Factual Causation - created from Mind Map

Página 1

'But for' test

Simple cases

Multiple potential causes

Portray of loss of evidence

Barnett v Chelsea and Kensington Hospital Management Committee [1969]

FACT: Drank tea cotaining arsenic - doctor turned him away - died

HELD: Even though the doctor has failed to take reasonable care he would have died anyway - claim failed

Wilsher v Essex Area Health Authority [1988]

FACT: Baby born prematurely - excessive amount of oxygen - blindness & brain damage - might be caused by the other 4 factors

HELD: Couldn't prove that was more probable than not it was caused by doctor's negligence rather than the other 4 factors - claim failed

EXCEPTION: cumulative disease

Exposure to toxic substance

Indeterminate cause in employment context

Multiple sufficient causes

Bonnington Castings v Wardlaw [1956]

FACT: should have more ventilation - breathed in both guilty (higher level of dust) and innocent (inevitable consequence) silicon dust - penumoconiosis

Holtby v Brigham & Coawan [2003]

HELD: materially contributed to his harm is sufficient - does not have to be the sole cause - can claim

D only pay compensation to the extent of his contribution

McGhee v National Coal Board [1973]

FACT: didn't provide washing facilities - innocent and guilty (stay onhis skin after working day) dust - dermatitis

Fairchild v Genhaven Funeral Servies [2002]

HELD: materially increased his harm is sufficient - can claim

FACT: worked for 5 employers and exposed to asbestos - mesothelioma

Barker v Corus [2006]

HELD: resurrecting McGhee but did not follow Wilsher - enough to show tbat exposeing him to asbestos has materially increased his risk of harm

FACT: exposed to asbestos by 2 employers - one in existence, one was insolvent, self-employed

Sienkiewicz v Greif [2011]

HELD: confirmed Fairchild exception - materially increased his risk of harm - but reduced 20% compensation due to self-exposure

s3 Compensation Act 2006: employers should be liable for the whole amount though not wholly responsible for icreasing the risk

FACT: Asbestos at both working place and living area

HELD: SC held should apply Fairchild - majority view Fairchild should only apply on mesothelioma case

Baker v Willoughby [1970]

Jobling v Associated Dairies Ltd [1982]

FACT: car accident - pain & stiffness - new employment - bank robbery - hold up on a scrap metla yard - shot - amputated

HELD: D continued liable - legal policy came in & but for test didn't apply - supervening event did not obliterate effect of first nnjury

Ratio: If the second event is tortious event, don't apply but for test

FACT: damaged his back at a work accident - suffered unrelated back disease

HELD: did not follow Baker but applied but for test - Employer only paid for the injuries suffered up to the time of the back injury.

Ratio: If the second event is natural event, apply but for test

Hotson v East Berkshire Area Health Authority [1987]

FACT: fell from tree and injured head - doctor failed to diagnose - few days later gave appropriate treatment - permanent disability within head - 75% chance he would have suffered permanent disability even though doctor acted appropriately and diagnosed him at earlier stage

HELD: must have >50% chance of recovery