Tort lecture - 4

Tort lecture - 4

1. two aspects of causation

   • 1) factual causation - in order to recover damages , the claiamnt must prove that the defendants breach of duty was a matter of fact , the true cause of the harm suffered
   • legal causation - although defendant did cause the harm was it so far removed that it was foreseeable

2. the but for test - the claimant needs to satisfy this , but for the defendant conduct , would the claiamnt have suffered loss? ,other words would the client have suffered the loss in any event

   • barnett v Chelsea and Kensington hospital management commitee (1969) - a man went into A&E after he drank tea and became unwell, was seen by doctor but doctor sent him away without any treatment telling him to go to the GP, he later died from arsenic poisoning , not to do with what doctor did and how treated but fact that he drank tea , this is his fault, he was going to die in any event because he was poisoned , doctor is not liable because he didn't cause the harm , doctors owe a duty of care to patients , doctors breach the duty because they failed to treat them , doctors failure to treat him did not cause him to die , therefore you cannot hold the doctor liable for negligence

3. the but for test : all or nothing

   • if you look at causation you have to start with the but for test , look at standard of proof:balance of probabilities, success if you show 51% , ALL -> where the claiamnt succeeds in showing that it is probable at least 51% likely that the breach caused the loss nothing -> if a claimant can only show less then 51% likelihood that the breach caused the loss , if claimant can show 29% likelihood that breach caused the loss the claiamnt will not succession the claim as it has to be over 50%
   • Hoston v east Berkshire (1987) - a 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 sever 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 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 25% chance that he would have made a full recovery , judge awarded damages of £11,500 based of 25% of £46,000 which was what would have been awarded if the claiamnt had shown that the defendant conduct had caused the avascular necrosis
     • have he been treated on day he had accident and didn't suffer the extra 5 days , he might have had 25% of avoiding disability, he should not be compensated as it is 25% and not above 50%, evidence shows that there was 75% chance that it would happen in any event , as soon as you go over 50% you get damages , if he proved his case to 65% chance you are going to give him 100% of damages but if he provide his case to 25% chance you are going to pay him 0%, they are responsible for extra 5 day of suffering so that can get compensation for that , even if they diagnosed it correctly on the day they went to hospital he would probably happened to him 75% chance it would have happened in any event
   • wilsher v essex AHA (1988) - a premature baby was given too much oxygen by a junior doctor , the baby suffered from a condition affecting his retina which left him totally blind in one eye and partially sighted in the other, the condition could have been caused by the excess oxygen he had been exposed to or it could have been caused by four other factors unrelated to the oxygen by related to the premature birth . trial judge found healthy authority liable , the defendant was in breach of duty , a junior doctor owes the same standard of care as a qualified doctor , there where 5 other competing factors that could have caused blindness, 85% chance it would have happened , although it was wrong and negligence it won't happen in any event , multiple causes means 25% each , therefore did not establish negligence , there breach did not cause the harm
   • Gregg v Scott (2005) - the claimant found a lump under his arm , he consulted the doctor who negligently diagnosed it as innocuous when in fact it was cancerous , this lead to a 9 month delay in the claimant receiving treatment , during this period the claiamnt condition deteriorated and the cancer spread, this reduced his prospect of disease free survival from 42% to 25% , delay was caused the claimant to undergo immediate high dose chemotherapy , the claiamnt brought an action based on his loss chance of a disease free survival , if they had correctly treated and diagnosed 9 months earlier he would have a 42% chance of recognition , that went down to 22% chance, he did not get compensation as its below 51%, we do not compensate for a loss of chance as its not recoverable but for factors negligence on miss diagnosis

4. problem with the but for test

   • does the but for test sometimes lead to unfairness ? YES it does but it needs certainty and needs to set standard somewhere, need to be flexible and certain , needs certainty as it seems unfair
   • cook v lewis (1952) - Canada case , two hunter who negligently fired their shotguns at same time where the claimant was , claimant is struck by a single pellet, the claimant couldn't establish which of the hunters actually shot him , but for not shooting would the claiamnt be harmed , yes because you have another shooter , hence split liability 50/50 this is the fairest thing to do , but for test does not work here so should be disregarded
   • summers v tice (1948) - plaintiff and defendant went on a hunting trip ,plaintiff provided each defendant with directions on how to safely fire their weapons , while attempting to shoot their target , both defendants fired in plaintiffs direction , plaintiff suffered injuries to his rights eye and face , plaintiff sued both defendant in a negligence action
   • sindell v abbott laboratories (1980) - plaintiffs mother took drug while pregnant with the plaintiff , as a result of recviign the drug the plaintiff developed cancer as a adult, the drug was manufactured by the defendant, five drug companies (defendant) and by about 195 other companied not names in the suit , the defendants together produced 90% of the drug , the plaintiff is unable to identify which company produced the actual drug her mother took - claimant injured due to takign this drug , many manufacturers have produced this drug , burden of proof couldn't be established which manufacturer built the fragrance , the claimant suffered harm , but for takign pill they would not have suffered the harm , multiple defendants suffer this harm , look at the market share of the manufacturer and each can be liable according to their shares, if you have two and dont know who it is , 50/50 or use market approach to decide liability

5. exceptions to the but for test - supervening events

   • baker v Willoughby (1970) - the claimant suffered an injury to his leg when the defendant ran into him in his care , he suffered pain and loss of amenity and had to take a lower paid job, he tried various different employment some of which he had to discontinue because of his injury , he was employed sorting through scrap metal when he sustained a further injury to his leg , he was on his own when two men came in and demanded money , when he refused they shot him in his injured leg, as a result of the shooting , the claiamnt had to have his leg amputated , the defendant argued that the second injury removed the very limb from which the earlier disability had stemmed , and that therefore no loss suffered thereafter can be attributed to the defendants negligence , arguing that the second injury submerged the effect of the first and that all loss thereafter must be attributed to the second injury , the defendant remained liable for the loss of amenity and lower earning capacity after ampu
     • the claimant was involved in car accident , and his leg was injured as a result of this he takes a job in scrap yard , two robbers comes to burglar and they shoot him in same place where he was injured , he lost use of his leg , the otherr driver could be sued , but for the driver negligence the claiamnt would have feared lost because he was shot in the leg later , better to sue the driver , egg shell skull rule applies - already a dodgy legal when the burglar shot him , its not worth suing them
   • jobling v associated dairies ltd (1982) - jobling a bother slipped on the floor at his place of work due to his employers negligence , he injured his back which caused him to reduce his earning capacity to 50% of what it was , he then developed an independent back condition which was unrelated to the injury which left him unable to workk , claiamnt was entitled to recover damages beyond the onset to the back condition , a natural event occurs in that operated in some injury , so no compensation , says I wouldn't have t stop working if it was not of your negligent , he was paid compensation up until the point he suffered the back disease , only pay compensation for the loss you suffered, back disease was not because of employee but because of natural event

6. exception to the but for test : the material increase in risk approach

   • there is some injury but there negligence has made it worse , increased risk of the harm occurring , can't essentially say that its one event
   • McGhee v NCB (1972) -the claiamant worked at the defendants brick works , his normal duties did not expose him to much dust but he was then asked to work on the brick kilns in a hot and dusty environment , the defendant was in breach of duty in not providing washing and showering facilities after work, claiamnt hence cycled home still covered in the brick dust , claimant contracted dermatitis , argued that every particle of the dust inhaled played its part in causing the onset of the disease , wanted washing facilities to wash of the dust before he went home , absence of these facilities where the cause of his condition as it had increased the risk of the claimant contracting the disease, the damagee did materliase , claiamnt had difficulty in showing causation due to difficulty of finding evidence , the claimant only had to demonstrate that the suit attributed to the breach of the duty materially increased the risk of him contract dermatitis
   • Fairchild v glenhaven funeral services ltd (2003) - the claimant contracted mesothelioma, an asbestos related disease the risk of which cannot be attributed cumulatively , unlike asbestosis , the damage cannot be apportioned between employers , its not possible to apportion damage , therefore full damage cane obtained from any single employer , number of kids contracted a condition , all of the employees put hand up and said they were in breach , owned a duty of care and they breached it , couldn't establish which of the defendant exposed them to the condition , medical evidence showed that the disease does not gradually build up, but triggered any time by one single fibre , all employers could be said to have increased risk , hol said all employees are to be held liable on basis that each have increased the risk of meziphamilio , claimant does not have to prove which of the employe was responsible for causing it.
     • in some cases establishing material increase in risk is sufficient to discharge claiamnt burden proving causation , otherwise the cleat claim is due to fail because of the but for test

7. exception to the but for test : the vindication of rights approach

   • chester v Afshar (2005) - a lady goes in for a back operation and when she asked doctor about the risk, doctor said well I haven't crippled anyone yet , goes ahead with the operation , the operation is performed as it should have been , there was natural occurrence of the risk occurred and confined her to a wheelchair , she brings claim that you should have told me that this would happen , so she can decide if the wanted to go ahead , to vindicate her and her rights , the court said she can get compensation
   • Gregg v Scott (2005) - lump under arm case
   • Bailey v ministry of defence (2008) - hospital was looking after patient who has to have stone removed , the operation became complicated and she underwent several operation in part duty of negligence , she became so weak that when she went to throw up her gag reflected and couldn't clear airway , and this affected her with brain damage , defendant may be liable when it made a material contribution to the injury , each operation made her more weak and could not clear her airways , cumulative cause acting to cause weakness, but for the defendant negligence the injury would not have happened , the but for test claim would not succeed, the hospital materially contributed to the totality of baileys condition

8. exception to the but for test : the material increase in risk approach to non-mesothelioma cases

   • Gregg v Scott (2005) - lump under arm case
   • Sanderson v hull (2008)
   • wooden v j docter (2008) - the judge had been entitled to conclude that the negligent dispensing of the wrong contraceptive pill had caused or materially contributed to the contraceptive failure and subsequent pregnancy of the claimant , not one exception of Fairchild

9. application of the Fairchild exception in the assessment of damages

   • Fairchild v glehaven (2003) - there was multiple of defendant , should claimant get case against all defendant , and get damages of market share or one defendant and get how much they should pay , all employees should be liable , liability should be joint, one defendant pays 100% of damages and they are financially secure enough to deal with other defendants and as long as you can establish claim they can sort it up amongst themselves
   • barker v corus (2006) - liability should not be joint , liability to pay compensation should be proportioned according to he various contribution to the risk , calculated by the length of time each of the claim was employed by each of the defendant , this case temporarily reversed the Fairchild exception to mesothelioma damages , allowing apportionment , it was quickly overused by the legislature with section 3 of compensation act 2006
   • sienkiweicz v greif (2011) - the claimant had contracted mesothelioma , the issue was the could full damages be awarded to one defendant , where the defendant was only 18% to blame for the initial exposure , yes this is because damages are not to be apportioned in mesothelioma cases according to compensation act s.3 as a general rule non-mesothelioma cases is that an independent cause must be at least twice as likely to have caused the damage than any other indepdent factor
   • compensation act 2006 section 3 - defendant would be liable for the whole of the damage , puts Fairchild back into play only in relation to mesothelioma , decision In barker potentially left claiamnt unable to recover a proportion of their damages insinuation where one or more of the defendant had subsequently become insolvent , parliament enacted this act which provides that where she conditions , each employer will be jointly and severally liable for all of the damages not just proportion at harm that is attributable to them.