#19881 - Steel Justifying Causation Exceptions - Tort Law

Sandy Steel – Justifying Exceptions to Proof of Causation in Tort Law

Line: exceptions to the general causation rules are justifiable to enforce D’s secondary moral duty

Only individuals who have a causative relationship to another’s injury should be liable to that person.

Exceptions allow the material increase test – ie in Sienkiewicz, 18% was a material increase.

Objections to having exceptions to the normal causation rules:

1. Moral – what justifies departing from the principle of individual responsibility (see second line).

2. Rational limitations – once proof of balance of probability causation isn’t needed in one context, how do you limit that exception to that context. If we are to limit them, the line must be arbitrary.

3. Absence of rational principles leads to uncertainty in the law

Morgan doesn’t think Fairchild justifies its departure from the ordinary causative rules. The limits of Fairchild is if causation is impossible to prove because of uncertainties in scientific knowledge, not factual impossibility of proof, and only if the possible causes operate in substantially similar ways to cause the injury.

Exceptions can be justified when

1. D has wrongfully caused injury to an indeterminate claimant

2. Where C has been the victim of a wrongfully caused injury at the hand of D who may have caused it

When you breach a tort duty – ‘primary’ duty – there arises ‘secondary’ legal relations between the duty-bearer and right-holder. The secondary moral duty is to apologise and, upon reflection of D, take steps to compensate the victim and make it as if the tort never happened. How could there be a secondary-duty-based justification for departing from causation as these duties only arise when D causes C’s injury?

Participate in schemes to increase the probability the victim will be compensated, even if you don’t know who the victim is. D1 and D2 have each wrongfully injured one of C1 or C2. They have a secondary duty of compensation to one of C1 or C2 each. This might result in the defendants compensating each other’s victim if they compensate either C1 or C2 each. Tadros – if you can’t fulfil your duty, you have a duty to find someone who can.

Following this, the first justifiable exception is:

• Causative defendant indeterminacy rule – in the D1 D2 situation, each D is liable to contribute to a fund in the amount of the injury that he has, on the balance of probability, caused

Each D is under a secondary moral duty to pay compensation to their claimant. If, by chance, D1 ends up compensating C1 which he did not, in fact, injure, the two Ds have entered an agreement to compensate the other’s victim on their behalf. If D1 did in fact injure C1 and paid compensation to them, there is no issue. The Ds should pay compensation into a fund held by the court.

But what if the injuries need different amounts of compensation? Under this rule, each D would pay the lesser amount because we only know each of them for a fact caused the lesser amount. But if the law said each defendant may be liable to the more damaged victim if they can be held liable for a loss their tort may have caused. This means they would both be liable to compensate the more damaged victim in full. This leads to overcompensation concerns – why not just halve the difference between defendants? (my opinion)

What if one defendant is untraceable? The remaining defendant still pays the same amount, but know half the money is going to a claimant he didn’t injure. But the receiver of the damages, whomever the traceable D actually injured, is authorising the compensation to be split thus, so D can’t complain

Second justifiable exception:

• Indeterminate claimant rule. If D has wrongfully injured one of a number of claimants, but we don’t know who on the balance of probability, D should be liable to pay the same compensation into a fund which is split between all the possible claimants.

For example, if an ambulance negligently arrives too late to save 3 people but would have only had enough supplies to save one. None would recover damages under the current law because there is only a 1/3 chance each claimant would have been saved but for the ambulance’s negligence. Under the indeterminate claimant rule, each C is entitled to 1/3 the damages.

Jutsifications:

1. If each claimants tells D to put his money in a fund, he is complying with how his actual victim wants the compensation to be dealt with

2. Someone who wrongfully injures someone comes under a moral duty owed to no one in particular to contribute to the relief of suffering. Ie if D kills someone, he can’t compensate the dead person. So he must do the next best thing, which is contribute to the relief of suffering.

Third justifiable exception:

• Defendant indeterminacy rule. If c has been the victim of a tort at the hands of a defendant in a group but doesn’t know which one on the balance of probabilities, each D should be liable to C in full or proportionate to the probability D was the cause of C’s injury.

Example – 2 hunters. Negligently fire in the direction of C. One of them hits C but we don’t know who. English law may hold each D liable in proportion to the 50% probability it was them. As confirmed by Zurich Insurance v International Energy Group, Baker v Corus – proportional liability – is good common law for non-mesothelioma cases following s.3 Compensation Act 2006.

Why? Beever thinks in 2 hunters each has violated C’s right to bodily integrity by either causing injury or preventing C from claiming damages because of causative issues. Beever says preventing C from enforcing his right to bodily integrity is itself a violation of that right.

What is a right to bodily integrity? Firstly that D does not cause reasonably foreseeable physical injury to C negligently. Secondly that D, after infringing that first right, has a secondary moral duty to compensate. So there are 2...