#17355 - Causation - GDL Tort Law

Again res ipsa loquitur can be used in straightforward cases.

The But For Test – but for the breach of duty the damage would not have occurred.

• Barnett v Chelsea and Kensington HMC [1969] – Doctor assumed nightwatchman had been drinking too much, failed to carry out a proper examination. Patient died overnight from arsenic poisoning.

  • Had the doctor examined Mr Barnett at the time there would have been nothing the doctor could have done to save him. Hospital not laible.

Claims are usually decided on an all or nothing basis

• Hotson v East Berkshire AHA [1987] – Hospital failed to diagnose a fracture in schoolboy. His bone tissue died and he suffered a permanent disability.

  • 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 a 25% chance that he would have made a full recovery.

  • HoL held that C had failed to show on the balance of probabilities that it was the breach of duty that caused damage as 75% chance that it would happen anyway.

  • Rejects the idea that people can sue doctors for the loss of a chance to get better

• Wilsher v Essex AHA [1988] – Junior Dr gave premature baby too much oxygen, resulting in blindness. There were however other possible causes of the damage. Trial found HA liable.

  • HoL ordered a retrial - claimant had to prove that the breach was that which probably caused the damage. Where there are multiple causes, it must be proved that the tortuous cause was the most likely cause on the balance of probabilities.

Unfairness and the But For Test (Judge made exceptions that are inconsistent)

• Cook v Lewis [1952 - Canada] Two hunters (defendants) who negligently fired their guns in the direction of the claimant at the same time. Could not prove which arrow hit, and there was as =50% chance (i.e. not >50% chance) that it was either party.

  • Supreme Court of Canada held both defendants were liable. Thus claimant could sue either defendant for the full amount of the loss.

  • This approach was upheld in California SC in Summers v Tice 33 (1948)

• Sindell v Abbott Laboratories (1980) – SC California. Hundreds of Defendants who had produced a drug that Sindell had taken durign pregnancy which led to her developing cancer.

  • Supreme Court of California applied a Market Share Rule: claimant could sue any number of manufactures for negligence according to their market share of the product.

  • Held that Ds were better able to bear the cost of harm, and it would incentivise product safety.

The McGhee/Fairchild Principle (Materially Increased Risk of Harm)

• McGhee v National Coal Board [1972] – Claimant contracted a rare skin disease due to working with brick dust. The Defendant failed to provide washing facilities thus Claimant cycled home still covered in dust.

  • Two possible causes of disease: dust exposed to at work/dust (tortuously) exposed to on journey home. But for test would fail.

  • Lord Wilberforce: ‘It is scientifically impossible for the claimant to show how significant the breach was.’

  • Held where the breach ‘materially increased the risk’ of harm the breach probably caused the damage.

• Fairchild v Glenhaven Funeral Services [2003] – conjoined appeal. Three claimants had contracted mesothelioma, a form of lung cancer contracted by exposure to asbestos. This can be caused by exposure to a single fibre of asbestos, and gets no worse with further exposure.

  • Each of the claimants had been exposed to asbestos by a number of different employers. They were unable to demonstrate, and medical science was unable to detect, which employer exposed each of them to the one fatal fibre.

  • HoL held unjust to deny C’s a remedy, and Lord Bingham said this outweighed the unjustness of holding a defendant liable for damage they had not caused.

  • Thus held where the facts are such that the ‘but for’ test cannot be reasonably or fairly applied, the ‘materially increased risk’ of harm test may be used.

  • Further held that C’s could claim full amount of damage from just anyone of their employers.

  • Lord Rogers: single agent requirement - Fairchild exception only applies when all of the potential causative agents operate in substantially similar ways.

• Weir (2002): There is no clear ratio as to when this test can be applied. Lord Bingham and Lord Rodger list six requirements each while Lord Nicholls calls for considerable restraint.

Other claims of medical negligence

• Chester v Afshar [2004] - Claimant had surgery. There was an inherent risk in this surgery and something did go wrong. Claimant argued that the surgeon was negligent for not informing patient of the risk. Claimant couldn't honestly say that she would not have had the surgery if she had been warned of the risk.

  • HoL made a modest departure from but for test. Held (3-2) that the right to make an informed decision is so important that it needs to be recognized by awarding some compensation.

  • Lord Steyn: “her right of autonomy and dignity can and ought to be vindicated by a narrow and modest departure from the traditional causation principles”

• Gregg v Scott [2005] – Claimant had lump under arm. Doctor negligently diagnosed this as benign. 9 months later realised it was cancerous. This reduced his prospect of disease free survival from 42% to 25% after ten years.

  • House of Lords held that the loss of a chance is not a recoverable head of damage in medical negligence claims.

  • Some policy concerns re the potential liability of the NHS.

  • E. Peel – their Lordships wanted to avoid opening the floodgates, either by casting the net of liability too widely or by rendering the law too uncertain.”

• Sanderson v Hull [2008] – C developed an intestinal infection shortly after starting work as a turkey plucker. Argued that she should have been provided with gloves and should have been warned about not putting her hands in her mouth after handling the poultry.

  • Held this was a breach of duty, but did not...