Flashcards
Tort - Causation Essay
Cards in this deck (27)
- 1Intro - Negligence is an unintentional tort.Negligence is an unintentional tort. Torts that arise from intentional acts bring with them an intuitive mechanism for allocating responsibility.
- 2What is causation?Causation limits the scope of liability by establishing whether the loss of the claimant can be factually and legally attributed to actions of the purported tortfeasor.
- 3What is factual causation?The factual causational inquiry asks whether a causational chain of events linking the actions of the defendant to the loss of the claimant can be established.
- 4What is legal causation?The legal causational inquiry asks whether there are any factors limiting a finding of causation. It demarcates the outer limits of an 'event'.
- 5(only if they ask you about 'common sense')A clear judicial definition of 'common sense causation' is entirely absent from the judgments that invoke it. Andrew Summers in 'Common Sense Causation in the Law' has demonstrated, that, although a coherent definition is possible, it bears little relation to judicial to applications of 'common sense'.
- 6Getting to 'attibution of responsibility'This essay will demonstrate that the law of causation in negligence is incoherent and often illogical. Following Rob Stevens, the approach of courts is better understood as an attempt to attribute responsibility than accurately establish causation. I will demonstrate how attempts to attribute responsibility are infused with value judgments and are concerned with policy.
- 7But for testThe basic test for factual causation is the 'but for' test, which asks whether the loss would have occured but for the defendant's negligence. In Barnett v Chelsea Kensington causation was not found for a claimant patient who would have died from arsenic poisoning, notwithstanding the negilgence of a hospital employee.
- 8Shortcomings of the but for testOne shortcoming of the but for test is that it need not describe a causative relationship, but can describe a merely corellative one. Thus, establishing a but for relationship doesn't necessarily tell us anything about causation.
- 9Over determination.Over determination. Another failing of the 'but for' test is its inability to attribute causational agency in situations where multiple causal factors operate in concert, for example, one rabbit being hit by two bullets simultaneously.
- 10Incomplete informationIn some cases, courts have departed from the basic 'but for' test in attempt to attribute reponsibility in the absence of sufficient information to establish 'but for' causation.
- 11'Material contribution to injury' testIn cases were multiple causational factors work cumulatively to cause a loss, such that it is not possible to attribute sufficient causation to any given factor, courts have adopted the uncontroversial modification of the 'but for' test know as 'material contribution to injury'. #bonningtoncastings
- 12Fairchild v GlenhavenEXTENDED: The principle of 'material contribution' was extended to include 'material contribution to risk' in Fairchild v Glenhaven Funeral Services, following McGhee v National Coal Board. FACTS: In Fairchild, a claimant employee contracted mesothelioma after tortious exposure to asbestos. It was not possible to ascertain whether the defendant was responsible for the specific exposure that lead to the development of the disease. REASONING: The aetiology was highly ambiguous, and the developmental process unknown. HELD: The court held that, given the scientific impossibility of establishing a causal relationship with any certainty, the rule on material contribution should be extended such that the defendant was held liable for having materially contributed to the risk of injury.
- 13Fairchild Problems 1 - no material increase in risk?There are a number of problems with the judgment in Fairchild -
1.'material increase of risk' could not be proven on the facts. The claimant may have suffered the necessary causal exposure before working for the defendant. In such circumstances the defendant's negligence would have added nothing to the risk of developing the disease. The defendant would have developed mesothelioma in any case. - 14Fairchild Problems 2 - conceptual ambiguity.The judgment in fairchild has introduced a number of ambiguities into the law. Conceptual ambiguity: What damage is caused by a material increase in risk? Injury or risk of injury? (Sienkiewicz v Greif).
- 15Fairchild Problems 3 - practical ambiguity 1. Apportion between defendants?Practical ambiguity 1, Can we apportion damages between defendants who have 'contributed' to the risk? Barker v Chorus found that damages could be apportioned, but this was reversed by the Compensation Act 2006 s3, which held that damages could be awarded jointly or severally. This however, only applies to mesothelioma (Fairchild has been applied to other forms of injury e.g. Hennegan v Manchester Dry Docks), and does not apply in overseas territories (IEG v Zuirch).
- 16Fairchild Problems 3 - practical ambiguity 2. Trigger.Practical ambiguity 2: Can insurance be triggered by 'contribution to risk'? (Trigger Litigation)
- 17Problems 3 - practical ambiguity 3. Insurance apportionment.Practical ambiguity 3: how should damages fall to be outside the compensation act if the defendant had more than one insurer over the period of tortious exposure? (IEG).
- 18Fairchild summary / evaluative questionThe decision in Fairchild has created a large number of practical and conceptual problems. What lead the courts to make this decision?
- 19Scientific lacunaThe scientific impossibility of establishing factual causation in cases of mesothelioma creates a potential lacuna in which a claimant, suffering a serious loss, is unable to recover, and a defendant guilty of negligence cannot be held responsible. In the absence of a clear statutory remedy, Fairchild represents an attempt by the common law to achieve a just outcome notwithstanding the impossibility of establishing causation.
- 20ChesterEXTENDED: The court also extended the traditional 'but for' test in Chester v Afshar [2004]. FACTS: Chester was a failure to warn case in which a surgical patient was not told about a 1% chance of developing Cauda Equina. She developed the condition.
HELD, MAJORITY: The House of Lords found 3:2 in favour of the claimant, Lords Steyn, Walker and Hope suggesting the 'but for' test should be modified to acknowledge the procedure would not have occured when it did, had a warning been provided, and so the loss would not have occured. DISSENTING: Lords Hoffman and Bingham dissented, holding that the fact the patient would have had the procedure at some point meant the 'but for' test was not met. Given that the chance of developing the condition was the same whenever the claimant underwent the procedure, it follows that the failure to warn made no difference, in principle, to the outcome. - 21Policy considerationsThe majority emphasised the importance of policy considerations - holding doctors to standards (Lord Hope) and vidicating right to autonomy (all majority judges).
- 22Loss of chancePOLICY NOT DECISIVE: However, the policy consideration of holding doctors to high standands was not decisive in Gregg v Scott. FACTS: In this case the doctor failed to diagnose cancer in the claimant, reducing the chance of remission from 42% to 25%. HELD: In Gregg the 'but for' test was not statisfied, and the claim failed. COMPARISION: Arguably neither Chester nor Gregg satisfied the but for test, but Chester succeeded where Gregg failed. Why? These cases reveal the variable importance given to policy considerations.
- 23Legal CausationIn legal causation, indetirminate value judgments and policy considerations suffuse deliberations on the chain of causation.
- 24When considering legal causation, what the courts are doing is asking:"Two key questions concern courts:
1. Is the alleged novus actus 'reasonable'?
2. Should the defendant be held responsible?
These are 'value judgments' and there is no clear schema for making these findings, beyond the subjective judgment of the court." - 251. Is the alleged novus actus 'reasonable'?The importance of 'reasonableness' to legal causation is illustrated by comparison of McKew v Holland and Wieland v Cyril Lord. In McKew a claimant who carried a child downstairs, against medical advice was deemed unreasonable, and in Weiland, a claimant who accidentally tripped due to an impared range of vision, was not. Here, courts are weighing up responsibility by way of an indetirminate value judgment. It is unclear when fault should cross the threshold to break legal causation.
- 262. Should the defendant be held responsible?In Knightley v Johns, the court considered whether the defendant should be held responsible for the negligent driving of a police officer, responding to an accident caused by the defendant. The court couched this question in terms of 'foreseeability' however, it is perhaps between understood in terms of 'responsibility'. Courts can be reluctant to make overtly political decisions, and can obscure policy reasoning by couching it in causational terms. The obscuring of policy reasoning in this way adds further ambiguity to the law of causation.
- 27ConclusionCAN THE LAW BE IMPROVED?: I have attempted to show that the law of negligent causation is rife with practical ambiguities and theoretical incoherence. Can the law be improved? FAIRCHILD IS OK: It is difficult to argue that the correct decision in Fairchild would have been to bar recovery for every mesothelioma claimant. STATUTE: It has been suggested that a failure to find causation in Fairchild may have provoked parliament to legislate (and clarify the law) - but that is far from certain. CLARITY: There is also no certaintly that the statutory test for finding causation would have represented an improvement - the statute would still fall to be interpreted, and there is no guarantee that the test would have been clear. CONFINE: The principled approach would have been to confine Fairchild to its facts and not extend it, thereby creating more uncertainty, as in Hennegan. CHESTER BAD: It's better to have a Fairchild - an unusual solution to an unusual problem - than have a Chester - an unusual solution to a very common problem.
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- Tort Law Flashcards on Tort - Causation Essay, created by Sam Grimley on 28/07/2019.
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