#4651 - Causation - GDL Tort Law

Factual Causation: – single or multiple?

• Physical link or nexus btw the defendant’s breach and the claimant’s damage

• More difficult with multiple causes – hard to work out what the cause was

  • E.g. car accident – was it the defendant’s bad driving – or the state of the road – or the weather - or the car caused the accident through a fault

• Temporal problems: where do you draw the line - courts will try and look to the immediate cause

First Test = “The But For” test

But for the defendant’s breach – would the claimant have suffered the damage anyway: Cork v Kirby

• If yes – they would have suffered the damage anyway – then the defendant is not the cause

• If no – then the defendant is the cause

• Illustration in Barnett v Chelsea & Kensington H.M.C: C went to A&E with stomach ache – seen by a nurse and the nurse took his symptoms and contacted the doctor by phone – doctor was on duty but was himself feeling ill – she described symptoms and the doctor said he probably just had food poisoning, told her to tell patient that if it got worse he should contact his GP – he got worse overnight and died – estate sued the hospital claiming that the doctor’s negligence cause his death

  • Doctor owes duty of care

  • Breach in failure to attend

  • Did the breach cause the damage – ‘but fo’r the doctor’s omission – would the claimant have died anyway? answer was yes – whether the doctor had seen him or not he would have died – because the patient had arsenic poisoning – nothing the doctor could have done – because no cure

    • Doesn’t mean the doctor won’t be disciplined – by General Medical Council etc. – gross misconduct – in breach of employment contract etc. – but in terms of negligence – no liability

• Bolitho v City & Hackney Health Authority: Bolitho was in hospital due to respiratory problems. Nurse paged the doctor – unfortunately the bleep for the doctor didn’t go off because the batteries were flat – so the doctor failed to turn up and attend to Bolitho

  • Doctor argued that even if she had attended – she would have concluded that nothing should be done at the moment, but the C argued that a good doctor would have intubated

  • But another group of doctors agreed with her – they wouldn’t have done anything differently – so used the But for test: he would have suffered the damage anyway even if she had attended – she wouldn’t have done anything

But For test doesn’t always work

Two causes working together (Multiple concurrent causes):

1. Cumulative Causes (A + B) = tort

• Material contribution or increase approach: (McGhee)

• Bonnington Castings Ltd. v Wardlaw: employee sued his employer due to dust at work making him ill – employers’ liability claim

  • Lots of dust – some there due to tortious negligence - Other dust was there naturally

  • Impossible to prove scientifically that the dust caused by the tort (‘the bad dust’) caused the lung disease

  • Court said that provided that the dust ‘materially contributed to the damage’ then you win – pragmatic approach because can’t do it scientifically

• McGhee v N.C.B: changed it to material increase – did it materially increase the likelihood of damage: plaintiff got dermatitis – claimed it was because of the workplace– prolonged contact with brick dust, workplace should have provided adequate washing facilities: but you can get dermatitis naturally without dust –‘Did the employer materially increase the likelihood of the damage?’ - YES

McGhee rarely used outside industry / industrial injuries – but:

• Mountford v Newlands School: allowed small boy to play against much bigger boys – did the school materially increase chance of injury – YES

2. Multiple Independent Causes:

• Balance of Probabilities: most common/most likely (Wilsher case)

‘Does the increased (tortious) risk outweigh the original (non-tortious) risk?’

• Wilsher v Essex A.H.A: premature baby that went blind – sued the junior doctor – but in court –evidence that there are 6 causes of blindness in premature babies – only one of these was a tort – the others all natural

  • Wilsher couldn’t prove that the tort by the doctor was more likely than not the cause

  • Where the risk of damage from the non-tortious cause is 50% or more, the claimant will always fail to establish factual causation

• “Loss of Chance Approach” – essentially the same thing as balance of probabilities

  • Hoston v East Berkshire HA: injured his leg - then got a complication : can lead to a limp – he sued the hospital saying that if they’d given him full treatment at the time then he wouldn’t have got complication

    • When it went to court – found that the complication would have had a 75% chance of having been suffered anyway – loss of a chance was 75% - more than 50 – therefore more likely than not going to get the condition regardless – so on the balance of probabilities his claim failed

  • Gregg v Scott: (HL) – loss of chance will not be used for personal injury, but potentially for consequential economic loss

Which test to use?

• Independent and cumulative cases: Distinction btw multiple causes which act cumulatively to cause the loss and those which act independently

• It has been suggested that the approach in Bonnington and McGhee more suitable to cases involving industrial injuries and the Wilsher more relevant to medical negligence

• However – recent case of Bailey v Ministry of Defence: medical negligence case – medical experts unable to say whether negligent treatment was on the Balance of Probabilities the cause of the claimant’s cardiac arrest and brain damage – but were able to determine that the brain damage was caused by the negligence working together with the natural progression of the claimant’s condition –(i.e. working cumulatively rather than independently) – CA therefore applied the McGhee test and concluded that factual causation was satisfied

• Usually - if the causes were acting independently of each other – then apply the Wilsher approach – prove on balance of probabilities that the defendant’s breach caused the damage

• But where they act cumulatively – then the material contribution/material increase approach is more relevant

• Problems arise where it is unknown if they acted cumulatively or independently – Fairchild - didn’t know which employer was responsible – uncertain whether it was caused over time or whether it was caused by one individual fibre: HL adopted the approach from McGhee

  • Fairchild v Glenhaven Financial Services Ltd: Sued employer because of lung cancer: plaintiff had worker in the asbestos industry – had worked for different people in the industry – in order to get the disease you need ‘one fibre’ of asbestos – D claimed he could have got it from any of the factories he had worked at (doesn’t always show itself for many years) – so claimed that they couldn’t prove that it was his client that had caused it:

  • HL confirmed McGhee – had increased the likelihood that he was get the disease: complicated case (went through all the courts) – even though HL confirmed McGhee – useful to look at what CA decided:

    • If a number of potential defendants – then the claimant should sue one of them and that one should play a proportion of the cost of the damage – e.g. if he had worked for 4 factories then he can only claim 25% from one of them – apportionment

    • HL thought this approach was unfair – thought you should sue one person using McGhee – and if you win they are liable for the whole sum

    • But if the defendant believes that other defendants are to blame – they can sue the other potential defendants for a contribution

  • Better to give the claimant the total amount and then let the defendants fight it out

  • Approach taken by HL here was confirmed in Sienkiewicz v Greif – also dealing with medothelioma

• S.3 of the Compensation Act 2006 – confirms the approach in Fairchild : you sue one defendant and they pay out in totality and they can seek compensation from other potential defendants

• HL: DECIDED THAT THE APPORTIONMENT APPROACH DOES NOT APPLY TO MESOTHELIOMA - BUT DOES TO OTHER CASES WHERE THERE ARE MULTIPLE CUMULATIVE CAUSES

Pure Economic Loss

• Allied Maples Group Ltd v Simmons & Simmons: someone lost a chance to make a business deal – speculative economic loss – if there was a real/substantive chance you were going to make the money – then you can claim for

Multiple Cumulative Causes: Use Apportionment (apart from in Fairchild above)

• Use Apportionment

• Fitzgerald v Lane and Patel: he ran across the road with a red light – he sued both of the two drivers who hit him: judge held that they both caused it - 1/3 each (plaintiff, 2 drivers)

  • But the plaintiff was also to blame – contributory negligence – so plaintiff was 50% liable and the others 25%

Multiple Consecutive Causes: not building on each other - distinct

• Tort followed by another tort

  • Performance Cars v Abraham: collision btw two cars due to negligence: two weeks later a second collision hit the same Rolls Royce : CA concluded that as the requirement for a re-spray already existed before the 2^nd collision – effectively no damage from the 2^nd one so they were not liable

  • Baker v Willoughby: defendant was negligent and injured the plaintiff at work

    • Several years later the plaintiff was shot in the leg and needed amputation

    • Second tort does NOT obliterate the 1^st: can claim until death: but only for the damage caused by the first tort - the interfering tortfeasor should compensate for additional losses

• Tort followed by a natural event

  • Illness/natural event does obliterate the tort

  • Jobling v Associated Dairies Ltd: could only sue from the tort until the natural...