Flashcards
Tort Workshop 3 - Causation
Cards in this deck (31)
- 1'But for' test- The ‘but for’ test: on the balance of probabilities, but for the defendant’s breach of duty, would the claimant have suffered their loss at that time and in that way?
- If no, factual causation is satisfied. The claimant would not have suffered their loss were it not for the defendant’s breach.
- If yes, factual causation is not satisfied, and the defendant is not liable. The claimant would have suffered their loss even without the defendant’s breach.
- Application of this legal principle is illustrated in the following case. - 2'But for' test Barnett v Chelsea and Kensington Hospital- The hospital breached the duty of care owed to a patient in that a doctor failed to carry out a proper examination.
- The patient died of arsenic poisoning after drinking poisoned tea.
- However, the evidence showed that he would have died even if the doctor had examined him. There was little or no chance that the antidote would have been administered to him on time even if he had been examined.
- The claim failed on causation: but for the defendant’s breach (failing to examine), would the claimant have died at that time and in that way? Yes.
- On the balance of probabilities, the claimant still would have died even if he had been examined by the doctor. Drinking the poisoned tea would have brought about his death whether or not he was treated by the doctor.
- Remember: the ‘but for’ test must be proved on the balance of probabilities ie that there is a more than 50% chance that the defendant's breach caused the claimant’s loss. So, a small chance that the accident might have happened anyway does not mean that the claim will fail. - 3'But for' test : Wilsher v Essex AHA- This case is an example of the 'but for' test failing and demonstrates the impact of the burden of proof on the claimant.
- The claimant was born prematurely and suffered a condition that caused him to go blind.
- There was evidence that his blindness could have been caused by any of five equally probable different factors, only one of which was tortious (ie an excess of oxygen given incorrectly). The others were all the natural result of his premature birth.
- The evidence suggested that these factors did not operate together to cause the blindness: one factor was solely responsible for the loss.
- The claimant had to prove that but for the defendant's breach he would not have suffered the blindness.
- As the standard of proof in civil actions is the balance of probabilities, the claimant had to establish that it was more likely than not (ie more than a 50% chance) that the blindness was caused by the breach as opposed to any of the other four possible factors.
- The claimant was unable to do this and so did not succeed. He could only prove that there was a 20% chance. - 4Factual causation in clinical negligence where breach is a failure to advise on risks Chester v Afshar- The surgeon failed to disclose to the claimant the very small risk of paralysis resulting from surgery. After the operation, the claimant suffered paralysis in one leg.
- The defendant argued that causation could only be proved if the claimant could show that she would not have had the operation had she been warned of the risk.
- The court took a more relaxed approach: where the breach is a failure to advise on risk, the ‘but for’ test is satisfied if the claimant can prove on the balance of probabilities, that if they had been warned of the risk, they would not have had the operation or deferred it to a later date.
- The claimant proved that ‘but for’ the surgeon’s failure to warn, the injury would not have occurred when it did and the chance of it occurring on a subsequent occasion (if the claimant had the operation later) was very small. - 5Factual causation where the ‘but for’ test cannot be satisfied Material contribution test (cumulative causes)- Test applied to factual causation when there is more than one cause of the claimant’s loss, and the causes were acting together (cumulatively) to cause the loss.
- Test established in following key case. - 6Material contribution test (cumulative causes) - Bonnington Castings v Wardlaw- Facts: tortious dust AND non-tortious dust operated together to cause the claimant’s respiratory disease
- Held: the ‘but for’ test failed and instead the court established and applied the material contribution test: on the balance of probabilities, did the defendant’s breach make a material (more than negligible) contribution to the claimant’s disease? Yes. - 7Material contribution test (cumulative causes) Bailey v Ministry of Defence- Facts: due to the claimant’s weakness, she choked on her own vomit, causing brain damage
- Weakness was caused by 1. Natural progression of the claimant’s condition (non-tortious) and 2. The negligent lack of care by the defendant (tortious). Medical experts couldn’t say that but for the negligent treatment, she would not have suffered the weakness and subsequent brain damage
- Held: claim succeeded. Claimant could prove that the negligent treatment (the breach) made a material (more than negligible) contribution to her brain damage. - 8Material increase in risk test McGhee v National Coal Board- Facts: claimant contracted dermatitis as a result of exposure to brick dust at work. Part of this exposure was tortious and part of this exposure was non-tortious
- ‘But for’ test failed: the claimant could not prove that but for the tortious dust he would not have suffered dermatitis
- Dermatitis was not a cumulative condition so that material contribution test also failed.
- Dermatitis could have been caused by a single exposure to the brick dust
- Held: court established and applied the material increase in risk test: on the balance of probabilities, the defendant’s breach materially increased the risk of dermatitis. The greater the exposure to the dust, the greater the risk of dermatitis - 9Applications of material increase in risk test- Currently, the material increase in risk test seems to be confined to industrial disease cases only, where there is scientific uncertainty over cause. For example, McGhee.
- It is most widely applied in mesothelioma cases. Mesothelioma is a lung cancer caused by exposure to asbestos dust. Application of the test can be seen in the key case of Fairchild v Glenhaven Funeral Services Ltd [2003] 1 AC 32. - 10Applications of material increase in risk test Fairchild v Glenhaven Funeral Services Ltd- Facts: claimant was exposed to asbestos dust by various employers during the 1960s. He later developed mesothelioma. Medical evidence could not say with certainty whether the disease was caused by a cumulative exposure to asbestos or by exposure to a single asbestos fibre. The ‘but for’ and material contribution test failed
- Held: the House of Lords applied the material increase in risk test and the claim succeeded. The defendant, by exposing the claimant to asbestos, had materially increased the risk of him contracting mesothelioma - 11Application of material increase in risk test: single agency cases- The material increase in risk test is applicable only to industrial disease, single agency cases.
- What do I mean by single agency? In McGhee and Fairchild there was only one ‘causal agent’ involved, dust. The medical evidence just could not prove that it was the tortious dust that caused the injuries.
- This is different to say, Wilsher (see Adapt element, ‘Factual causation: the ‘but for’ test). In that case the claimant's blindness could have been caused by any of five equally probable different factors, only one of which was tortious (ie an excess of oxygen). The claim failed.
- But couldn't you say that the negligence in Wilsher, by adding a fifth potential causative factor into the mix, had materially increased the risk of blindness? The answer is clearly 'no'.
- In Wilsher there was more than one causal agent of the claimant's loss (five possible agents). The courts in Wilsher relied on this to distinguish the case from McGhee.
- he reality of this, is that the test is currently confined to mesothelioma cases and to lung cancer cases caused by asbestos. - 12Loss of chance? Hotson v East Berkshire Health Authority- A child fell from a tree and broke his leg. The hospital was negligent in its treatment and the child was left paralysed.
- However, medical evidence indicated that there was a 75% risk that the broken leg would have left the claimant paralysed even without the negligent treatment. The 'but for' test therefore failed.
- Instead, the claimant argued ‘loss of chance’ ie that he had lost a 25% chance of recovery due to the defendant's negligence and should be awarded 25% of his losses.
- The House of Lords rejected this argument. The reality of the situation was that the child was most likely paralysed by the original fall. - 13Loss of chance? Allied Maples Group v Simmons & Simmons- Although the 'loss of chance' argument does not seem to apply to medical negligence or personal injury cases, the courts have allowed the test in cases involving pure economic loss.
- In Allied Maples Group v Simmons & Simmons, the claimant lost the chance to negotiate a clause in a contract as a result of the solicitor’s failure to advise.
- Causation was successful as the claimant proved that there was a real and substantial chance that the seller would have agreed to the clause. - 14Legal causation- Once factual causation has been established, it is then necessary to see whether, as a matter of law, the defendant may be held liable.
- The defendant is not liable for absolutely everything that follows from their breach.
- A line has to be drawn and certain subsequent events that occur after the breach may break the chain of causation.
- This is the principle of novus actus interveniens ie an intervening act. Whether a subsequent event breaks the chain or not will depend on the nature of what occurs. - 15Three types of intervening or novus actus events1. Acts of God or natural events
2. Acts of third parties
3. Acts of the claimant - 16Acts of God or natural events- An act of God breaks the chain of causation if it is some exceptional natural event. Natural events can include, for example, being struck by lightning, drowning in a flood, or the onset of disease.
- 17Acts of God or natural events Carslogie Steamship Co Ltd v Royal Norwegian Government- The claimant’s vessel was damaged in a collision with the defendant’s ship, for which the defendant admitted liability.
- The repairs were not immediately necessary, and the vessel was taken to the US for repair.
- On the way the vessel suffered heavy storm damage necessitating immediate repairs.
- The initial repairs took 10 days to fix, the storm damage 51 days.
- The defendant was liable for damages arising from the first collision but not the storm damage; the storm was held to be a novus actus interveniens.
- Natural events will not break the chain of causation if they could have been foreseen and the defendant should have taken them into account as events that were likely to happen. - 18Acts of third parties- Where the subsequent event is the act of a third party, the courts have viewed it as breaking the chain of causation if it was highly unforeseeable (something that was very unlikely to happen as a result of the defendant’s negligence).
- 19Acts of third parties: Knightley v Johns [1982]- The first defendant caused a road traffic accident.
- Subsequently, a police inspector negligently handled traffic control following the accident.
- This negligence led to the claimant, a police officer, being seriously injured (he had been ordered to travel down a tunnel against the flow of oncoming traffic).
- The first defendant successfully argued that the negligent handling by the police inspector broke the chain of causation between his negligence and the injury of the officer.
- The police inspector's actions were highly unforeseeable - 20Acts of third parties: medical treatment- When the act of third party is medical treatment, the courts are reluctant to hold that this breaks the chain of causation.
- When a defendant causes injury, they take the risk that the claimant may not respond well to medical treatment or that the treatment may not be perfect.
- The medical treatment will not break the chain unless it is so gross and egregious as to be unforeseeable. - 21Acts of third parties: medical treatment Wright v Cambridge Medical Group- The claimant was a child whom the defendant GP practice had negligently failed to refer to hospital promptly for diagnosis and treatment and who subsequently suffered permanent hip injury.
- When the patient was eventually referred to the hospital, the treatment she received was negligent.
- The judges agreed that the hospital had been negligent in their treatment of the claimant but that this negligence was not “such an egregious event, in terms of the degree or unusualness of the negligence…..to destroy the causative link between the defendants’ negligence and the claimant’s injury”(per Lord Neuberger).
- Elias LJ in the same case went on to state that it could not be said that “the negligence in this case [of the hospital/ third party], although serious, deserved to be characterised as gross or egregious so as to break the chain of causation….”.
- The defendant GP was liable for the full extent of the claimant’s loss, regardless of the negligence of the hospital. - 22Acts of the claimant- Sometimes, the courts will be required to consider whether the claimant's own actions break the chain of causation (ie where the claimant does something which causes them further harm).
- The legal test for an act of the claimant breaking the chain of causation is that the act must be highly unreasonable.
- It is rare for the claimant’s unreasonable behavior to break the chain of causation as this would normally be dealt with under the defence of contributory negligence.
- This produces a fairer result, whereby the defendant is still liable for the claimant's loss, but the claimant's damages are reduced to reflect the extent to which they contributed to their loss. - 23Acts of the claimant: McKew v Holland & Hanmen & Cubitts (Scotland) Ltd- The claimant suffered a leg injury due to the defendant’s negligence, which resulted in impaired mobility.
- Later, he descended a steep staircase without a handrail. His leg buckled, he fell and broke his ankle.
- Held: the claimant acted very unreasonably and broke the chain of causation between the breach and broken ankle. - 24Acts of the claimant: Wieland v Cyril Lord Carpets Ltd- Due to the defendant’s negligence, the claimant wore a neck brace which restricted her ability to use her glasses properly. As a result, she fell down some stairs and injured her ankle.
- Held: the claimant had acted carefully (she had help from her son when descending the stairs). Her actions did not break the chain and the defendant was liable for her ankle injury - 25The effect of a novus actus interveniens- The effect of a novus actus is, as we have mentioned, that it breaks the chain of causation. The defendant will still be responsible for any loss before the novus actus event but will not be responsible for any loss after it.
- 26Apportionment- Apportionment is a calculation to apply once factual causation has been established.
- Where there are multiple tortious factors which are known to have caused part of the loss, the courts apportion liability between the defendants in a way that produces a practical result, providing compensation to the claimant while recognising the respective fault of the defendants. - 27Apportionment: Fitzgerald v Lane & Patel- The claimant crossed the road at a pelican crossing when the lights were red for pedestrians.
- The first defendant driver collided with him and the claimant was thrown from the bonnet of that car into the road, where he was run over by a car driven by the second defendant.
- Both defendants had been negligent, and the claimant was equally at fault. It was impossible to say which of the two collisions had actually caused the injuries, or to what extent each had contributed.
- Held: each defendant was responsible for 25% of the claimant's losses (50% of the claimant's losses were not recoverable, representing the claimant's own negligence).
- However, note that in mesothelioma cases, under s 3 of the Compensation Act 2006, defendants are jointly and severally liable. This means that any or all of the negligent employers who exposed the claimant to asbestos will be liable to the claimant for the whole sum of damages, but they can recover contributions from each other if necessary, to make the distribution of the loss fair. - 28Apportionment: Multiple sufficient causes- In cases such as Bonnington, the claimant suffered one loss.
- What happens where the claimant suffers damage as a result of the defendant’s negligence and then, some time later, a second event occurs which causes exactly the same damage, or worsens the damage already caused?
- In these situations, the events are not linked and there are two or more distinct losses that can be attributable to distinct causes.
- There is more than one defendant each of whom pass the ‘but for’ test, but one action comes after the other (or if the later action is non-tortious, it has caused the subsequent harm).
- Is the original tortfeasor responsible for the loss caused by the other? - 29Apportionment: Performance Cars v Abraham- A third party negligently collided with the claimant’s Rolls Royce.
- The Rolls required a respray to remedy it. Two weeks later, a second collision between the same Rolls Royce and a different car, driven by the defendant, caused similar damage which also required a respray to repair it.
- Held: as the requirement for a respray already existed before the second collision, there was effectively no damage arising from the second collision. - 30Apportionment Multiple sufficient causes: contrasting case law - Baker v Willoughby- Due to the defendant’s negligence, the claimant suffered a leg injury (pain and stiffness). Subsequently, the claimant was shot in a robbery and his injured leg had to be amputated. The robbers could not be found.
- Held: first defendant should continue to be liable for the original injuries to the leg, beyond the time of robbery (even though he no longer had pain and stiffness). The intervening tortfeasor (robber) should compensate for any additional losses caused. - 31Apportionment Multiple sufficient causes: contrasting case law - Jobling v Associated Dairies- Due to the defendant’s negligence, the claimant injured their back and as a result suffered reduced earnings.
- Some time later, the claimant suffered a further back injury, (non tortious), arising from an illness unconnected to the accident. He was unable to work at all.
- Held: the defendant’s liability ceased at the point that the further back injury developed. He did not have to compensate the claimant for the ‘vicissitudes of life’.