L.7 & L.8 Factual and legal causation PDF

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Factual and Legal causation notes for Tort law- very in depth and detailed with a lot of case law ...

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In order to bring a successful action in negligence it is not enough to establish (1) the DOC and (2) breach of that duty. The claimant must also prove: (3) On the balance of probabilities that the breach caused his damage. If the D is not responsible, or partly responsible for the harm suffered, then D cannot be made liable for it – even if he has been negligent Causation is of two type: 1.Causation in fact- Factual Causation. 2.Causation in Law- Legal causation. The courts will weigh the evidence and see the extent to which liability will lie and thereby establish the degree of compensation that will be issued based on the fault of D. The elements of law must be established before a DOC arise: based on Caparos’ 3-part test The burden of proof is on the claimant to show that - D owed a duty of care - There is a breach of duty - The breach has caused a loss - Show the remoteness of damage - Defence and mitigation Causation in fact As described by Winfred causation in fact is “primarily a matter of historical mechanics”- It involves establishing the fact of how something came about at a given time. “But for” test is used to begin the process of establishing the causation in fact “But for the D’s breach of duty would the claimant’s damage still have occurred?”

Yes The D's breach generally can be eliminated as a fatual cause of the damage

No The D's breach is at least one of the contribution cause of the damage.

Barnett v Chelsea & Kensington Hospital [1968] - 3 night-watchmen became ill after drinking tea. They visited the local hospital where the casualty officer on duty did not examine them but recommended them to visit their own doctors. - Some hours later, one of the men died. He died of arsenical poisoning and that on the balance of probabilities, the treatment which the doctor would have given him could not have saved him. Issue: Was the defendant’s negligence the cause of the death, or would it have inevitably happened anyway? YES it would have happened anyway. Held: The COA held that the duty office had been negligent in failing to examine the patient, however ‘but for’ his breach, the death would still have occurred. Thus it was eliminated to be a cause of death. The burden of proof is on the plaintiff to prove causation on the balance of probabilities - PIickford v ICL That the negligent actions of the defendant caused the outcome, i.e. they must establish that if the negligent act did not occur, then the damage would not have happened

PIickford v ICL - C was suffering from RSI. This could have been caused by the work she had done for her former employer, ICL, but it could have had ‘psychogenic; or psychological origins unconnected with her work. Issue: Was her former employer liable for her RSI? NO Held: The claimant was unable to establish that her injury was work-related & thus her negligence action failed. This requirement is often known as the “all or nothing” approach and has led to signification problems for claimants in areas such as loss of a chance. Issues with the application of ‘but for’ question arises in two circumstances: 1. When the answer to the question leads to unjust or contradictory result. 2. When it is impossible to answer the but for test. Several liability: occurs when two or more parties act independent to cause the same damage to the claimant. Each party is separately liable for the whole of damage (but compensation can only be awarded once) Joint or several liabilities: 2 or more parties act together to cause the same damage to a claimant. Any, or all can be sued, each party being separately liable for the whole damage and in a case where only one is able to pay, he will be liable for the whole of the damage. Wilshire v Essex Area Health Authority 1986 - Martin Wilshire was cared for in the neonatal unit at a hospital, after being born prematurely. - A junior doctor had inserted a monitor into the vein instead of the artery and on 2 separate occasions, given too much oxygen. - The C developed an incurable retinal condition- which eventually left him blind in one eye and with seriously impaired vision in the other. Too much oxygen in the blood is known as a possible cause for this illness. The defence argued that there were also a number of innocent potential causes, including the fact that he was born prematurely. - The condition could have been caused by the excess oxygen he has been exposed to or it could have been caused by 4 other factors unrelated to the oxygen, but related to the prem birth. - The trial judge found the health authority liable. The D was negligent and had was in breach of a duty. - He applied McGhee v NCB but stated that McGhee had reversed the burden of proof where there was more than one possible cause. The health authority appealed. Issue: Is the Doctor liable for the damage the claimant suffered? YES

Held: the appeal succeeded. - The HOL were not convinced as there was not enough evidence, on the balance of probabilities, the doctor’s negligence and not any other factor caused the harm. - It was for the plaintiff to prove his case, and the court must allow that the Health Service will employ inexperienced doctors. The standard of care to be expected must be looked at relative to the experience of the doctor employed. However, the senior registrar was negligent in failing to recognise the error, and the damage was shown to be of the sort which might be expected to follow. - It was one thing to treat an increase of risk as equivalent to the making of a material contribution where one agent was involved, but quite another where any one of a number of events may equally probably have caused the damage. The practical problem with multiple potential causes is always whether enough evidence can be gathered to prove that the D’s negligence that was the cause of the harm.

Contribution: Where there is joint and several liabilities, one party who pays compensation may wish to claim a portion of this from other wrongdoer. - The Civil Liability Act s.1 and 2 enable the party who has paid the compensation to bring an action to recover the contribution from on our more of the other parties. Cook v Lewis 1952 - A Canadian case in which 2 hunters negligently fired their guns in the direction of the plaintiff. One bullet hit the plaintiff but it was not established which gun had fired the bullet. Issue: When there are two parties, and it is proven that one of their actions caused harm, but it cannot be proven which on it was, who, if anyone, is liable? Should the “but for” test apply, or whether the “material contribution” test applies? Held: In the absence of the required proof, it was held that the hunters would be jointly and severally liable. - In order to achieve a just result for the victim it is necessary to adapt the normal rules on causation. Ratio: (1) if the plaintiff can prove that the 2 D’s were negligent (one had caused his loss) and it is impossible to prove which one, then the burden of proving causation shifts to the D’s. (2) In such a circumstance, there is no joint tortfeasance when 2 parties are engaged in a lawful common enterprise, and it is proven that one of them caused harm in their actions but it cannot be proven which party actually did it, unless The ‘but for’ test involves an element of guesswork concerning what would have happened in the given circumstance. It sometimes involves what someone might or might not, have done. McWIllians v Sir Williams Arrol [1962]: D did not provide a safety belt to steel erector (well experienced) who fell from a building resulting in his death. C (the widow) said D was in breach of its statutory duty to provide a safety belt (but not to insist that it be worn), evidences showed that the man would not have worn the belt even if it been provided Held: The claim failed. The courts applying the ‘but for’ test held that the breach of duty did not cause his death. Once the employer is shown to be in breach of duty to provide equipment, the assumption is that it would have been used, because a reasonable employee would use it, unless the employer proves otherwise. Lord Reid said: ‘In the end when all the evidence has been brought out it rarely matters where the onus originally lay: The question is which way the balance of probability has come to rest’. Loss of a chance - In some cases, the argument will be made that D’s negligence increased the likelihood of poor outcome for the claimant or deprived him of the possibility of avoiding such an outcome. - The courts have been reluctant at imposing liability. They are reluctant to allow ‘loss of a chance’ to substitute for ‘all or nothing’ requirement that causation to be proved on a balance of probabilities. Hoston v Berskshire - C (school boy age 13) had fallen from a tree, when taken into hospital the seriousness of his injuries were not immediately discovered. - 5 days later his condition was correctly diagnosed and treated, but he had a serious disability to his hip as an adult (age 26). - C bought a claim in negligence; his disability was caused by the delayed diagnosis. - The hospital admitted negligence but denied lability on the ground on the lack of causation. Held: Lord Ackner expressed that “Even had the health authority correctly diagnosed and treated the plaintiff on 26th April on the balance of probabilities the disability would have occurred without the D’s negligence. As there was a 75% risk that the plaintiff’s injury would have followed the same course had he been treated on that day.

The judgement was clarified in Gregg v Scott - C had visited the doctors with a lump under his arms, and Dr Scott concluded that it was benign and did not order any further tests. - 1 year later it was discovered that the lump was a symptom of cancer, his condition had deteriorated had cancer spread over the 9 months of not receiving any treatment. - This reduced his chance of 10 years’ survival from 42% to 25%. - The claimant bought an action based on his loss of a chance of a disease free survival. Held: Loss of a chance is not a recoverable head of damage in medical negligence claims. Hotson v East Berkshire affirmed.

Material contribution Bonnington v Wardlaw 1956: • A factory employee contracted a lung condition, from the inhalation of silica dust. He sued his employer in negligence. • The problem was that some dust inhalation was an inevitable consequence of the work being done – this dust was therefore deemed as innocent dust. Issue: Could the employer be held liable? YES Held: The burden of proof remained on the claimant. Although the claimant was unable to establish but for the employer’s negligence he would not have suffered the disease. Medical evidence established that the disease was progressive/cumulative- caused by the build-up of silica in the lungs. It could not be established at what point the disease occurred. It could not be established, on the balance of probabilities, whether the innocent dust was the cause. That is, it could not be said that ‘but for the D’s negligence in allowing the guilty dust into the air, the C would not have suffered the harm. The HOL was satisfied that the negligence had made a ‘material contribution’ (more than negligible) to the condition. As they found that there was a higher level of dust in the air than there should have been, due to the employer’s negligence in not adequately ventilating the factory. Material increase in risk- when there is no process of accumulation, but rather only one, but unidentifiable, cause. Known as a material increase in risk. McGhee v National Coal Board 1973 - The C worked for the D brick works. His normal duties did not expose him to too much dust but then he was asked to work on the brick kilns in a hot duty environment. - The D was in breach of duty in failing to provide adequate washing and showering facilities at the end of the working day - The C cycled home covered in the ‘guilty’ brick dust and contracted dermatitis. - There were 2 possible causes: 1. The innocent brick dust he was exposed to during the course of his employment which was not attributable to a breach of duty 2. The guilty brick dust he was exposed to on his journey home which was attributable to a breach. The C had to demonstrate that the dust attributable to the breach of duty materially increased the risk of him contracting dermatitis. Scientific evidence was unable to determine whether the ‘innocent’ or ‘guilty’ causes were the factual cause of the C’s condition, a kind of dermatitis caused by the exposure to brick dust.

The C encountered the innocent dust whilst he was at work, but at the same time this dust became guilty after work (it stayed longer on the C than it should have done due to the employer negligently failing to provide adequate washing facilities at the end of the working day). Issue: The question was whether the C’s condition was caused by his innocent exposure to dust or by the guilty dust that remained on his body? Is the employer liable for the contraction of the disease? YES Held: As in Bonnington the evidence was not strong enough to prove it either way. However, what could be shown was he longer the dust lays on someone’s skin, the greater the risk of that person contracting dermatitis. The HOL held that this was enough- the fact that the C developing the condition was increased by the D’s negligent act was enough to establish causation. In McGhee material increase of risk was treated as equivalent to material contribution. The HOL reversed the burden of proof shifting it to the D who then had to show that there was another, more likely, cause than their negligence (this approach was resoundingly rejected in later cases Barker v Corus UK ltd 2006) Where this cannot be done, the D remains liable. To succeed, a C has to show, on the balance of probabilities, that the alleged negligence materially increased the risk of the harm being suffered.

Wilshire v Essex Area Health Authority 1986 KEY POINT FOR COMPARISON; - The decisions in Bonnington & McGhee may seem logical, because of its reliance on establishing above 50% probability. However, if you look at the dates of the two cases 1956, 1973 and then at Wilshire 1986. - Both cases pre- date (and importantly survive) Wilshire. - McGhee’s argument was rejected in Wilshire by the HOL, which did not think that McGhee had established a new test for causation. They said that although there was a material increased risk of blindness caused by the doctor’s negligence, this was not enough to establish factual causation. There were 4 other possible ‘innocent’ causes, any of which may have led to the condition, and the D’s carelessness was not the most likely cause. Cumulative cases: - Some cases deal with illness and injury which there are a number of possible causes. It is therefore difficult to establish which one of the unconnected factors caused his damage. Unjust results example:

Fairchild v Glenhaven - 3 claimants had contracted mesothelioma, a form of lung cancer contracted by exposure to asbestos. Mesothelioma can be caused by a single fibre of asbestos. Unlike in Bonnington, the condition does not get worse the greater the exposure. Once the fibre has embedded into the lung it can lay dormant for 30-40 years before giving rise to a tumour which can then take 10 years to kill. - Each of the claimants had been exposed to asbestos by a number of different employers. They were unable to demonstrate, and medical science was unable to detect, which employer exposed each of them to the one fatal fibre.

Issue: Which D is the factual cause for the disease? NO (based on the COA) Held: The claimants could not show when that causative exposure occurred, so they could not show, on the balance of probabilities, which of the employers was the factual causes. That had materially increased the risk of contracting mesothelioma. On that basis, strictly following the but for test, the COA dismissed the claim and the claimant appealed to the HOL. The HOL established that the but for test produced an unjust result and the idea that no D would be liable for the harms suffered by the C, when there was no doubt that the cause had been negligence, clearly sat uncomfortable with them. To circumvent this, they reinstated McGhee, approving the ‘material increase of risk’ interpretation and stating that in this exceptional type of case this would be enough to establish factual causation; the D’s were therefore liable. KEY POINT FOR COMPARISON; - The HOL did not overrule Wilshire, which seemed to potentially stand in the way of this interpretation. Instead they distinguished it, holding that Wilshire had been correctly decided on its facts. - The law stressed that FAIRCHILD WAS AN EXCEPTION TO NORMAL CAUSATION PRINCIPLE. -

The final outcome was that each of the employers were jointly and severally liable. It would therefore be up to the employers who had been bought before the court to seek contribution from those who had not- under Section.1 subsection 1 of the Civil Liability Act 1978

Barker v Corus UK ltd 2006 - A number of claims were mad on behalf of people who had died from mesothelioma contracted as a result of exposure to asbestos dust. - Some of the exposure was negligent on part of the employers concerned and claims were brought against them. - In one of the claims, the exposure of the dust could be clearly broken down to 3 distinct periods of times: 1. A period when the claimant was working for insolvent employer (who thus could not be sued). 2. A period when working for the D 3. Period of self-employment. -

At both instances in the COA the defendants were held, following Fairchild, joint and severally liable.

Issue (s): Should the solvent employer but jointly and severally liable for the damage also done by the insolvent employer? NO, only partially liable Is the claimant responsible for its own negligence during the period of self-employment? YES, damages reduced by 20% Held: The HOL reconsidered its ruling in the earlier case of Fairchild. -

The HOL by a majority, accepted the argument that the solvent employer should NOT be jointly and severally liable, but only proportionately liable. They agreed that the most practical method of appointment would be based on the amount of time the C was negligently exposed to the asbestos dust by each employer.

Lord Hoffman said “Allowance may have to be made for the intensity of the exposure and the type of asbestos” Lord Hoffman said: “The D was a wrongdoer…and should not be allowed to escape liability altogether, but he should not be liable for more than the damage which he caused…..” “The justification for the joint and severally liability rule is that if you cause the 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…and fairness suggests that if more than one person may be responsible, liability should be divided according to the probability that one or other caused the harm”

Causation in law or remoteness- concerned with the extent of a D’s duty. Even when there is a factual link between the D’s act and the C’s loss (causation in fact), the outcome may be either. Winfield tells us: “No D is responsible ad infintium for all the consequences of his wrongful conduct, however remote in time and however indirect the process of causation”

Test of Directness- was established in Re Polemis 1921 - Cargo was being unloaded from a ship docked in Casablanca. - A plank was negligently dropped into the hold by the D’s employee, which caused a spark, igniting gases in the hold and resulting in an explosion which destroyed the ship. - The D was held liable for damages caused by this unexpected event on the basis that there should be liability for all the ‘direct consequences’ of a D’s negligence. The D’s would be liable for any consequences of their breach of duty, as long as they were directly the result of the breach, whether or not these could have been foreseen. The direct consequence test prevailed until The Wagon Mound (No 1) 1961. The facts of this case were set out in chapter 6 when The Wagon Mound 2 was...