of the third party X was negligent
Knightley v Johns [1982]
Commentary
⎝ not liable! D’s responsibility cannot be taken too far!
Commentary: Stapleton: it is more intelligible to think of this as a remoteness issue, not a causation issue. Causation bogs us down with the causation rules and makes it as if there is a scientific test, which misses the point. We should rather focus on the substantive normative arguments about responsibility which are the underlying drive of the court’s decision. If it is a causation issue, the courts will disguise their concern of fairness using the causation rules. Remoteness allows the courts to be more upfront and not have to invent causation rules. The underlying principle is the notion of personal responsibility. Mitchell: this is an exception to the Contribution Act which allows D and X to be jointly liable under D’s contributory claim against X.
Oliphant: whether annovus actus will break the chain is a matter of common sense, depending on the facts.
Establishing legal causation (novus actus)
Where X deliberately (not merely negligently) causes harm to C
• General rule: where X’s intervention is by way of a deliberate wrongful act, the chain of causation will in general be broken. D will in general not be liable.
Establishing legal causation (novus actus)
Where X deliberately (not merely negligently) causes harm to C
Lamb v Camden LBC [1981
ϖ Lord Summer: In general (apart from special contracts etc), even though A is in fault, he is not responsible for injury to C which B, a stranger to him, deliberately chooses to do. Though A may have given the occasion for B’s mischievous activity, B then becomes a new and independent cause. No liability of D can arise unless D is under an exceptional duty to take care to prevent X from injuring C.
Commentary: X’s moral responsibility is so much greater than D. It therefore makes sense to hold X liable. But there are exceptions.
Establishing legal causation (novus actus)
Where X deliberately (not merely negligently) causes harm to C
Weld-Blundell v Stephens [1920]
ϖ D negligently fractured a water pipe C’s house. This caused extensive damage and the property had to be vacated. One year later D had not undertaken the repairs. Squatters had also moved in and caused further damage. C arranged for repairs to be done herself and submitted a bill to the D council for the repairs and damage caused by the squatters. Held: Here, the local authority was not liable for the acts of the squatters – although it created the opportunity for the squatter (X)’s damage. It was not foreseeable that squatters would move into an empty house in Camden and cause damage despite the prevalence of such behaviour in Camden at the time
Establishing legal causation (novus actus)
Where X deliberately (not merely negligently) causes harm to C
• Exceptions:
Lamb v Camden LBC [1981]
D did not cause the squatter’s damage unless it could be said that they were under a duty to prevent the squatter’s behaviour. If there is such duty, D cannot complain there is a novus actus. X’s act is the occasion of the breach of duty, NOT a separate cause. Commentary: see Home Office v Dorset Yacht; Mitchell v Glasgow CC
Establishing legal causation (novus actus)
Where X deliberately (not merely negligently) causes harm to C
• Exceptions:
Stansbie v Troman [1948]
ϖ decorator worked for a house, went out to buy wallpaper and left the front door unlocked. Held: he was liable for the loss caused by an entering thief as the loss was caused by his negligence because his duty was to take reasonable care to guard against thieves entering!
Establishing legal causation (novus actus)
Where X deliberately (not merely negligently) causes harm to C
• Exceptions:
Empress Car v National Rivers Authority [1999]
criminal prosecution) did D ‘cause’ the polluting matter to enter controlled waters contrary to an Act? Held: Lord Hoffmann: ‘Causing’ is said to be a matter of common sense:Alphacell. However, it does not seem that a question of causation can be answered without attributing responsibility under some legal rule and knowledge of the purpose and scope of it. It is a question of law. Hence, Weld-Blundell v Stephens is subject to the exception that, if D’s duty breached is to prevent intentional harm of C by X (e.g. security guards breaching the duty to protect the property, even if X deliberately steals the property, the security guards will nonetheless be liable!). This exception prevents making D’s DOC illusory! Commentary: see Home Office v Dorset Yacht
Establishing legal causation (novus actus)
Where C causes harm to himself
• Where the new intervening act is that of C, the test is whether C acted reasonably in the circumstances. If C’s actions are unreasonable in the circumstances the chain of causation is broken and D is not liable for the actions of the claimant
Establishing legal causation (novus actus)
Where C causes harm to himself
McKew v Holland [1969]
ϖ C suffered an injury at work (employed by D) causing weakening of his leg. C went to inspect a flat and had to descend a deep staircase with no handrail. His leg gave way, and, to avoid going down head-first, he threw himself and landed on his right leg, jumping 10 steps to the bottom and ended up breaking his ankle. HL Held: D should not be liable. C amounted to a novus actus interveniens because his action in attempting to climb the steps unaided knowing that his leg might give way was unreasonable. Lord Reid: although it was foreseeable that C would do this, the attempt to descend the stairs was an unreasonable act for which D is not responsible.Commentary: ZCT: but why should the ‘thin skull rule’ not apply? See Roberts and Blaue!
Establishing legal causation (novus actus)
Where C causes harm to himself
Sayers v Harlow UDC [1958]
C was injured while trying to climb out of a lavatory cubicle in which she was trapped due to D’s negligence. Held: although C’s method of escape involved considerable risk, the chain had not been broken. Yet, her damages was reduced ¼ due to contributory negligence!
Establishing legal causation (novus actus)
Where C causes harm to himself
Corr v IBC Vehicles [2008]
(suicide) C has a bad accident at work and was disfigured by a machine. As a consequence of this, he suffered RPI (depression) and then committed suicide. C’s family sued the employer D. D made 5 arguments why it was not liable, one of the arguments is that D owed no DOC to RPI (rejected by HL under Page). D also argued that C’s suicide was a novus actus. D also argues that C contributes to the negligence. HL Held: D’s novus actus argument is rejected. C’s decision to kill himself was NOT taken by a person who has sufficient personal autonomy to understand the meaning of his actions! His perception of life is distorted by his depression! Hence, C was not a fully autonomous human being. Hence, C’s suicide, although his own deliberate, conscious act, had been the direct result of that depressive illness at a time when his capacity to make reasoned and informed judgments about his future had been impaired by it, and, accordingly, the chain of causal consequences for which the defendant was liable had not been broken by the suicide as a novus actus interveniens.
see also contributory point
Establishing legal causation (novus actus)
Where C causes harm to himself
Corr v IBC Vehicles [2008]
On the contributory negligence point
As regards contributory negligence (C and D are both at fault and have causative effect on C’s harm), contributory negligence usually leads to a reduction of damages. Lord Bingham: if C is not an autonomous being, how can he be at fault for the purpose of contributory negligence? Hence, there should be NO contributory negligence defence! It would be inappropriate to reduce the damages to be awarded to the claimant on the basis of the deceased’s contributory negligence in the absence of satisfactory material on which to decide whether such a reduction should be made, and in what amount. Commentary: Mitchell: Bingham and Scott LJJ should be correct! The reduction of damages is arbitrary. Oliphant: the same result was reached in Kirkham v CCGMP (suicide after depression)
Establishing legal causation (novus actus)
The question is also whether D owed a DOC to C to prevent harm.
If D is under such DOC, C’s action will not break the chain of causation
The question is also whether D owed a DOC to C to prevent harm.
Kirkham v CCGMP [1990]
the police had a DOC to prevent suicide of prisoners on the facts. Hence, C’s suicide was not a novus actus. Lord Lloyd: yet, a voluntary, deliberate and informed act of C precludes a causative link between the breach and the consequence of D’s acts. Commentary: note that there is NO general duty that the police prevent persons in custody from harming themselves: Orange v CCWY Police; Vellino v CCGMP
The question is also whether D owed a DOC to C to prevent harm.
Reeves v Commissioner of Police for the Metropolis [2000]
ϖ C commits suicide during custody. C’s family sued the MPC for failing to stop him doing so. HL Held: police do not generally have a DOC to prevent a prisoner from harming himselfUNLESS he has been made particularly aware, in which case he will owe a DOC. Here, C cannot make this argument because this may empty the DOC. So if there is a DOC owed by D to take reasonable steps to prevent it, the suicide of C, whether of sound mind or not, did NOT negate D’s responsibility for death. Here D knew of C’s suicidal tendencies and hence owed C a DOC to prevent him from killing himself. Nevertheless, a claim in contributory negligence was allowed
Lord Hoffmann: once it is admitted that there is the rare case in which a DOC is owed, it seems self-contradictory to say that the breach could not have been a cause of the harm because V caused it to himself. Lord Hobhouse (dissenting): what if C killed himself to gain publicity for a cause?
Baker v Hopkins [1959]
ϖ doctor died whilst attempting the rescue of two workers trapped in a well because of D’s negligence. Held: the general rule is that when a rescuer (C) is injured while performing a rescue necessitated by D’s negligence, the rescuer will have a claim against D unless he acted in ‘wanton disregard’ for his own safety.
Morris LJ: there is in all men of good will an urge to save those who are in peril. If a rescuer acts with a wanton disregard of his own safety it might be that in some circumstances it might be held that any injury to him was not the result of the negligence that caused the situation of danger. Such a contention cannot be here asserted
The damage must NOT be too remote
Nature of the remoteness requirement
• This is a further control of liability – it places limits on liability for damage for which D’s negligence has factually been a ‘but-for’ cause, but, as a matter of legal policy, no liability could attach.
• It acts as a further rule to causation to limit the open-ended ripple effects of the but-for causation test.
This is a cut-off rule based on moral intuition
The law of remoteness
The directness rule
historically, D was liable for all losses which were a direct consequence of the defendant’s breach of duty. There was no cap on recoverability.
The law of remoteness
Re Polemis & Furness & Withy & Co [1921]
Some stevedores (dockworker) carelessly dropped a plank of wood into the hold of a ship. The plank struck something as it was falling which caused a spark. The spark was ignited by petrol vapours resulting in the destruction of the ship. FI (Arbitrator) Held: it is reasonably foreseeable that some kind of damage may be foreseen, e.g. landing on someone etc, but NOT that it would go through the hatch and destroy the ship. CA Held: FI is wrong. D is liable. There is no reasonable foreseeability of damages rule! All that has to show is that the damage is the direct result of the negligence (directness rule). Commentary: this rule is no longer the law and was overruled by The Wagon Mound (No 1). Oliphant: but, to be fair, in the judgment, there was mention of reasonable foreseeability.
The law of remoteness
Scope of risk approach:
f C’s damage falls within the risk D created (=C’s damage is of a type which might reasonably foreseeably result from D’s negligence), then D will be made liable for that damage in general. The test is ‘reasonable foreseeability’ of C’s damage!
