Tort Week 7 Seminar Causation PDF

Preview

Summary

week 7 tort law seminar - topic: causation...

Description

Seminar 5 (Week 7) Exercise: Causation 1. Have the courts been right to reject the “loss of a chance” concept in Gregg v Scott and Hotson v East Berkshire HA? If the concept were accepted as legal principle, would the rules on awarding damages have to change as well? -

The second argument that the claimant relied on was that the reduction in the prospect of a favourable outcome (loss of a chance) should be a recoverable head of damages. There were cases in which it was — see Chaplin v Hicks. Application of this principle to cases of clinical negligence has been rejected by the House of Lords in the cases of Hotson v East Berkshire Area Health Authority and Wilshire v Essex Area Health Authority.

-

[Causation was proved] In Fairchild v Glenhaven, a special rule imposing liability for conduct which only increased the chances of the employee contracting the disease had been accepted by the House of Lords, but that rule was restrictively defined in terms which made it inapplicable to this case. The law acted on the assumption that the world was in principal bound by laws of causality — everything had a determinate cause even if we did not know what it was. There was no inherent uncertainty about what caused something to happen in the past or about whether something which had happened in the past would cause something to happen in the future.

-

Everything was determined by causality. What was lacking was knowledge and the law dealt with lack of knowledge by the concept of the burden of proof.

-

The exercise of assessing the loss of a chance in clinical negligence cases was not an easy one. Deductions could not safety be drawn from statistics without expert evidence. The task of determining the effect of negligence on a balance of probabilities was very much easier and it was always likely to be much easier to resolve issues of causation of balance of probabilities than to identify in terms of percentage the effect that clinical negligence had on the chances of a favourable outcome. This reality was a policy factor weighing against the introduction to this area of a right to compensation for the loss of a chance.

-

Loss of chance — Gregg v Scott — reject anything that will be less than 50% is not considered a loss of chance.

-

Policy considerations opens the floodgates of allowing anyone to sue — NHS everyone will pay into it — changing the quality and the doctor-patient relationship.

-

Lord Nichols — the numbers are arbitrary — 49% you cannot sue – indeterminate nature by cutting it off at 50% - makes the responsibility hollow — you have to do something really bad to be held liable — material incriminate.

2. Is the “but for” test a satisfactory means of establishing liability? Discuss with reference to established case law. -

It helps to establish factual causation.

-

If we want to see whether A’s tort caused B to suffer some kind of loss, we must first ask whether that loss would not have occurred ‘but for’ A’s committing that tort. It is important to note that in a tort case, the question we ask in applying the ‘but for’ test is — would B have suffered the loss she did ‘but for’ A’s tort?

-

The rules and principles of the law of causation remain the same. The basic starting point is the ‘but for’ test — would x have happened but for what A did? If x would have happened anyway, that would normally count against finding that what A did caused x to happen. If x would not have happened at all, that would normally count in favour of finding that what A did caused x to happen. But the ‘but for’ test is notoriously inadequate as a test for determining causation issues. Sometimes it produces paradoxical results, indicating that no one caused x to happen, when we know someone must have. Sometimes it is overbroad: it will indicate that A caused x to happen, when such a finding will seem counterintuitive to ordinary people.

-

Barnett v Chelsea and Kensington Hospital Management Committee [1969] 1 QB 428. o C’s husband attended D’s hospital complaining of stomach pains. Doctor told him to see him G.P. in the morning. Patient died of arsenic poisoning. D in breach, but patient would have died anyway, so no liability. o Problem of ‘but for’ test with omissions. McWilliams v Sir William Arrol & Co Ltd [1962] 1 WLR 295: D failed to provide safety-belt for employee, C, who fell to his death. D not liable as probable C would not have worn safety-belt and would therefore have fallen anyway.

-

Wilsher v Essex AHA [1988] AC 1074. o C, premature baby, given excessive oxygen. C became blind. Doctor admitted negligence, but no liability because excessive oxygen not the only cause of blindness in premature babies (there were 5 other possible causes of blindness in premature babies). C must prove, on balance of probabilities, that D’s breach caused injury — multiple causes and complexities.

3. Is there consistency in the cases concerning novus actus interveniens? Illustrate your answer by reference to 3 cases which you have studied. -

Novus Actus Interveniens. o A new, unforeseen, intervening act, which breaks the chain of causation. However, if the intervening act is foreseeable, it is unlikely to break chain of causation. The intervening party may be held liable following the intervening act.

-

Issue of causation from the intervening act of the claimant and how that may affect damages: Claimant does something that can intervene suggesting C’s

unreasonable conduct of a broken chain of causation — make it worse (if you did it is likely you broke the chain of causation). -

Scott v Shepherd [1773] 2 Wm Bl 892: D threw lighted squib into marketplace. Landed on X’s stall. X threw it onto Y’s stall. Y threw it off his stall. Exploded in C’s face, blinding him in one eye. Unbroken chain of causation. D is liable.

-

Knightley v Johns [1982] 1 All ER 851. o D caused accident in one-way tunnel. Police inspector failed to close entrance to tunnel. C, constable, rode on motor-bike to close entrance: hit by car. Inspector had been negligent. Common sense would show what was foreseeable. Inspector’s negligence was a new cause, not a concurrent one. It broke the chain of causation.

-

Wright v Lodge [1993] 4 All ER 299: 1st D’s car broke down on unlit dual carriageway. 2nd D, lorry-driver, driving too fast, crashed into 1st D’s car, skidded across carriageway, injuring C, passenger in another car. 1st D not liable because 2nd D not merely negligent, but reckless: broke the chain of causation.

4. Kurt left an old paraffin lamp burning in his draughty garden shed. The lamp was blown over by a strong gust of wind, and a fire spread rapidly. This fire combined with another fire, the source of which was unknown, and the fire produced by this combination spread to Roman’s house, which was located a quarter of a mile away. Roman was holding a garden party at the time and a general panic ensued. Jamal, the butler, dropped a tray containing valuable antique glasses, one of which cut the arm of Willian, a haemophiliac, who bled to death before the emergency ambulance arrived. When the fire reached Roman’s house, the emergency sprinkler system was set off. The fire brigade rushed to the scene, but because their best fire-engine was already in use at a road accident they were unable to bring the fire under control with the fire-fighting equipment at their disposal. In addition, to conserve the limited amount of water available at a nearby fire-hydrant, with which to extinguish the fire, Roman’s sprinkler system was switched off by order of the chief fire-officer. Although he had reached a place of safety away from the fire, Roman rushed back into the house to save his priceless collection of Impressionist paintings, and was killed in the fire. The house was completely destroyed. Advise all parties as to their possible liability in negligence for any or all of the above injuries and losses. -

A natural event that is unforeseeable like an earthquake, can have the effect of breaking the chain of causation between a defendant’s tort and a harm suffered by a claimant. There is no need for the hypothesis that unforeseeable natural events break chains of causation: all examples of such cases can be explained on the

-

-

-

-

basis that the harm suffered by the claimant is merely a coincidental result of the defendant’s actions. Extra-hazardous activities — if A is going to engage in some activity that creates danger for B, A will owe B a duty to take reasonable steps to see that danger does not materialise. The exception is where a professional is under a duty to exercise a reasonable degree of care and skill in looking after a client’s interests by showing that there is a significant body of opinion within his profession that would regard it as proper for him to treat his client in the way he did. If A owes B a duty of care arising out of an assumption of responsibility by A to B, A’s duty of care will only require her to live up to the standard of care that she indicated to B she could be relied upon to apply in dealing with B. Emergencies and other stressful situations — people tend to react sub-optimally in emergencies. Hence it would be unreasonable to require people in such situations to do whatever a reasonable person would do in the cool light of day, and the acknowledged by the responsibility and heroism act, which says that in determining whether a defendant breached a duty of care: whether the alleged negligence…occurred when the person was acting heroically by intervening in an emergency to assist an individual in danger.

Hotson v East Berkshire Area Health Authority [1987] AC 750 House of Lords The claimant as a school boy fell out of a tree from a height of 12 foot. He suffered a fracture to his hip and was taken to hospital. The hospital failed to diagnose his fracture and sent him home. He was in severe pain so he was taken back to hospital 5 days later where an X ray revealed his injury. He was treated and suffered an avascular necrosis which resulted in him having a permanent disability and a virtual certainty that he would develop osteoarthritis. According to medical evidence, had he been correctly diagnosed initially there was a 75% chance that he would have still developed this condition, but there was a 25% chance that he would have made a full recovery. The trial judge awarded damages of £11,500 based of 25% of £46,000 which was what would have been awarded if the claimant had shown that the defendant's conduct had caused the avascular necrosis of the hip. Held: The claimant had failed to establish on the balance of probabilities that the defendant's breach of duty had caused the necrosis since there was a 75% chance that it was caused by the fall. Therefore the claimant was not entitled to receive anything in respect of the necrosis. Gregg v Scot [2005] 2 WLR 268

House of Lords

The claimant found a lump under his arm. He Consulted his doctor who negligently diagnosed it as innocuous when in fact it was cancerous. This lead to a nine month delay in the claimant receiving treatment. During this period the claimant's condition

deteriorated and the cancer spread. This reduced his prospect of disease free survival from 42% to 25%. The delay also caused the claimant to undergo immediate high dose chemotherapy. The claimant brought an action based on his loss of a chance of a disease free survival. Held 3:2 Loss of a chance is not a recoverable head of damage in medical negligence claims. Hotson v East Berkshire affirmed. Lord Nicholls gave a powerful dissent: "This is the type of case under consideration. A patient is suffering from cancer. His prospects are uncertain. He has a 45% chance of recovery. Unfortunately his doctor negligently misdiagnoses his condition as benign. So the necessary treatment is delayed for months. As a result the patient's prospects of recovery become nil or almost nil. Has the patient a claim for damages against the doctor? No, the House was told. The patient could recover damages if his initial prospects of recovery had been more than 50%. But because they were less than 50% he can recover nothing. This surely cannot be the state of the law today. It would be irrational and indefensible. The loss of a 45% prospect of recovery is just as much a real loss for a patient as the loss of a 55% prospect of recovery. In both cases the doctor was in breach of his duty to his patient. In both cases the patient was worse off. He lost something of importance and value. But, it is said, in one case the patient has a remedy, in the other he does not. This would make no sort of sense. It would mean that in the 45% case the doctor's duty would be hollow. The duty would be empty of content. For the reasons which follow I reject this suggested distinction. The common law does not compel courts to proceed in such an unreal fashion. I would hold that a patient has a right to a remedy as much where his prospects of recovery were less than 50-50 as where they exceeded 50-50."

Fairchild v Glenhaven [2002] 3 WLR 89 House of Lords This was a conjoined appeal involving three claimants who contracted mesothelioma, a form of lung cancer contracted by exposure to asbestos. Mesothelioma can be caused by a single fibre of asbestos. 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. It will be only the last 1-2 years where a person may experience symptoms. By this time it is too late to treat. 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. Held:

If the claimants could demonstrate that one employer had materially increased the risk of contracting mesothelioma they were entitled to claim full compensation from that one employer. Barker v Saint Gobain Pipelines [2004] EWCA Civ 545 Court of Apeal Mr Barker contracted mesothelioma from exposure to asbestos. He worked for the defendant between 1960-68. 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 exposed to asbestos on three occasions. The defendant argued that his exposure to asbestos whilst self-employed prevented him from being able to rely on the causation principle established in Fairchild v Glenhaven whereby the claimant is able to demonstrate that the defendant's breach of duty materially increased the risk of contracting the disease. Held: Fairchild did apply and the claimant 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 selfemployment....