what is causation? (incl. academic)
- Blackburn - ‘the relation between two events that holds when, given that one occurs, it produces, or brings forth, or determines, or necessitates the second’
- OR more simply - there must be a direct link between D’s negligence/omission and the damage/harm suffered by the claimant
what two tests need to be satisfied in order to establish causation?
factual and legal causation
what is factual causation? (incl. case)
‘but for’ test - (i) identifies the necessary conditions of a (harmful) occurrence; and (ii) eliminates irrelevant considerations (i.e. Davis v Bunn)
what happened in Davis v Bunn?
- C brought an action saying that if D had shouted a warning to him he could’ve avoided the accident
- held to be irrelevant as even if D had shouted, the accident would’ve still occurred so the but for test was not passed
what is legal causation? (incl. case)
- concerned with ascription of responsibility for the negligent occurrence
- Stapley v Gypsum Mines (Lord Asquith) - the ‘real’, ‘substantial’, ‘direct’ or ‘effective’ cause(s) of a harmful outcome
- effectively searching for wrongdoers
what happens in cases where a supervening event occurs? (incl. 2 cases)
- where the supervening event is tortious, there is no reduction in damages (Baker v Willoughby)
- BUT where the supervening event is non-tortious and a ‘vicissitude of life’, there is a reduction (Jobling v Associated Dairies)
what do the Baker and Jobling cases tell us about causation rulings?
the courts are unafraid to make highly discretionary decisions when it comes to causation
just apportionment of harm in causation cases? (incl. case)
- Rahman v Arearose Ltd - there must be pragmatic and just apportionment of losses based on the degree of wrongdoing each did.
- apportionment tailored to the harmful wrongdoing of D1 (employer) and D2 (surgeon); bore 25% and 75% responsibility for C’s PTSD respectively
Laws LJ in Rahman (quote + commentary)
- judges seek to fashion ‘a decent and rational system for the compensation of innocent persons who suffer injury by reason of other people’s wrongdoing’
- decency implies principle as it is the extent to which a wrongdoer is culpable, but a pragmatic approach implies policy
test for a novus actus interveniens? (incl. case)
The Oropesa - an NAI is something unwarrantable, unreasonable, extraneous or spontaneous; ‘out of a clear blue sky’
when will 3rd parties be liable for a tort? (incl. 3 cases)
- Home Office v Dorset Yacht - 3rd party conduct must be ‘very likely to happen’
- Lamb v Camden LBC - ‘a degree of likelihood amounting to almost inevitable’
- Ward v Cannock Chase DC - ‘virtually certain’
occasioning harm in causation? (incl. case)
Stansbie v Troman - D held liable for reasonably foreseeable loss. he had occasioned the harm which would otherwise not materialise.
what are the key cases in proof of causation? (x5)
- McGhee v National Coal Board
- Wilsher v Essex Area Health Authority
- Fairchild v Glenhaven Funeral Services
- Barker v Corus
- Sienkiewicz v Greif
McGhee v National Coal Board
- C exposed to brick dust and contracted dermatitis. D had breached the duty owed to C by failing to provide adequate washing facilities
- at the time, the medical knowledge was unable to help C establish factual causation
- pro-claimant development: causation held to be established as C could show that the breach materially increased the risk to which C was exposed
- the burden of proof is on D to dispute that they were not the cause
- other factors also played a role, including the National Coal Board’s ‘deep pockets’
Wilsher v Essex Area health Authority
- pro-defendant return to orthodoxy: causation must be proved on the balance of probabilities (Lord Bridge)
- contrasts with the CA’s decision in which they applied McGhee and found that other factors may have played a role in D’s (a nurse’s) negligence
Fairchild v Glenhaven Funeral Services principle and application
- exposure to asbestos; duties breached by more than one employer
- pro-claimant again - in most cases causation shall be established on the balance of probabilities, however, in exceptional cases such as Fairchild, the McGhee approach is applicable to find causation
- because it was thought Fairchild was an exceptional case, the Lords held each employer as jointly and severally liable
Fairchild v Glenhaven Funeral Services decision-making process
where D:
a) breaches duty owed to C and brings about
b) a material increase in risk, liability can be imposed on D for
c) the full loss
(vis. notwithstanding that there might have been other causes)
Fairchild v Glenhaven Funeral Services on relevant considerations
‘rejecting the claims would have been deeply offensive to instinctive notions of justice’
Barker v Corus
- the extent of liability is confined to the extent that D materially increased the risk to which C was exposed (placing a restrictive gloss on Fairchild)
- relevant concerns for apportionment of damages: (i) duration of exposure, (ii) intensity of exposure, (iii) the type of asbestos
- policy consideration (Lord Hoffmann): Fairchild lead to an opening of the dams; brought for the ‘pressure of a sea of claimants’
the Fairchild exception in statute
The Compensation Act 2006, s.3 - under the current law any negligent defendant owing a duty of care to C, could, if necessary be ordered to bear 100% liability regardless of the extent of their involvement with C. normally however, under s.3 all Ds will be held jointly and severally liable.
Sienkiewicz v Greif
- The ‘Fairchild exception’ applies to cases of mesothelioma involving a single defendant
- There is no requirement for a claimant to show that the defendant’s breach of duty doubled the risk of developing the disease
academic commentary on the Fairchild exception
Lord Rodger - ‘it is important that judges should bear in mind that the Fairchild exception … represents what the House of Lords considered to be the proper balance between the interests of claimants and defendants in these cases’
academic commentary: traditionalism
- Fleming: proof on the balance of probabilities; direct, anecdotal, particularistic evidence; non-statistical evidence
- probabilistic evidence: relevant to non-traumatic injuries (e.g. injuries arising from exposure to toxic pollution)
- courts: typically uncomfortable with probabilistic evidence
alternative approaches: USA
- market share liability - orthodox requirement (proof of causation on the balance of probabilities) waived (Sindell v Abbott Laboratories)
- cancerphobia treated as a form of mental injury (Ayers v Jackson Township)
