Tutorial 3 Tort

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Tutorial 3:

1. To what extent is it important to distinguish between factual and legal causation? In which category would you

place the novus actus interveniens principle?

Factual causation – link between cause and damage to the victim/C (balance of probabilities: 51% = fully

liable, 49% = not liable at all)

Legal causation – remoteness

The term remoteness refers to the legal test of causation which is used when determining the types of loss

caused by a breach of contract or duty which may be compensated by a damages award. Legal

causation is different from factual causation which raises the question whether the damage resulted from

the breach of contract or duty.

Accordingly, once factual causation is established, it is necessary to ask whether the law is prepared to

attribute the damage to the particular breach, notwithstanding the factual connection. Damage which is too

remote is not recoverable even if there is a factual link between the breach of contract or duty and the loss.

NAI – legal causation bc it ????

2. Explain the difference between material contribution to harm and material contribution to risk.

“Material contribution to injury” approach

Cases where C suffers from a disease which has been cause by the cumulative effect of an agency which

only part is attributable to D’s breach of duty – been both innocent exposure to the agent which is not due to

negligence and guilty exposure.

“material increase in risk” approach

“Where a person has, by breach of a duty of care, created a risk, and injury occurs within the area of that risk,

the loss should be borne by him unless he shows that it had some other cause.” – Lord Wilberforce

Basically material increase in risk is where D plays a significant role in increasing the risk of C resulting in

their condition while material contribution to injury is where D plays a significant role in the result of C’s

condition.

3. An employer negligently allows his employees to be exposed to a chemical which is known to create a risk of

cancer developing. An employee develops cancer. What difficulties do doctrines of causation create in such

circumstances?

“but for” factual causation test – but for the employer negligently exposing his employees to the chemical,

would they have developed cancer? – hard to say if the “innocent” particles of the chemical was in the air of

the workplace, hard to completely contain every trace of the chemical.

Did the employer materially contribute to the employee’s contraction of cancer or did the employer materially

increase the risk of contracting cancer?

4. Adrian, aged 20, suffers leg injuries in a road accident caused solely by the negligence of Bertha. Adrian’s

injuries create a significant risk that permanent disablement will result. The only way of reducing this risk is to

provide immediate medical treatment.

Adrian is taken to hospital and examined by Christine, a doctor working in the casualty department. Christine

correctly diagnoses Adrian’s condition and attempts to provide the correct treatment but makes several

mistakes with the result that the treatment fails to avoid the risk of permanent disability.

Adrian is off work for six months as a result of the accident. Shortly after returning to work, and before his tort

claims against Bertha and Christine are resolved, Adrian is involved in a second accident caused by his own

fault, and suffers injuries which result in his disabled leg being amputated.

Discuss.

Issues:

- Does Bertha have a material contribution to injury towards Adrian?

- Does Christine’s several mistakes create a material increase in risk?

- Does Christine’s mistake break the chain of causation? Who is liable to Adrian’s disability?

- Does Adrian’s second accident break the chain of causation? Or is Bertha ultimately liable for his condition?

- Would Adrian’s second accident result in the same way if he hadn’t been in the first accident?

Rules + Application:

1. Cumulative cause – Bertha commits the first tortious act (road accident) and then Christine’s negligence during

the operation results in several mistakes and the treatment fails to avoid the risk of permanent disability BUT

Adrian’s own injury results in the amputation of his leg.

2. Consecutive cause – did Adrian’s 1 st accident obliterate the effect of his 2 nd accident? Dependent on the

circumstances of the 2 nd accident – would the 2 nd accident have resulted in his leg being amputated if the 1 st

accident had not occurred?

3. Material contribution to injury approach – on the balance of probabilities was Bertha’s breach the cause of

Adrian’s leg amputation?

4. Material increase in risk approach – did Bertha (D1) and Christine (D2) simply increase the risk of

disability/amputation or were they the cause of the amputation?

Conclusion:

Action 1

Potential Ds – Bertha & Christine

Bertha – established duty of care (road users), breach of duty bc she was negligent, damage – injuries w a significant

risk of permanent disablement, ‘but for’ test – w/o the accident, would not have gone to hospital and suffered those

injuries, legal causation – reasonably foreseeable that he would go to the hospital (Hogan – medical treatment is

reasonable foreseeable (not NAI) & negligent medical treatment is still foreseeable) contrast (Wright v Cambridge –

if medical treatment is grossly negligent it can break the chain of causation)

Christine – established duty(doctor patient), breach of duty (Bolan – if reasonable doc would have done the same

thing D is not liable) (Bolitho – if doc is grossly negligent then he cannot escape liability), damage – loss of chance

case (Christine made several mistakes (negligent) but was there causation? – what was the risk of permanent

disability before Christine – quite high “significant risk that permanent disability will result” – arguably more than 50%

that he will suffer permanent disability, hard to avoid the risk), loss of chance – Hobson case (cannot claim)

Action 2

NAI – McGue – did bertha continue to be liable for the further damages after action 2?

Baker & Jobling – Bertha liable for injury 1 but did damages continue?