Causation

Causation

1. Performance Cars v Abraham: Where C has already suffered a loss and D's wrongdoing causes no additional damages, then D is not liable. He did not cause the loss.

   • Baker v Willoughby: Where C's loss has two causes, the first wrongdoer must pay for all the loss he has caused but no more.

2. Subsequent events

   • Baker v Willoughby: Lord Reid: A claimant cannot recover for future losses which he will not suffer. So if, but for D's act, he would have earned for 20 more years, then he can recover losses in respect of the 20 years. But if a subsequent event reduces P's life span to 2 years, then he cannot recover for the full 20.
     • Jobling v Associated Dairies: Lord Wilberforce said that these cases were about trying the best not to over or undercompensate the claimant and that this was all the court were doing in Baker. In this case, justice lay the opposite way so the subsequent event could not be disregarded.
     • Jobling v Associated Dairies: Lord Keith: The vicissitudes principle ensures that the claimant is not put in a better position than he would have been but for the accident.
   • Baker v Willoughby: A loss can have more than one cause. Where a subsequent event becomes a concurrent cause of the loss, then it does not diminish the damage. Here, the loss was the loss of amenity from not being able ot use C's leg; when C's leg later had to be amputated, the amputation was merely a concurrent cause, along with D's act, of the loss of amenity.
     • Jobling v Associated Dairies: Lord Edmund-Davies said that he found the approach in Baker unrealistic becuase it compensated the claimant for a loss which no longer existed. But Baker was not the same fact situation so has not be overruled by Jobling.

3. Standard of proof

   • Barnett v Chelsea Hospital: It is for the claimant to establish, on a balance of probabilities, that D caused the harm.
   • Hotson v East Berkshire: The plaintiff must prove on a balance of probabilitites that the negligent act or omission at least materially contributed to the loss.
   • Wilsher v Essex Area HA: P suffered blindness. This could have been due to excess oxygen being negligently administered to him by D or it could have been due to his premature birth. The onus was on P to show that the negligence caused or materially contributed to the loss. Where there is more than one possible cause, there is no presumption that D's negligent act was one of the causes.
   • Allied Maples Group v Simmons & Simmons: Where P's loss depends on the actions of a third party, P must prove as a matter of cauation that he had a real or substantial chance rather than a specualtive one. If he succeeds in doing so, the evaluation of the chance is a matter for quantum of damages. The range of proven causation goes from just substantial to virtualy certain, but these principles were not expressed in percentage terms.
     • Stapleton: There is an anomaly in this case. Where loss was dependent on the hypothetical actions of TP, C does not need to prove that such action was probable. C will recover even if the chances of such action were less than 50%. recovery is allowed, but onyl to the extent of the loss of the chance.

4. Loss of a chance

   • Hotson v East Berkshire: The point did not have to be decided becuase C failed on causation, but Lord Bridge said on the loss of chance issue that he knew of no principle in English law which would allow D to deduct from the damages a percentage to reflect the chance that P would have suffered the loss anyway. Lord Mackay refused to rule out the possibilty of a claim for loss of chance.
   • Gregg v Scott: Due to negligent late diagnosis, C's chance of survival for 10 years after developing a tumour were reduced from 42 to 25%. He could not recover. A majoirty of the HL held that there was no claim for loss of chance of a cure and on a balance of probabilities, C could not show that but for the negligence he wouldnt have come to an early death. They would not allow an exception to the normal causation rule to allow a percentage reduction in the prosepcts for a favourable outcome as a recoverable head of damage.
   • Rothwell v Chemical Cleaning: Neither the risk of future illness nor psychiatric harm consequent on worrying about that risk materialising give rise to causes of action in tort.

5. Departure from the 'but for' test

   • SAAMCO/ Banque Bruxelles: D gave negligent advice which P relied on when it entered a transaction. As a result of falling property prices, the loss suffered from that transaction was made worse. The House of Lords did not think D was liable for that loss notwithstanding that, but for D's negligence, P would not have entered the transaction and thus would not have suffered the loss. Lord Hoffmann said that the duty of care does not exist in the abstract and that although D owed a duty of care, the extra loss did not fall within that duty. It was not the type the parties would have thought D was taking responsibility for. Lord Hoffmann used the example of a doctor who negligently told a mountaineer that his knee was fine for climbing, as a result of which the mountaineer went climbing. But for the diagnosis, he would not have gone but we would not consider the doctor liable if the mountaineer injured himself on the trip in a way unconnected to his knee injury.
     • Stapleton: This outcome can be exaplained on the basis of a factual assumption that C would have entered into another transaction and suffered the market fall loss anyway.
   • Fairchild v Glenhaven: C was exposed to asbestos by several employers and consequently developed mesothelioma. It could not be proved which exposure was responsible for the disase. But for causation would not have allowed C to recover even though all employers owed him a duty of care. The House of Lords made a special departure from the but for test in order to avoid unfairness. Proof that each employer's wrongdoing had materially increased the risk of contracting the disease was sufficient to satisfy causation. This was not meant to undermine the normal test. The employers were joint and severally liable so C could sue any or all of them.
     • Barker v Corus: C was exposed to asbestos by two employers and through self-employment. The House of Lords held that the employers were severally liable. Damages due to each were calauclated according to the relative degree of contribution to the risk of mesothelioma. This was calcualted according to the length and intensity of exposure attributable to each source of employment.
       • Compansation Act 2006: S.3 reversed Barker v Corus in so far as apportionment in mesothelioma cases is concerned. This restored the Fairchild position.
         • Sienkiewicz v Grief: C's mother was exposed to asbestos both by her employer and in general life becuase of the area where she lived. The claim against the employer was successful. Under the 2006 Act, causation is proved by a material increase in the risk; material meaning more than minimal.
         • Durham v BAI: The liability of employers who exposes an employee to asbestos is not for the risk of mesothelioma, but for the actual disease. Risk of illness is not a loss recognised by the law. The Fairchild test is a different standard of causation. It means that an employer is liable for an act which may have caused the loss, and he is liable in respect of the whole damage caused. If no mesothelioma develops, there is no loss and so no cause of action.
   • Chester v Asfar: C was able to claim for damage suffered in an operation which was performed well where her doctor had failed to warn her of the risk that eventuated. She could not prove that had she been warned, she would never have had the operation, and the negligence had not increased the risk of the harm. The but for test was not satisfied. However, the House of Lords approach the issue as one of the scope of the duty. It is within a doctor's duty of care to warn patients of risks in procedures he proposes. The failure in the case to warn had meant that C could not make an informed choice. As the harm suffered was within the scope of the doctor's duty, C could recover.

6. Corr v IBC Vehicles: C was able to recover damages for her husband's suicide. He had developed depression following an accidetn caused at work by his employer's negligence. The HL held that injury (includign psychiatric) was foreseeable and within the employer's DoC. The suicide was a direct reult of the illness and so was not a novus actus. The chain ofcausation was not broken. Sedley LJ: To cut the chain of causation and treat the man as responsible would be to make an unjusitifed exception to principles of causation. HL: the suicide was not an informed act, but a response to the tort.