Factual Causation

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FACTUAL CAUSATION

Whenever considering factual causation, default position is to apply 'but for' test - cite Barnett v Chelsea and Kensington Hospital Management Committee

But for D's negligence, C would not have suffered the injury - D is liable

But for D's negligence, C would have injured in any event - D can escape liability

MULTIPLE POTENTIAL CAUSES case (might be caused by the other factors)

C has to prove that the factor is more probable than not the factor that caused the injury, rather than any other factors - cite Wilsher v Essex Area Health Authority

* note that Wilsher did not overrule McGhee

LOSS OF CHANCE case (when C walk into the hospital, he has certain chance of recovery)

C has to prove that his chance of recovery with PROPER treatment was more than 50% (more probable than not the doctor caused the injury) - cite Hotson v East Berkshire Area Health Authority

* in Gregg v Scott, HOL decided that in the context of personal injury & medical negligence, loss of chance claims will NOT be allowed

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EXCEPTIONS to 'but for' test

Cumulative diseases (the disease developed over time due to prolonged exposure to toxic substance)

it is sufficient if D had materially contributed to C's harm (through guilty exposure) - cite Bonnington Castings v Wardlaw

Compensation - D only have to pay compensation to the extent of his contribution to the harm (Holtby v Brigham & Cowan (Hull) Ltd)

2. Indeterminate cause in employment context (cases where it is medically/scientifically impossible for C to prove D's negligence to be the factual cause)

it is sufficient if D had materially increased C's risk of harm - cite McGhee v National Coal Board

Lord Wilberforce: it is a matter of policy/justice that creator of risk must be taken to have foreseen the possibility of damage, so he should bear its consequence

Fairchild v Glenhaven Funeral Services did not overrule Wilsher but resurrect McGhee (CA applied Wilsher, but HOL disagreed and applied McGhee)

Lord Bingham: when the harm can only caused by the employer's breach of duty but science does not permit V to accurately attribute precise responsibility on any particular employer, policy kicks in

Barker v Corus confirmed Fairchild and also dealt with how the employers should split up the compensation (pay damages proportionate to the asbestos exposure he is responsible for) *include contributory negligence

However, Trade Union's campaigned raised out concern that C might be left under-compensated

dissenting judgment from Lord Rodger: insurers and employers should suffer the risk of insolvency of another employer, but not C who has ended up with the disease

Parliament introduced section 3 Compensation Act 2006: Where conditions for applying Fairchild are met (mesothelioma case and materially increased the risk satisfied), employer will be liable for the whole amount of compensation

Even though employer might not be responsible wholly for increasing the risk, C is entitled to find only one of the employer, and the employer can seek contributions from the other employer(s), but they have to sue them themselves

SC in Sienkiewicz v Greif REJECTED argument that when only one employer involved and the other cause is environmental, 'but for' test should apply, and APPLY Fairchild

Diasagreement between Lord Philip and Lord Brown

Lord Philip: Fairchild should apply whenever court is dealing with diseases with scientific uncertainty as to how that disease was being caused

Lord Brown: Fairchild should apply specifically to mesothelioma cases

There are arguments that Fairchild's 'materially increase of risk of harm' is not proving causation but only shows that ther ehave been breach of duty, thereby undermine the idea that negligence is fault-based

BAE (Run Off) Ltd v Durham (The Trigger' Litigation) response to the argument - Lord Mance: there is a casual link, but it is weaker and broader than what law of negligence usually reuqires with a straightforward application of 'but for' test

* IN PROBLEM QUESTION, GENERALLY DON'T APPLY FAIRCHILD UNLESS IT CONCERNED MESOTHELIOMA (Lord Brown's opinion is majority view)

* For other cases, if the disease came along with scientific uncertainty, maybe can state that 'For the moment, Fairchild only applies to mesothelioma cases, but barrister might argue that Fairchild should move in this direction and this is yet to be decided by the court'

3. Multiple sufficient causes (D causes an injury but before the trial ends a supervening event occur & obliterates the effect of 1st injury D caused)

If the second event is tortious, liability of D MAY continue - Baker v Willoughby

In Baker, legal policy kicks in - fault test has been relaxed to help people who has been injured through someone's else negligence to be able to recover compensation, possibly through sympathy or attitude to where the risk of injury should lie within insurers and employers rather than the claimant

If the second event is natural, liability of D MAY NOT continue - Jobling v Associated Dairies Ltd

Jobling contrast with Baker

* IN PROBLEM QUESTION, LOOK AT THE NATURE OF SECOND EVENT. IF TORTIOUS EVENT, PERHAPS FOLLOW BAKER ; IF NATURAL EVENT, PERHAPS FOLLOW JOBLING. (Remember to state MAYBE/PERHAPS)